99 Mo. 13 | Mo. | 1889
Lead Opinion
This is a suit in equity to set aside a judgment rendered in the DeKalb circuit court, and to cancel a deed made by virtue of a sale under an execution issued upon that judgment. The court granted the prayer of the petition, and also set aside other deeds to subsequent purchasers.
The history of the title on the one side and the other, prior to the judgment and deeds which were set aside by the decree of the court, is as follows : The land in suit consists of one hundred and twenty acres in DeKalb county. Benjamin Graves owned this land, and other lands in Atchison county. He died a resident of the state of Kentucky, in the winter of 1873 and 1874, leaving a will whereby he devised these Missouri lands to the children of two deceased sisters. These devisees
This brings us to the judgment and deeds, which were set aside by the decree in this case. In 1S78, suit was instituted in the DeKalb circuit court, in the name of the state to the use of the collector against Benjamin P. Graves and James Ewart, to enforce the state’s lien for taxes due on the one hundred and twenty acres for the years 1870 to 1876. Ewart was served with summons,' and there was an order of publication as to Benjamin P. Graves, who had been dead for four or five years. John Pritchard became the purchaser of the land at a sale under an execution issued on this judgment. He conveyed to Crenshaw, who conveyed a part to Reece, and the residue to Samuel Cook, the same person.
The relief prayed for is asked upon the allegations that James Ewart had no title whatever to the land, that plaintiffs were not parties to the tax suit, and that Benjamin P. Graves, who was made a defendant and notified by publication only, was dead when the tax suit was commenced.
These suits to enforce the tax lien must, under the statute, be brought against the owner or owners of the property. Persons not made defendants are not affected by the judgment. We have repeatedly held that the purchaser at these sales acquires, and acquires only, the title and interest of the parties who are made defendants. Powell v. Greenstreet, 95 Mo. 14, and cas. cit.
Again, a judgment recovered in a suit begun and prosecuted against a dead man is void. Bollinger v. Chouteau, 20 Mo. 89 ; Williams v. Hudson, 93 Mo. 524; Crosley v. Hutton, 98 Mo. 196. Assuming, as alleged by plaintiffs, that James Ewart had no title to the land, then Pritchard acquired nothing by his purchase, for the judgment against Benjamin P. Graves is void, both at law and in equity.-
We do not overlook the fact that the will of Graves had-not been recorded in this state. Persons dealing with lands, located in this state, are not charged with constructive notice of a foreign will, until it is either proved anew in this state, or until a copy of the will and foreign probate is recorded here as permitted to be done by our statutes. Keith v. Keith, 97 Mo. 223. As to the rights of these defendants, Graves is to be deemed as having died intestate. But the heirs, who are the plaintiffs, were not made defendants, and the present
The question then arises whether the plaintiffs are entitled to the relief granted them. It is not alleged that the judgment was procured by fraud. There is, indeed, no proof of any fraud in that behalf, and no relief can be granted on that ground. If the plaintiffs are entitled to have that judgment and deeds set aside, it is because they constitute a cloud upon their title. The plaintiffs are not in possession, nor is the land vacant. On the contrary it is in the adverse possession of some of the defendants. Since there is nothing on the face of the judgment to show that Benjamin P. Graves was dead, it will be taken as granted that, if the plaintiffs were in possession, they might have it and the deeds thereunder set aside, on the ground, that they constitute a cloud upon the title. But whatever the law may be elsewhere, it is settled in this state that a party having the legal title to land, and being out of possession, cannot invoke equitable jurisdiction to remove a cloud on such title. This has been the steady ruling of this court for years, as will be seen by an examination of Davis v. Sloan, 95 Mo. 552 and the cases there cited. The rule, however, does not apply where the plaintiff lias only an equitable title, and the legal title is in the defendant. Mason v. Black, 87 Mo. 329. The rule in most of the states is thus stated by Mr. Pomeroy : — When the estate or interest to be protected is equitable, the jurisdiction should be exercised whether the plaintiff is in or out of possession, for under these circumstances legal remedies are not possible; but, when the estate or interest is legal in its nature, the exercise of the jurisdiction depends upon the adequacy of the legal remedies. Thus, for example, a plaintiff out of possession, holding the legal title, will be left to his remedy by ejectment, under ordinary circumstances. 3 Pom. Eq. Jur., sec. 1399, note 4. .In this case the plaintiffs’ title is purely legal.
We have endeavored to settle the rights of .the parties in this suit, and to that end have examined the numerous questions made in the briefs, but we cannot disregard the established rule just stated. With this result we are not at liberty to express any opinion on the validity of the first partition sale.
The plaintiffs have misconceived their remedy.
The judgment must be and is reversed, and the petition dismissed.
Rehearing
On Rehearing.
The motion for hearing in this case is overruled, but on the suggestion of respondents, that they should be allowed to show possession of the land by them, the judgment dismissing the bill is set aside, and the judgment of the circuit court is reversed, and the cause remanded.