*1 L. A. Alvin T. Earls, Richards S. Francis Steele Walter A. Appellants. and Jesse
Edwards, Sittner, J. Sittner (2d) W. 381. One,
Division November *2 Baynes appellants. R. F. and R. P. Smith for *3 Oliver,
B. B. III Biley respondents. and H. C.
(N to CO Spitler Merrill and Ward Beeves amici curiae. & *4 F. Sharp
Edward amici G. M. Buck curiae. *5 quiet and determine title to certain DALTON, real C. Action county. petition in form Tbe usual under Madrid New estate (Mo. Ann., 1520, p. Stat. sec. Statutes Revised Section plaintiffs simple tbe owners in alleged that were fee 1682). It described; possession defendants were in and claimed some that lands plain- and therein, prejudicial adverse right, title and interest judgment possession; for title and that de- prayed Plaintiffs tiffs. setting up from enjoined estopped be and hereafter fendants prayer a for petition The closed with claim, right, title or interest. by they answer that were in general Defendants admitted relief. title, plaintiffs denied claimed that were possession and possession. The answer than averred that de- or entitled to owners simple T. Earls was the owner fee lands fendant Alvin attempted an described; alleged plaintiffs purchase had at that taxes; drainage and then stated judgment under a for execution sale all hereby plaintiffs offer and tender to sums defendants that “these they pretended at by under whom claim such plaintiffs or those hereby equity the court offer to these defendants do tax sale and court decree title may prayed then herein direct.” Defendants waived, A the cause tried to the court jury defendants. to plaintiffs. adjudging possession a entered title Mo- decree appealed. tion for trial overruled and defendants new Iiimmelberger-Harrison The to the facts. dispute There is little to as the In- (hereinafter referred Company and Investment Land claim Plaintiffs is the common source title. Company) vestment 15, 1927, Company Investment (1) August title as follows: On (2) conveyed warranty Ault. On the same deed to Samuel J. trustee a of trust to Edward J. Bauerle as date Ault executed deed pay- secured the Company. for This deed trust the Investment warranty years a after date. ment of note for due ten $5330 Sep- trust 28, 1927, and deed of September was recorded deed New Madrid May 22, 1933, the (3) On sheriff tember County R. The basis executed a tax deed to P. Smith. taxes judgment establishing
this a the lien deed was Little against question favor of the the lands in and rendered in Bauerle, against Ault, Edward J. River District Samuel J. drainage taxes trustee, delinquent Company and the Investment for tax suit were 1930. The defendants and at the time of record owners at the the suit was instituted time duly process; with All of served sale. said defendants were Bauerle, trustee publication, Edward J. defendant Samuel J. Ault upon personal service, service and the Investment objection raised to the secretary, its one Clarence Hutson. No (4) it based. judgment proceeding upon form of the which was sale, the tax January 21, Smith, purchaser On P. .the R. Drain- River quitclaim executed deed to the Little his wife *6 deed, «age Smith, District. This the to tax deed were for filed 3, (5) May 22, 1936, record 1935. December On the Little River Drainage quitclaim District executed a plaintiffs deed to L. A. Rich- ards and Francis A. Steele. was 2, This deed recorded June every Bach and form, one of in due regular said deeds is on its face, duly question, described the lands in was recorded in the County, land records of New Madrid Missouri. 16, claim as September
Defendants’ arises follows: On the note, by said $5330 Ault secured deed of trust the as hereinbefore to, by referred was Company endorsed delivered the Investment ITimmelberger-Harrison to the Company (hereinafter Lumber re- to Company). ferred as Lumber The Lumber Company retained ownership until March 1936. On March and before the maturity note, of the Company the Lumber note transferred the said to Edwards, defendant Edwards. acted for himself and defendant They Earls. “jointly were thereafter interested.” Edwards caused of securing foreclosed, the deed trust the said note to be and on September 12, 1936, Harris, sheriff, trustee, S. J. as substitute under trust, the said Ault deed of executed and delivered a substitute trustee’s deed to said lands to defendant Alvin T. deed Earls. This September was recorded 12, 1936. appearing
Other facts in evidence are as At time follows: process in delinquent drainage upon said suit for taxes was served secretary Hutson, Mr. as Company, Mr. Investment Hutson secretary Company. also Company of Lumber The Lumber by assignment was then the owner and of note holder said from Company. prior thereto, Investment On December charged Lumber had profit said note off to and loss. Company, Lumber knowledge after of the institution on Oc- tober of drainage taxes, suit delinquent said for decided protect to the said land. drainage
The said tax prosecuted judg- suit was instituted and to attorney ment R. P. Smith as tax for the Little River (hereinafter District district). referred to At the un- sale drainage judgment der purchased said tax he said for real estate secretary the personal direction of the however, the district. The au- records showed no given by thority supervisors the board of or action taken them purchase, with regular practice reference said but it attorney taxes, tax all to bid in lands for where were there deed, no sheriff, other bids. The tax executed directly price paid Smith. The for 160 acres of land $25 this at the tax sale was or out in 1933. not unusual of line for sales acres, evidence, Except 20-12 “it was ivild There was land.” however, per should have been worth around or $4 $5 land very productive. pay acre and was Mr. Smith did not the considera- for the district. held title tbe district Smith It was tion. against the record owners instituted tax suit was At the time the attorney had no knowl- and its tax land, and its officers the district question the note in concerning edge information the transfer *7 assignment note the of this Company. No record of the Lumber land records. appeared the for the paid Company $100 $5330 the Lumber
Defendant Edwards total time note showed note on March 1936. that the Ault At during Be- $39.48, being paid on interest credits of amounts entirely familiar with note, he was the Ault purchased fore Edwards land, to this with reference appearing all transactions of record had communicated including proceedings. previously tax He the said been advised secretary drainage and had with the district After the note claimed own this land. that the foreclosing was incurred purchased expense $26.36 an additional knew that plaintiffs the deed There evidence that the of trust. be- the Lumber the Ault from purchased Earls had note drainage district. they from the fore obtained their deed attorney ceased to be 13, 1935, after R. P. Smith November and On District, after the execution of for the River Little district, recorded, the said his deed to the but before it for de- attorney, a second suit by III, R. B. tax instituted Oliver as 1934 1932 and land, and for the linquent taxes on this named as parties against the same taxes. suit was instituted The the record owners They appeared as defendants in first suit. still the note, Ault acquired the defendant Edwards the land. After the land. possession of to, went into as hereinbefore referred Earls delinquent taxes 16, 1936, March Earls off the On The was dismissed. by suit, and said suit covered this second Company, and the Lumber purchase of note from the the Ault subsequent, suit, was the payment of taxes covered second and of however, deed to Smith recording to the the said tax .Smith’s 3, 1935. being December drainage district, recorded deed both one in proceeding as refer to this Appellants in their brief cause on briefed this equity. amici curiae have also Certain (appellants) essentially theory one defendants that this action is grantees from redeem this real estate as inferior lien holders to lien, when superior a at a or foreclosure of purchasers tax sale pro to the foreclosure they (appellants’ assignors) parties were not thereby. they are not bound ceeding superior lien and that action is whether this to determine important It becomes therefore equity law or in is one at equity. or in Whether the action at law pleadings. according tendered determined to the issues must be (2d) 81, 84; Jacobs v. 275, 90 W. Moulder, 338 Mo. S. [Rains citing cases. Waldron, 1133, 1137, 298 W. S. Mo. A deter- (2d) Nebb, 1182, 1191, 30 W. Ebbs v. 325 Mo. S. 620.] legal equitable the cause of whether is is essential to mination (1) jury whether the cause was triable a before determine and, (2) to what method of review employed below must be court equitable cognizance, pleadings present issues of then the If here. equity. plaintiffs The"action is one at law since both is in cause purely legal rights, defendants seek establishment and the to-wit, judgment simple possession. for a fee title [Williams 842, citing Walker, (2d) 840, Becht v. S. W. cases. Johnson, (2d) petition 62 W. The states grounds equitable for affirmative relief. The answer states no no calling equitable prayer is no for affirma- for relief there facts pleadings The equitable tive relief. sole issue one legal right possession. simple law to the title in fee prayer injunction general plain- relief at the close of standing alone, to convert the case to one petition, tiffs’ is insufficient of action in equity, petition because the fails to state cause of action. equity. part The demand for relief is no of the cause *8 573, 581-582, Moulder, Rowland, 275 Mo. supra; v. Koehler v. [Rains 217, 218, 107; Waldron, supra; Peter- 205 W. 9 A. L. R. Jacobs v. 704, The answer Larson, son 285 225 S. W. v. Mo. 705.] in the equity. a in The mere statement does not state cause of action sale,” “pretended a and plaintiffs purchased answer that had may herein hereby equity the court that offer to “defendants do equity, in defense one direct,” not the cause of action or did make upon an equitable relief based no affirmative and constituted basis for equitable of an the answer equitable defense. Even the statement proceed- a would not convert support thereof defense evidence 160, Hine, 297 Mo. ing equity. v. at law into one [Turner 10, 20, 55 Curtis, 154 Mo. Ry. 935; 248 Electric Co. S. W. The record shows one at law. action was therefore S. W. The 222.] No the court. to jury and the cause submitted that a was waived in the errors given. Absent requested or declarations of law were evi- if based on substantial therefore, finding of the court trial, the dence conclusive on us. is (1) in evidence of assign error in the admission Appellants drain to the from Smith Smith, (2) the deed R. P. the tax deed of respondents to drainage district (3j deed of the age and the following objected to on the was below). The deed (plaintiffs first that were such tax suit in the (1) proceedings grounds: the (2) that trust; deed under the convey the interest it failed to that title district the was purchase at the tax sale for the P. Smith of R. the name falsely illegally was taken tax deed for the consideration (3) the district; that .benefit of the other The the court. shock the conscience negligible was as to so therein grantors theory the that objected on the to two deeds were power no had that conveyed no title and no title and had acquired acquire land; purposes that land was not buying selling entirely beyond that land district; and Drainage River District. powers of the Little properly instruments were admitted in evidence. Un-
The several they der made constituted evidence of pleadings the issues regular plaintiffs’ chain of title. Each deed on its face admissible, against the objections facie prima therefore 10765; appellants. (Mo. Ann., Stat. R. S. sec. [Sec. Ann., 1715, p. 3990); R. p. 3493); (Mo. S. 1929 Stat. sec. Sec. Beagles, (2d) Mo. W. Insurance Co. v. 62 S. Travelers’ complained by appellants appear from The matters did not They were affirmative defensive matters face of the instruments. The as- requiring independent proof. affirmative pleaded not signment overruled. is testimony as assign next error in the admission of
Appellants Company pendency knowledge of the Lumber as to the the actual The that first tax suit. record shows this information the first “Q. Hutson, Himmelberger-Har appeared Mr. was the as follows: Company Investment served summons in tax suit rison Land and J. Ault? No. entitled Little River District Sam Baynes objected to, That is the return is best evidence. : “Mr. ‘‘ however, That I will let him answer. The : is "true Court BayNes: Exception. “Mr. Himmelberger-ITarrison Company had sir; “A. Lumber Yes prop- had been on this knowledge of the fact a tax suit filed actual that secretary Himmelberger-IIar- erty my ; part is a duties as it the tax in which rison to make a record of sales Lumber company interested.” is given in
It
the answer
apparent
that
information
in-
merely
and was
additional
question objected
called for
*9
voluntarily
No
was made
given by
witness.
motion
formation
the
objection or
voluntary
the
No
strike
the
witness.
out
statement
as-
made. The
to the
of the witness as
exception was saved
answer
signment
Schofield,
1169, 8 W.
319 Mo.
S.
is overruled.
v.
[Cazzell
319,
Purcell,
312,
(2d)
Mo.
580, 589;
v.
131
State ex rel. Friedman
Appellants error admission conversation, private trans timony acts, and of witness Hutson as to concerning or aban Company, protection within the Lumber actions controversy. assignment abandoned donment of the lands in This by testimony The not out. appellants. particular pointed The grounds to show objection No effort was made specified. are not testimony. how prejudiced by admission of the appellant argu in The and or points matter is not authorities mentioned under assignment. support in ment, and no authorities are submitted 270 assignment
The is overruled. v. Jackson-Walker [Span & Min- Coal ing Co., 158, (2d) 190, 322 Mo. 16 S. W. 202.] assignments final (1) error are that court erred finding respondents land, were the (2) owners of in find ing appellants that were the owners of the land in question. assignments
Under appellants these of error urge their brief (1) invalidity estoppel, (2) deed, of the tax (3) that appellants’ fights by were not proceeding. the tax foreclosed Appellants respondents contend that are estopped the acts of validity district to assert the (1) of the tax title be- cause the subsequent to said tax sale sued the former own- for delinquent drainage alleged ers taxes and in said suit that said lands, former (2) owners still owned said because in reliance appellants bought on said suit the note from the Lumber paid the taxes covered the second suit. Estoppel not ah issue in this cause. The issues a lawsuit up by the pleadings. are Foskin, 887, v. 321 Mo. [Kleinlein 13 (2d) 648, 654; S. W. Dawson, Moore v. App. 791, 220 Mo. 58, 61; Myers S. W. Frank (Mo. v. App.), (2d) 54, 109 W. S. 57.] Estoppel anis affirmative defense to pleaded proven, be unless appear plaintiffs’ such facts from case. ex rel. School Dis [State Haid, trict 806, 328 Mo. (2d) 809; S. W. Ambruster v. Ambruster, (2d) Dairy 326 Mo. 28, 35, 38; S. W. Grafeman Bank, 849, 870, Co. v. 359, 363, 288 W. 368; Missouri Co., Cattle Loan (2d) 1, Co. Insurance 52 S. W. Appellants contend that evidence estoppel sufficient to create an objection. came without We think the evidence was insufficient that purpose. The evidence in this case discloses that at the time delinquent taxes covered the second tax paid suit were on March tax Smith, deed to quitclaim and the deed from Smith to the had been of record since December bought note, Edwards taxes, Before paid Earls Edwards secretary had contacted the district and had been advised that the district owned the real estate and would sell it. present Edwards was when Earls off the taxes covered this second tax suit. Edwards admitted that he did not know of the filing (filed the second tax 13, 1935) suit November at the time purchased the note March he on but he did know of tax and the apparent sale deeds thereunder. It is therefore that appel- rely lants did not on they the statements in the second suit when paid We opinion pleadings taxes. are of the are not suf- estoppel ficient to an raise issue of and the evidence fails to establish *10 necessary estoppel. Perry, 263, elements of v. 97 Mo. [Blodgett 891; 10 892; Dry S. W. Rosencranz v. Co., Swofford Bros. Goods 518, 445; Waugh Williams, 903, 175 Mo. 75 S. W. v. 342 Mo. 119
271 934, Mo. 119 W. Rhoads, v. 342 S. 226; Rhoads (2d) 223, W. S. 510; ex 504, Rep. 50 Am. State Adams, 80 Mo. 247, 252; Burke v. App.), (2d) Fidelity Casualty (Mo. S. W. & Co.
rel. Richards 123, 128.] tax sale under the urge next that the execution
Appellants ac and the was invalid district deed thereunder judgment and the gave the power which alone district quired no title because statute strictly buy complied con Appellants at tax was not with. to sales merely voidable, was void and tend conveyances deed the several no passed title. (Mo. Ann., 10766, 10766,
Section Revised Statutes Stat. sec. 3494) things p. among provides: protect other “To said lien of any drainage delinquent ... case said taxes where are lands . . . supervisors offered for sale the board of shall have author- ity bid, to bid or to not to cause be exceed the amount due whole thereon, aforesaid, the name of the and in such case bid, the shall highest convey bid is the sheriff sell and such lands to drainage . such district . .” 11020, (Mo. Ann.,
Section Revised Statutes 1929 11020, p. Stat. sec. 3659) among things “Drainage provides: other or levee districts any . incorporated . . under of the drainage levee this laws of are state where lands offered for sale for their own taxes or assess- thereon, hereby ments due buy shall be and are authorized to such If highest lands. such bid is the bid, ... the sheriff shall con- vey such such lands to district. . .” . (Mo.
Section Revised Statutes 1929 Ann., Stat. see. 3496) among things other p. provides: “In drain- order effect the age, protection and reclamation . . . supervisors the board of hold, acquire authorized control pur- ... donation or chase, be, any if need condemn land . . for pur- . poses herein provided, or for material to used. . . .” be provisions
All broadly terms and are act to. be liberally (Mo. Ann., construed. R. S. 1929 Stat. sec. [Sec. 10808, p. 3530); Sundermeyer, Walker 102, 103; W. re Drainage Rolwing, In District v. Appellants 190 S. W. passed contend that no title since, according
tax deed evidence, to their bought the district at the tax but deed sale R. P. Smith, made Smith. Mr. one of attorneys appellants, for and witness on their behalf testified: “I attorney bid in the land for the Little River Dis- trict, personal direction of B. Burns, Secretary F. of the Dis- trict. ... I asked Mr. Burns how he wanted the deed he my gave told me in I name. ... a check for all those bids my name. . . . The consideration was River the Little solely and I held However, it them.” the interest of in the not appear matter did on the records of the in the district or *11 right legal Prima had the to take title. At least
deeds. facie Smith grantee in legal capacity prima he had the facie to be a the deed. If at the of the and if the district purchased he for or direction consideration, equitable then the district was the own- furnished the conveyed by er, subsequently proper deed, and if to the district Smith merged equitable legal the title in the district. If the ultimately legal received title and purchased at the tax sale it the legal note, Ault appellants purchased had title before the the suit, the Ault the taxes under the second tax or forclosed testimony for express purpose deed of no as to trust. There was the might be inferred from the acquired, except which the lands as were testimony was, policy Mr. that it “the Dis- of Smith myself it the land wouldn’t trict that Mr. Burns and would see to that marked off go bids; if there were no bids the land was without other ’’ we that to me. As far the of suit are concerned think as issues this acquire conveyances in for the district to evidence were sufficient legal question respondents. to pass title to the lands in convey authority acquire real for certain district had to estate may collaterally right purposes appellants question of not Only in the state could district to take and transfer title this case. 632; Louis, 34, 43-45, 61 W. complain. St. [Hafner pleading Coffman, specific In the of Land v. absence unlawfully acquired the dis- proof that the real estate lawfully acquired pur- for lawful presume trict wé must that it was poses of district. finally failed to
Appellants contend that the first tax suit rights the Lumber the Lumber Com foreclose the of since pany, assignees Ault note the said and owners of the secured trust, proceeding; a in party deed of was not defendant said tax sale assignees note, pur and as appellants, subsequent and that not affected trust, of the deed of are chasers under foreclosure only by the transferred Appellants sale for taxes. insist that the sale rights in parties named as defendants the tax suit. a to However, party proceeding if a lien holder is not made a by the fore- superior foreclose a tax lien and not otherwise bound closing remedy redeem. proceeding, proceeding equity his pleadings. No such issue is raised We and that the answer have seen that this action is one at law rights appellants showing equitable appel- did not state facts right redemption Appellants equitable lants. did not claim an prayer no property, legal but title thereto. There was redemption equitable relief. No direct assault for affirmative by the upon any presented proceeding. deed or The sole issue The mo- pleadings legal title. party was as do which had the better allowing appellants alleges tion for a new trial error in not no deciding cause in favor redeem. It erred in this states court have been in respondents, ap when his decision should favor of assignments error are made here to-wit: That pellants. The same holding respondents are the the court erred in that owners of the holding appellants points that are the owners. land and Under argument appellants point out respondents and authorities and in that title, and contend that since at the time the tax hold under the *12 Company Lumber owned instituted the the note and “was suit was process a tax nor served with it party not to the suit makes Again, say: impossible appellants for them to be affected.” “The the actual owner the deed of tax was invalid because of trust suit hold, a appellants party now not made to that suit.” wa¡^ under which right a suggest appellants equity a claim of of as the This does not alleged property inferior lien to redeem under the holders of an sold superior proceedings of a lien and to which foreclosure of foreclosure grantors superior appellants parties. lien the and their were not wholly may suggests proceeding tax was void and Rather it Co., 656, 186 85 W. disregarded. v. Land Mo. S. .If [Spore be 556.] Company party not a it conceded that the Lumber was to be drainage lien, foreclosure of the tax or not other proceeding for the (which hold), still, not proceeding wise bound said we do since trust, legal superior the tax lien to the lien of the deed of and the say sold, one could not that the sale title of Ault was foreclosed rights assigns invalid and the of the Lumber and its right affected, in that case their would be one would not be because pur the inferior lien the redemption. In of foreclosure of case subject rights purchasers thereunder would hold to the chaser [City Springfield v. Rans superior under lien. foreclosure dell, 43, 771, 264 W. The cause was tried below 305 Mo. S. 773.] proposition appellants to whether presented upon is here sole question. legal or better title to the real estate in respondents have the may go pleadings and the and make find We not outside the evidence in the ings grant responsive relief not to issue case. [Rains citing Moulder, supra, cases.] therefore, respondents, Did who hold under question, is: sale, acquire legal appel a than purchaser better title By purchased at the foreclosure of the deed of trust ? Sec lants who (Mo. Ann., 10764, p. 10764, tion 1929 Stat. sec. Revised Statutes only lien, subject 3491), paramount a the lien of taxes is general State, county, and road taxes. the lien of the State for school superior not There the lien of taxes is no claim that prop proceed the District did not the lien of the deed of trust or that In and the erly against tax lien land as to Ault to foreclose its regular face. on its Company, proceeding vestment or that the 3493); Ann., 10765, Sec. 10765, (Mo. p. R. 1929 sec. S. Stat. [Sec. Ann., 9953, p. Appellants 9953, (Mo. R. 1929 Stat. sec. 7995).] S. lien, “against prosecuted an a tax contend that action to enforce against known, then known, and if not if property, owner county city at the by the records shown owner of record as the last assignees unknown of notes brought” not affect does time the suit was 10765, R. S. record. Sec. trust of secured deeds of [See (Mo. 3493, 9953, and Sec. R. S. Ann., p. sec. (Mo. Stat. Willman, Morgan v. 9953, p. 7995); Ann., sec. Stat. judg However, the under the (2d) 193, sale 168, 1 W. S. 200.] ques conveyed legal title the lands drainage taxes ment for Drain rights. River subject appellants’ respondents tion to [Little (2d) 7 W. Sheppard, 320 Mo. age District v. dealing Fizer,, court In of Stafford the case for the foreclosure proceeding under a rights purchaser of a with the “It under a deed of trust said: against purchaser of a tax lien as liens, dealing two one created are with will be observed that we necessarily precedence takes of other which law in favor of the State peculiar char subsequent liens, on account its well as prior, as creditors, created the act in favor of acter; . . the other . pur and the liens have been foreclosed debtor. These two proceedings each other with deeds under opposed to chasers stand *13 enforcing of the is them. lien State respectively employed . .” The court one, although subsequent in time. . the superior of the su under foreclosure purchaser then held that the at sale Kreid title law. also Gitchell v. superior lien had the perior [See Gray, 85 Mo. Myers Bassett, 479; 84 Mo. ler, 472; Cowell McCabe, 6 S. W. 169; Allen v. issues in this case whether sub- It therefore immaterial to is assignee” and owner of a is bound sequent and “unknown note named in the deed of judgment against payee a tax of the note note, subsequent to the transfer of the where suit is instituted trust right assignee presented. to redeem is no issue as to the since rec- legal Finding title. no error Repondents have the better Hyde Bradley, CG-, concur. judgment ord the is affirmed. foregoing by DaltoN, C., adopted opinion : The PER CURIAM judges of the court. All the concur. opinion as the George Robertson, at the relation of A. of Missouri State Superintendent Relator, State, Department Insurance (2d)W. 961. v. Nike G. Sevier. 132 S. Banc, en
Court November