158 Mo. 457 | Mo. | 1900
This is an action in ejectment instituted in the circuit court of St. Louis to secure the possession of certain real estate described in the petition.
A trial was had by the court, a jury having been waived, which resulted in a finding and judgment for the defendant, and plaintiff appealed.
The petition is in the usual form in such cases; the answer a general denial. On July 7, 1883, William Collins, who is the common -source of title, conveyed the lot in question to J. Oliver, who is described in the deed as being “of the city of Chicago and State of Illinois.” Afterwards on July 11, 1890, John Oliver described in the deed as being “an unmarried man of St. Louis in the State of Missouri,” gave a deed of trust on said lot to H. C. Sanford, trustee for Isaac Drexel of New York; and on the same day John Oliver and S. H. McMillan conveyed said lot, together with other property by warranty deed, to Olive M. Hilton. This deed however, was not recorded until the 7th day of May, 1894. On July 23, 1894, plaintiff commenced suit in the circuit-court of the city of St. Louis against J. Oliver on a special tax bill issued pursuant to an ordinance of the city of St. Louis passed for the purpose of improving Lee avenue, in front of the lot in question. In November following, an amended petition was filed, making Olive M. Hilton a party
Afterwards, qn the 22d day of July, 1895, a sheriff’s sale was had under special execution issued on said judgment, and plaintiff became the purchaser and received a sheriff’s deed therefor. On October 9, 1895, the trustee in said deed of trust conveyed said lot by trustee’s deed in the usual form to Elizabeth Werrmeyer, in pursuance of a foreclosure sale under the deed of trust. Afterwards, in December, 1896, Elizabeth Werrmeyer conveyed the lot in question to Julia Meredith, the defendant herein.
The evidence shows that J. Oliver, described in the deed from William Oollins as being “of the city of Chicago and State of Illinois,” who executed the deed of trust on the lot in question to H. O. Sanford, trustee of Isaac Drexel, and the warranty deed above mentioned to Olive M. Hilton, was one and the same person. It further appears that Olive M. Hilton was dead at the time the tax suit was begun, and that at the time of her death she was a resident of the State of Colorado. The record also shows that at the time the tax suit
The plaintiff claims title by purchase at execution sale under the sheriff’s deed in pursuance of á sale on the special execution issued on the judgment rendered in the suit on'the special tax bill against J. Oliver and Olive M. Hilton.
It is contended by counsel for defendants that no title was acquired by plaintiff’s purchase at the sheriff’s sale under the judgment in the tax suit, because at the time the suit was begun Olive M. Hilton was dead and the proper parties defendant were not before the court.
On the, other hand, the contention of plaintiff, as stated by his counsel is that, “Even if the evidence was sufficient to warrant the court in finding that the alleged conveyance to Olive M. Hilton was sufficient to pass title to her to the property in question, and sufficient to warrant the court in finding that she was dead at the time suit was brought against J. Oliver and Olive M. Hilton, nevertheless inasmuch as the evidence also showed that the title to the property in controversy then stood of record in the name of Olive M. Hilton, and inasmuch as no proof was adduced showing notice to plaintiff of her death at the time when said suit was brought, the court erred in holding that said notice to Olive M. Hilton was not sufficient to subject any such right, title and interest as may have passed by said deed to said Olive M. Hilton, to the lien of the tax bill declared upon in said suit, and to the judgment and execution thereon to plaintiff’s purchase thereunder.”
The point for decision, therefore, is whether the tax suit instituted against Olive M. Hilton, after her death, authorized a judgment and sale thereunder, so as to vest title to the
But it is urged by appellant that inasmuch as the tax suit was not for the purpose of securing a personal judgment against Olive M. Hilton, being against the property and not against the owner, “it is not necessary for the purpose of the special tax bill suit under the St. Louis charter, that there should be any actual party in court.” This position in our opinion is untenable. In Vance v. Corrigan, 78 Mo. 94, an action between the holder of a tax deed and the holder of a prior unrecorded deed to the same lot, both parties claimed title from the same grantor. In speaking of the nature of the action in that ease, the court says: ,“The proceeding is really against the land, although a personal defendant is necessary to the validity of the proceeding, but no personal judgment can be rendered in the suit, and it is sufficient to proceed against the record title when the true owner is unknown.
That case, however, is not authority for the position that suit may be brought on a special tax bill against a dead man, because the title of record happens to stand in him. At Ms death he ceases to be the owner and the title passes to his heirs nr devisees. In Gitchell v. Kreidler, 84 Mo. 472, it was said by this court: “While the judgment is against the property and not personal, still the tax is assessed against
In order to divest the landowner’s title he must be made a party to the proceedings. Referring to the charter of the city of St. Louis under which the tax suit was brought, we find that the lien of the special tax bill is only given against the land, and that the proceedings to enforce the lien only affects the right of the parties made defendants therein. Manifestly, then, in any proceeding to enforce the lien of the special tax bill, the owner is a necessary party, and such has been the uniform holding of this court.
The precise question came before this court in Jaicks v. Sullivan, 128 Mo. 177. In that case suit was begun on a
No essential difference is observed between the charter of the city of St. Louis under which this proceeding was instituted and the provisions of the Kansas Oity charter construed by this court in the Sullivan case. The former like the latter required suit to enforce the tax lien to be brought against the “owner of the land,” and before the rights of any person to the land can be affected they must be made parties to the proceeding. This has been the uniform ruling of this court in proceedings for the enforcement of special tax bills for street improvements. The proper parties not having been made defendants, no title was acquired by the sheriff’s deed under which plaintiff claims.
In view of this conclusion we do not deem it necessary to discuss the other proposition urged in plaintiff’s brief. Many authorities have been cited by counsel for appellant which we do not consider applicable to the peculiar facts of the case, and for that reason have not referred to or commented upon them.
The judgment of the circuit court will be affirmed.