215 Mo. 213 | Mo. | 1908
This is a suit to determine the title to an undivided one-eighth interest in the north twenty-five feet of lot 11, block 8, in Merriam Place addition to Kansas City, Missouri.
The facts are as follows: Mrs. Winnefred Kohle, owner and in possession of the premises in controversy, died on April 26, 1891, intestate, leaving eight children as her only heirs, the plaintiff being one of the
The defendant claims title under a tax deed, dated November 16, 1894, and recorded in the recorder’s office of Jackson county, Missouri, on November 27, 1894. The property was sold 'for the city taxes of 1892, and a certificate of purchase issued November 17, 1892, to E. D. Latimer, the purchaser, who on September 19, 1893, assigned his certificate of purchase, “and all his right, title and interest” in the property, to the defendant. At the time of the sale, said George Kohle, as life tenant by the curtesy, was in possession of the property, and was also in possession when the defendant obtained his tax deed, and continued in possession until February 1, 1895, when he made a quitclaim deed to defendant and turned over to him the possession.
The rental value of the property at the time George Kohle sold his life estate to defendant was $30 per month. Mr. Kohle testified that the consideration of the sale of his life estate was $60 cash, and defendant’s agreement that he would keep- the plaintiff, George Kohle’s youngest son, until he became of age, when the defendant was to turn over to him his share in the property. Plaintiff became of age on November 19, 1901, over three years before the filing* of this suit.
On March 30', 1894, one of the heirs, by warranty deed, conveyed to defendant his one-eighth interest in the property, and at different times during the years 1895 and 1897' the defendant procured deeds from all the remaining heirs, except the plaintiff.
The court rendered judgment in favor o-f plaintiff, and against defendant for costs. Defendant appeals.
As a general rule, one tenant in common cannot
In Hinters v. Hinters, 114 Mo. l. c. 29, it is said: “Tenants in common occupy a confidential relation to each other, and because of this relation there is an implied obligation on the part of each to sustain and protect the common title. It is, therefore, a general rule that if a tenant in common buy up an outstanding title or incumbrance, the purchase will be deemed to have been made for the benefit of all cotenants, the other cotenants being- bound, however, to contribute their respective 'proportions of the consideration paid for the outstanding title or incumbrance. [Freeman on Cotenancy and Partition (2 Ed.), secs. 151, 156; Allen v. DeGroodt, 105 Mo. 442.]”
But it is said for defendant that the rule is otherwise where, as in this case, the person acquiring the tax title was not in possession at the time of acquiring it, and under no' obligation, legal or otherwise, to pay the taxes for which the land was sold. These taxes were assessed before and became due after the death of Mrs. Kohle, who< is the common source of title. When she died, on April 26, 1891, the land in question descended to her children subject to the curtesy rights of her husband, George Kohle, to' whose rights and possession defendant succeeded, by purchase; February 1, 1895. Whatever possession or right defendant acquired under this purchase was not adverse to plaintiff, or to any of the children of Mrs. Kohle, it being-only for the lifetime of her husband. On September
The certificate of purchase did not, of course, pass the title, but only entitled the purchaser, or the defendant as his assignee, to a deed passing the title at the expiration of two years from the time of the tax sale, during which time any of the éoteiiants had the right to.redeem the land; and defendant’s purchase of the certificate of purchase, as before stated, amounted to nothing more than a redemption from that sale, and inured to the benefit of his wife and her cotenants.
The defendant further contends that as this suit was not commenced “within three years from the time of recording of the tax deed,” and “within one year after the removal of” plaintiff’s disabilities, it cannot be maintained.
It appears that section 60' of the charter of Kansas City provides that “any suit or proceeding by or against the purchaser at a tax sale, his heirs or assigns, for the recovery of the real property or any interest therein sold for taxes, or any suit or proceeding to. defeat or avoid a sale or conveyance of real property sold for taxes under the provisions of this article, shall be commenced within three years from the time of the recording of the tax deed, and not thereafter; provided that where the person claiming to own such property or any interest therein shall be an infant or lunatic, such suit may be brought at any time within one year after the removal of such disabilities to recover the interest only of such infant or lunatic in such real property.”
Defendant, however, is in no' position to avail him
It follows that the judgment should be affirmed. It is so ordered.