96 Mo. 237 | Mo. | 1888
This is an ejectment suit to recover the possession of one hundred and sixty acres of land in Yernon county. The answer of defendant, besides being a general denial, sets up that plaintiff claims title to the real estate described in the petition under a quitclaim deed from R. A. Boughan, executed on the fifth of October, 1882, and that the only claim said Boughan ever had to said real estate ‘ ‘ was under a sheriff ’ s deed, executed at the May term of the circuit court, in pursuance of a judgment for taxes rendered against defendant at the May term, 1881, of said court, and a sale thereunder at the November term, 1881, of said court; that
Plaintiff, by replication, after admitting the fact of the sheriff’s sale to Boughan, denies all other allegations of the answer. On the trial the court found the issue thus presented for the defendant and rendered a decree in conformity with the prayer of the answer, and it is from this decree that plaintiff appeals.
There is abundant evidence in the record to establish the fact that Boughan, at the tax sale, stated to other bidders that he wanted to buy the land in, for the defendant, who was his neighbor, and that other bidders were thereby induced to refrain from bidding. The fact thus established gave defendant a clear right to ask the court either to set aside the sale, or. treat Boughan as a trustee, and plaintiff who purchased of Boughan while defendant was still in possession of the land, by quit-claim deed, took the title subject to defendant’s equities. Griffith v. Judge, 49 Mo. 536; Ridgeway v. Holliday, 59 Mo. 444; Mann v. Best, 62 Mo. 491.
The instructions asked by plaintiff and refused, to the effect that if after said sale defendant refused to treat Boughan as a trustee, he was precluded from doing so in the present suit, were properly refused, if for no other reason than that the pleadings presented no such issue, but simply tendered the issue as to whether Boughan bought the land at the tax sale as
On the whole record the judgment is for the right party, and it is hereby affirmed.