*1 1920. v. Larson. property, Mm the sale and deed tax loss of if the as in this were case. not, void, but if were valid, imputed for laches owner could If be merely allowing* failing* be redeem property, Ms for lose the title to he would taxes, sold valid, void or such tax and deeds were sales whether hardly The is the law. re- it contended which would be per per principal an- interest of the cent turn of the the holder out for taxes num sums required, city charter which deed, invalid by plaintiffs, all that a court of which was done require in such cases. conscience could urged coun- the learned reasons are other There why plaintiffs, said tax brief, bill in their sel however, not neces- void, which, sary determine. for us to right lower court and is Ragland, concur. CC., Brown
affirmed. opinion by foregoing PER CURIAM:—The Small, opinion adopted of the court. All of the as the C., is judges concur. PETERSON et LAR al. ERIC LARSON
SALLIE Appellants. al., SON et One, 2, 1920. Division December Removing Judgment QUIETING Not Pleaded: TITLE: Cloud: „ alleges petition merely plaintiffs, are A which Nevertheless. ques- the land in fee and claim that the owners by intendment, and, that defendants claim some ad- tion plaintiffs, ashing the court to ascertain and verse to that title, law, an- action will not authorize at determine states title, upon be to of a cloud would award removal allegation petition equitable that de- Nor relief. will indicating they placed a deed claim some fendants have record n MISSOURI, SUPREME COURT OF prayer title and that said deed set authorize the set- aside* deed, allegation ting where contains no aside statute, authorize cancellation; facts would its *2 spite provide complete language, of its a scheme broad does not procedure itself, procedure of within must conform in all but respects provisions case the Code. But so as this objection concerned, not to does conform pleadings substance, and is technical formal rather than of adjudged since court found the deed
nothing, conveyance simulation, it was a mere hence practical consequence it is no whether be cancelled not. Redemption by 2. TAX SALE: Wife’s Land: Husband: Purchase and Deed from Certificate Holder. A with oc- husband who his wife cupies property pay her home as a assumes to the taxes is good regard interests, to act in and with due faith for her bound payment delinquent taxes, penalties and a him of interest, receiving naming grantee, a deed him as- from holder, bought the certificate who had at a tax permitted years, under a law which it to be redeemed within two only redemption property, amounted and not to a purchase by him, equity acquired and in whatever he inured died, leaving to her; and if she had meantime minor chil- by him, dependent upon him, dren after wife’s death charge' property, fiduciary the same continued continued, relation acquire and he could not an interest children, delinquent hostilé to the but of the taxes penalties to the certificate-holder and the deed from him . himself constituted a of the from sale, purchase by not a him. 3. -: Life Tenant: Trustee duty It is the Remaindermen. preserve life tenant remaindermen; the estate for the may upon and while not it' be incumbent a father as a life tenant property belonging to redeem to his wife a tax sale had be- beginning yet fore it, life if he does redeem it is for the benefit of the entire estate—the remainder as well as doing his iife estate—and if in so he receives a to himself alone, it inures to the benefit her children reason of his trust relation them. Appeal from Jackson Circuit Court.—Hon. T. J. See Judge.
horn, Affirmed.
285 Mo.] 1920. 121 Laughlin appellants.
L. A. (1) responsive finding Tlae of the court pleading’s judgment -upon is er- the record and the App. 448; Koeh- roneous. Boeckler v. 10 Mo. Railroad, Mo. 581; Conran, ler v. Lee 213 Rowland, 275 v. Mo. Murray, 404; 58; Burton, v. Minor v. Hauser 256 Mo. (2) 558; 377. 228 Brandt v. 177 W. Bente, Mo. S. ground refusing grant a new trial on the
court erred
testimony made'by
mistake
Eric Larson.
App.
Ridg;e
129
1909;
Johnson,
Sec.
R. S.
v.
Mo.
Beveridge
App.
43
Martin,
597;
Rickroad v.
Mo.
546;
App.
Rolling
State,
Mill
v.
v.
Co.
Chetlain,
231;
Cooper
Hope,
479;
v.
Mé.
v.
635;
Warren
Ga:
Vaughan,
61' C.
Darden,
Ark.
S.
Trummier
*3
Dudgeon
Small,
v.
1004;
v.
182
Uhl
220;
Hacklev,
S. W.
Inghram Harding, Deatherage, D. Hook respondents. & Stinson asking
(1) court set aside The count, second only granted quit-claim which relief could deed, the by equity clearly determinative of its a court of was equity as., pleading character a addressed to the side necessary was court under the statute. It not go pleader further than to set out the fact that claim which the defendants on record the deed was a plaintiffs language folloAV then title adverse allegation The other 2535. of Section traversable ordinary required, necessary was .not actions facts Story’s Equity Murray, 85; Juris- 256 Mo. v. Hauser Bispham’s Equity (9 Ed.), (14 Ed.), 931; sec. prudence Murphy Hudson v. Barron, 49; 205 S. W. v. 31; sec. Company, Mo. 65; v. 423; Wright, Huff Land 204Mo. Company, Toler 656; v. Edwards, 186 Mo. Spore Land v-. refusing (2) The court did err 161. 249 Mo. App. Luney, Paper 7;
grant
v.
68 Mo.
Co.
trial.
newa
SUPREME
OF MISSOURI,
COURT
Byrd Vanderburgh,
App.
v.
Brit-
Parker v.
112;
168 Mo.
App.,
(3)
ton, 133 Mo.
if the facts recited
Even
support
the affidavit in
trial
of the motion
new
given
verity,- they
possibly have
absolute
could not
changed
absolutely precluded
the result. Larson was
acquiring
plaintiffs,
a title adverse
both
fiduciary relationship
virtue of the
in which he stood
towards his minor children and
also because
life tenant. Fountain
900;
v.
209 W.
Starbuck,
S.
Con-
App.
struction Co. v.
Whitnell,
42;
Mo.
v.
Hauser
Murray,
Frey,
RAGLAND, C. action to title. pleadings judgment, pertinent so questions appeal, involved oxithis are as follows: against
“Plaintiffs for their second cause of action defendants state that are the owners fee following and claim that title to the real estate in Jack- 21, son to-wit: New1, Lot Block South More- City, an addition land, to Kansas Missouri. placed state that- the “Plaintiffs defendants have record deed dated November 1905, and recorded indicating June claim title, some estate and to said adverse estate plaintiffs. and title plaintiffs pray try,
“Wherefore that the court as- certain-and determine in- rights, *4 plaintiffs the find defendants terest of herein, and judgment set deed, decree aside said and and its define adjudge rights, plain- title and interest of property according in and to said defendants tiffs and provided, cases in such made and to the statute and for expended.” behalf their costs this plain- “Defendants reads: The answer answer to deny every allega- of action each second cause tiffs’ petition contained. Wherefore, tion in said defendants they go day.” hence that without ask OCTOBERyTERM, count second “On the as follows: plaintiff’s to be the facts of finds the court follows: the owner
“That Anna Larson her lifetime Twenty-one New in fee Block One of-Lot of of City, an Kansas Jack Southmoreland, addition improvements together son Missouri, belonging; appurtenances said that thereon thereto day of 28th Anna Larson on or about died intestate January, husband, defendant survived her 1903, plaintiffs, Larson, children, to-wit, Eric four Lillie Larson Peterson, Larson Anna Sallie Larson and Agda Agda; intestate Larson; said Larson died February or while infant .and unmar 3, 1903, about plaintiff twenty- ried now ; that Sallie Larson age; years plaintiff now Anna Larson is four twenty plaintiff years age, Lillie Larson is and the years age; eighteen Eric Lar that the defendant now plaintiffs. father of is the son “ death of said Anna Larson, That at time of the mentioned had been sold in hereinabove city Kansas for failure November, general payment city of the annual said year having tax certificate been T. the month of November, Matthews in issued to A. provisions existing of the then under the City, Missouri, owner of charter city pay period annual taxes had a sold failure prop years sale in which to redeem from such said two erty mentioned, at times herein sale; said acting fiduciary had in a been Eric the capacity property, and in the of said in the care of taxes thereon. of said Anna Larson be- death
“That after expiration period above fore during the late defendant mentioned, acting’ early in his fall of while summer Winfrey, capacity fiduciary aforesaid, Caleb *5 124 SUPREME COURT OF MISSOURI,
, Peteráon. v. Larson. assignee of said tax on certificate, sum of $31.75 behalf of himself life tenant on behalf of his and charges children as remaindermen full taxes, in of all against property property and costs which said for said n hadbeen sold by city thereby 1901, and said property was and redeemed restored to the owners there- of; that thereafter to-wit,, 27, on November 1903, by city tax deed was executed and delivered by Winfrey, to Caleb which terms^ city City; said was of Kansas that said deed was filed for record in'the office County, recorder of deeds Missouri, of Jackson on De- page 8, 1903, cember 557 and recorded Book B at thereof; 5, that afterwards on November 1905, quit-claim acknowledged was executed, delivered Winfrey Caleb to the defendant wife Eric Lar- whereby Winfrey son, said wife remised, released quit-claimed said to the defendant Eric (cid:127)Larson; afterwards, wit, 4, 1914, June said for filed record in the office of the instrument re- corder, Jackson Missouri, deeds of and re- page Book B 1561 corded at thereof. “ August 26, That or about 1911, defendant Eric Margaret intermarried the defendant Billow Larson, have ever since remained husband wife. further
“The court finds the fact be that ever since the Anna death defendant Erie Lar- said possession has son, life, remained in as tenant described, hereinabove has the taxes there- enjoyed occupation on and has the use of said premises as such life tenant. adjudged
“Wherefore, it is considered, and decreed as follows: the court “That November deed, dated 27, 1903, and on said December 8, 1903, filed record B Book 802, quit-claim page 557, and said deed, dated November 5, filed record 1905, and June B 1914, Book page office the Recorder of Deeds Jack- *6 hereby de- son be the same are Missouri, plaintiffs prop- clared to be ori to said clouds the title of they erty hereby they cancelled are naught held for cloud removed. and the thereof “It by is further court that therefore decreed plaintiffs said in and in the defendant Eric as follows: Larson, by right courtesy
“A life estate virtue of his surviving husband is in the Anna Larson s,aid simple defendant Eric that the title Larson; fee ab- an solute to one-sixteenth undivided of said by Larson, Eric defendant virtue the Statutes of Descents and of this as the heir State, Distributions Adga subject said Larson, deceased, and father in himself. to said life estate ‘‘ prop- rest, That residue and remainder erty, subject the life es’tate the" above named de- plaintiffs simple is in the in fee Larson, fendant plaintiff In the Peterson, follows: Sallie plaintiff Anna five-sixteenths; Larson, undivided plaintiff five-sixteenths; and in the an undivided Lillie five-sixteenths, an undivided as heirs of their Larson, deceased.” Anna mother, judgment new trial and in arrest of
Motions for ap- overruled in due course. Defendants were filed peal.
Appellants reversal of the seek'a on two responsive grounds:. that it is First, to the issues by pleadings; second, that on account of a made principal giving defendants’ witness made mistake they testimony new trial. entitled^ adjudging quit I. After plaintiffs’ referred are clouds on deed therein claim proceeds as follows: “and title, the hereby naught are cancelled and held for be and By the cloud thereof removed.” just quoted clalise it awards affirmative JuUgmentand equitable petition reading relief. A of SUPREME COURT OF MISSOURI, necessary discloses that aver- it none of contains ments of a bill title; it the removal clond of a merely alleges plaintiffs in fee that the are the owners question and, claim that title to the land claim intendment, that the some defendants (Koehler 581), an action at law Mo. Rowland, plaintiffs. to that In words, adverse other state equi- purports any grounds and no where to set forth unnecessary table relief. It is to cite authorities to show granted that the relief must be within the issues made pleadings. prayer'that contained a the deeds be respondents set aside and this, assert, sufficient *7 under the granting equi statute authorize the of this table relief. Section 2535, Revised Statutes 1909, con among provision: “upon tains, others, this the trial of such pleadings cause, if the same be asked for in the party, may either any the court hear and determine rights, may all . . claims, interests, . and full award ’’ complete legal equitable, relief whether or But the provide complete special statute does a or scheme of procedure contrary procedure itself. within On the the respects provisions under it must conform in all to the [Sec. of the. code. Revised Statutes Huff v. 71.] provisions, Co., Land 157 Mo. 65, 70, Under those broadly given relief considered, is not “asked for in pleadings” attempt allege the where is no made to there it. in such facts as would authorize as this So far case concerned, however, the ob- jection judgment plead- the not conform that does to the ings and formal rather than technical one of sub- fully stance,- court Under was author- by and.adjudge ized to define its the title, parties severally .estate and to the controversy. doing In so it was real neces- any, sary what if interest, determine it to was con- veyed Eric defendant Larson means of the n adjudged, question. they found,, It so that deeds nothing, conveyances they that as in fact were 285 Mo.] Larson. adjudication
mere simulations. In face of this 'formally practical consequence is of no whether portion or not. cancelled If unauthorized re- stricken out, valid and effectual would main. dur
II. The Larson testified that defendant Eric ing he attended wife, life of first Anna -payment which taxes on her occupied oversight through he as a some home; that neglected city year general pay taxes for the year amounting that $2.18, November of and a certificate was sold knowledge purchase Matthews; that issued one he sent when not come to him until sale did time-keeper pay taxes; after and that the current negotiations of the certificate of the holder some early purchase fall late summer he to him later received and some time sum of $31.75 of 1903 the quit-claim him further testified that deed. He from merely paying he intended to the sum is so pay $31.75 expected property; he the taxes just before; and so it had to stand testimony so On this trial did stand. concerned it $31.75, defendant court found property had redeemed the tax .the existing provisions of the them *8 charter of the sale under City subsequently tax deed that the executed Kansas no title. grounds for a of the motion new trial the of One Larson made a defendant Eric mistake the was that knowledge testifying that a of sale of in being him property in taxes came fact nearly years it in learned two first of that he provided lapse time of the the charier after appellants argue redemption. this fact Prom Winfrey, assignee had with Larson transaction purchase purchase, constituted certificate of of property Larson and not a of of. the MISSOURI, OP SUPREME COURT v. Larson. does not this conclusion But it from the tax sale. Larson assumed During his wife of -follow. the lifetime property. paying her the taxes the burden of occupied -jointly it he in that He had an interest thought gave evidently no her She with as a home. accrued, taxes as or attention to the duty implicitly discharging he had his but relied .special By voluntarily this reason undertaken. reposed bound Larson was him, confidence so regard in wife’s good to his and with due act in faith when in 1905 he been alive had she and, terests, delinquent penal Winfrey tax with the amount pur in return a deed received interest and ties and premises, convey porting him the the trans good equity conscience held action would edemption merely a r to have been p. 637, L. But 27.] C. sec. [17 R. sale. the tax part early 1903 with she died outstanding. in title her- as her successors
She left They Larson’s were children; also minor children. guardian had no other. natural he was their helpless dependent upon entirely They-, him. management care liad had the He prior after death; her death mother’s he to their charge it. these Under continued In circumstances to his minor children, Larson sustained relation fiduciary respect property, was as much a previously existed between that had him one as during He not, her lifetime. could wife there and his acquire existed, while relation fore, to that children. hostile of'his And he contrary, attempt according so. On the to do did not paid Winfrey testimony, $31.75 his own any discharge without tax lien intention 'of acquiring himself. the title occupied children, Eric
With reference to position trust. As life tenant it was another duty preserve them as the estate remaindermen.
, upon may incumbent him as not have been While property from a tax sale had life tenant redeem yet, if he did commencement before the for the benefit of the it is clear that it would-be redeem, as that of the entire estate—the remainder as well life (if payment was not made In this case tenant. lapsed, 1905) had but it until the time for the tax title waived the the holder is evident reconveyed upon pay question, the title time and penalties interest. tax, the life ment tenant regardless transaction, Under such circumstances redemption, aas should be treated took, of the form it tenant. purchase, the life and not [Fountain Peak, Peak v. Starbuck, 209 S. W. 536.] 228 Mo. that he Eric Larson testified that had
It follows instead of 1903 in 1905 first learned of finding court so of the trial parties concerned would is interests the ultimate right. still be expressed in a the views
In accordance with previous striking paragraph modified paragraph thereof words, the first out at the close of hereby are cancelled and “and that be and naught removed.” the cloud thereof As held for CC., concur. Small, Brown so modified it is affirmed. opinion foregoing Rag- PER CURIAM:—The adopted opinion All court. land, c., sitting. except J., not judges Woodson, concur, Mo—9