Gitchell v. Messmer

| Mo. | Oct 15, 1885

Black, J.

Ejectment commenced against both Messmer and Socrates Newman, but dismissed us to the. latter. Lina Newman before her marriage with Som rates Newman owned the property-in question. There are children of ■ that marriage now living. In 1865-Newman and wife leased, the property to Bigelow and Jeffs, for a period of ten years with right of renewal., Jeffs assigned, his interest in the’ lease to Bigelow and Griffin, who continued to be the lessees until 1874, when Bigelow became sole tenant and. so, continued until. 1875; when the lease expired. There was no. renewal; but for failure to pay rents, etc., the lease was forfeited’ and ■surrendered to the lessors. Bigelow then became tenant from, month to month, until 1880. when, .defendant; Messmer, became the tenant of Mrs. Newman paying the rents to her alone. The plaintiff claims title under a judgment recovered in a suit commenced by the collector in 1878, to enforce the lien against the property for unpaid taxes thereon for the years from 1871 to and including 1876. Mrs. Newman was not made a defendant in.that suit, but Socrates Newman,'Bigelow and Hilton were. This ejectment suit was begun in 1881.'

It is not claimed that the purchaser at ’’the sale for unpaid taxes acquired any interest in the property .because of the fact that Hilton was a defendant to the tax suit, nor can it be maintained that he acquired any title which will assist him in this suit because Bigelow was. a defendant, for the lease was forfeited and surrendered’ in 1875, and Bigelow had no right to or in the property when this suit was .commenced. Even his right, as tenant from month to month had expired before that time.

Mrs. Newman, as we have seen, was- not made a*defendant to the tax suit, and it is hardly necessary to say that her interests in and to the property were not; affected by those proceedings. If the plaintiff, acquired any interest through the sheriff ’ s tax sale it was that of her husband and that alone. Now by the statute (sec. 3295), he could not ■ make any valid conveyance of the rents, issues or products of the property, or of any interest in the real estate. Any such conveyance by him alone would be of no force or effect whatever. Without her consent, evidenced by deed, he had no right to sell the-rents of her lands. Silvey v. Summer et al., 61 Mo. 253" court="Mo." date_filed="1875-10-15" href="https://app.midpage.ai/document/silvey-v-summer-8005146?utm_source=webapp" opinion_id="8005146">61 Mo. 253. His marital interest, whatever it may be, is not vendible on execution for his debts. He could not by his own act deprive her of the. use of the property. It is clear the plaintiff is in no better position than the-husband.

It must follow that plaintiff should fail in this-suit, though the tax suit was an effort to enforce a lien which attached to the property. Affirmed.

All concur..