*1
W.
40. It is
51 S.
2d
nоt
Highway
Huff;
330 Mo.
Commission
for
contemplated
public use
private property
shall be taken
II,
just compensation.
without
Article
Constitution
Section
by law for the contribution
Moreover, provision
Missouri.
is made
state,
by
funds,
purposes,
civil
available for road
subdivisions
highways, includ-
acquire rights way
state
for the construction of
way
acquired
ing
highways,
rights of
are
supplementary
whether such
1939, Mo.
purchase
by
R. S.
or
condemnation. Sections
Harrison
Reilly
Sugar
Tp.
Creek
8780. See
secs.
Co.,
345 Mo.
It is so orderеd. C., PER CURIAM: Osdol, Van foregoing opinion judges concur. All-the adopted opinion the court. Elijah Guy W. Rudd, Appellant, v. 38640. 175 Scott. No.
(2d) 774. One, December Division Benning appellant. Davis and D. Wilkins for F.
May respondent. & May for *3 Mo. under R.
BRADLEY, C. Action Sec. half determine title to south of lot block See. to the County. city Louisiana, the of Pike S. Allen’s 5th Addition to M. appealed. defendant, plaintiff in and judgment vested title The question real in the lot. Hеreinafter, property refer to the as we alleged lot, owner of that simple that he was fee the and Plaintiff the prayer was interest to him. The defendant some adverse claimed parties” and “the exact title interest determine that the court plaintiff simple “the fee lot, adjudge to that owner” in and was therein, interest” and thereof, had no “title or and'that dеfendant asserting enjoined restrained” from forever and that defendant “be in lot. claiming any interest or said alleges: defendant owner of in “That is the title fee
The answer plaintiff’s petitiоn; in real described and that simple to the estate avers in and right, estate; title or interest to said real plaintiff no and has 6, 1939, purchased that November defendant real said further avеrs on orderly had, Bibb, from D. B. by proceedings and Collector due estate County, Missouri, in for Pike and received a deed Revenue and duly by B. and executed and delivered the said D. in form law due conveying collector, aforesaid, premises; defendant as to said Bibb, by public at auction thereof were sold the said premises that said day November, aforesaid, on said 6th Bibb, collector, as D. B. in and Missouri, statutes of cases made to the such 1939, pursuant duly therewith, delinquent for the taxes in accordance provided, and against same, pur- and defendant beсame the and levied assessed premises; chaser as plaintiff stated herein and the owner said ’’ right, has no title or interest in o'r said real to estate. adjudge Defendant asked the сourt to and defendant decree estate, was “the true and lawful real owner of said and that plaintiff therein, no right, plaintiff title interest be has or and enjoined interfering and restrained frоm with defendant’s title and with his in tenants the collection of the rents thereon.” generally reply answer, the new matter denied in except that it admitted that whatever interest defendant in clаimed the lot “pretended was derived from sale” for the taxes mentioned answer, alleged in reply tax and sale and the tax deed conveyed under which void, title, defendant claimed were and no and cancelling asked that a removing herein “decree entered said upon deed cloud as title.” alleged: further compliance “That heretofore аnd in
with the in such provided, (plaintiff) statutes eases made and he of- moneys fered to defendant, paid by refund to the all the defendant pursuant together purported pretended salе, to said with interest thereon at per per the rate of ten cent annum from the date of such payment; . plaintiff again . . compliance in with the provided statute in such cases mаde and now offers to to the de- herein, paid by fendant all amounts him with interest thereon at the rate of ten per payment judg- cent from date of such date try ment herein ascertаin, the court its decree and deter- mine amount which such said is here tendered amount into court ’’ required law. warranty deed, acknowledged
Plaintiff introduced executed and May 6, on from Mallory, conveying James L. and Robert lot question for a $150. consideration of This deed *4 July 12, Also, plaintiff quitclaim deed, recorded 1937. a introduced acknowledged April 11, Page executed and on 1938, from Robert to, conveying they wife, whatever had in plaintiff. claim the lot This July 22, quitclaim deed was recorded 1938. The deed a con- recites $1.00, plaintiff paid Pages sideration but of thе for $175 the deed. 1939, 6, Jones-Munger land was sold November under law, The the 1939, seq., A., 11108 et Mo. R. seq., Secs. S. S. Secs. 11108 for et years delinquent taxes for 1932-1936. the There was no bid at the previous taxes, offerings. The- total two interests costs for the delinquent years $33.01; was defendant’s bid at $12.50; the sale was only value monthly $12.00, the rental was .50 cents'less than defend- years bid. assessed delinquent ant’s value for the $150, was exсept 1932, assessed value $130. when the was Plaintiff im- made provements $300, on lot of the the value of and the reasonable market 1939, sale, 6, November $600. value on date of was Plaintiff paid the year year for 1938, taxes on lot the the sale, the before the the and for year 1940, year following sale, the the and commenced this cause 19, February 1941. 6, November Defendant deed executed introduced the collector’s the collector’s corrected deed ^.executed 1939, and what is termed commenced. 9, October after this cause was 1941, n defеnse, by de- only made defense, and about principal the is favor, suit his is the judgment fendant in in support the court in the equity situation, at in such law and not one one that the Plaintiff not set tax concedes could aside defendant’s deeds. the law, petition at but contends cause stated in the was one was in equity. The cause answer and cause to one converted the November 1942, advisement until January tried and taken under 20, according in to statement 23, decided, court, trial 1942, and when the in their in at variance plaintiff’s case are brief, said: “Counsel law, a at is whether it is equity (cid:127)conviction an suit or suit whether-it compared with the relatively claiming small bid reason of itself, and, a face it fraud on its property value of made $600, neighborhood claiming was in the property worth equity and not only in proceeding sold for If it should be $12.50. ’’ law, at such a contention would be sustained. as on the may properly If be one cause considerеd setting court, judgment aside collector’s equity of the so that side then deeds pleadings, scope would be within deeds for $12.50, consideration bid of should set because the aside and of grossly inadequate the conscience deeds, as to shock so al., Realty v. Benson See Co. et itself renders the sale void. Bussen 819; Tucker 813, l. Mahurin et v. (2d) 349 Mo. 159 W. c. al. S. (Mo. 423; Inv. Co. Roorbach Sup.), (2d)W. J. C. Nichols 161 S. 274; McFarling al. v. et (2d) Kennen et (Mo. Sup.), et al. W. S. 684; Heagerty Hawkins (2d) 681, l. c. al., 350 Mo. 165 S. W. (Mo. (2d) 923, l. Sup.), 173 W. c. S. required Mo. R. S. Sec. 11179, R.
Sec. in offer, petition, plaintiff, precedent, as a condition to his to Heagerty, taxes, Hawkins v. 348 Mo. etc., paid all defendant. but 156 W. without (2d) objection 642. Plaintiff did not [776] that such evidence was make such offer not within the petition, that when out’’ testified he “found scope petition, shortly thereafter, went sale, which he to defendant about the was Also, plaintiff refused. testi refund, and that defendant offered to the lot market value of on November -fied that the rеasonable objected Defendant as sale, was the evidence $600. date of immaterial, ground that such oh the evidence value of the lot object ground such evidence wаs not within did not on the but And, appears, supra, defendant intro scope pleadings. *5 deed, original deed and corrected which collector’s duced the bid, paid is, the consideration for the that showed defendant’s deeds situation, petition should considered as amended lot. In the 1211 Ilgenfritz proof. Light conform to Co., v. Missouri Power & 340 (2d) Mo. 101 648, 723, 726, S. W. l. and c. cases there cited. See also, Lynch (Mo. Sup.), (2d) 273, et al. 117 c. Baldwin S. W. l. 274; Benjamin Co., (2d) Philibert v. 342 119 W. 1239, Ansehl Mo. S. 797, l. 799; City Co., c. Robinson v. Kansas Public 345 Service (2d) 540, 554; Mo. 764, al., S. W. l. c. Jenkins v. Kurn et 942, (2d) 668, 672; Mo. 156 S. W. l. Gilliland v. al. c. Bondurant et (Mo. App.), (2d) 559, 51 W. l. cases there cited. S. c. pertinent contention of defendant cause
Also, that the court, cannot one on equity be considered as side of the is say answer reply, might and the contends. And here we that there a reply departure was no claim and there was pleads no motion to It will be strike. noted the answer refund, alleges collector’s deed. The also offers to illegal, tax deed “is R. invalid, void.” Sec. among things, R. A., provides plaintiff, Mo. a Sec., other allege “any reply, may in the not new matter with the inconsistent n petition, constituting1 a net? matter in ansiver.” defense .to allegations it Hence, appear would reply, except answer, view the are offer to which the proper, requires statute made in petition; to be judgment should be reversеd and remanded with the cause setting
directions to decree aside enter tax deeds defendant’s vesting plaintiff, upon title in conditioned refund to defendant of the taxes interest and the in connection therewith as the costs provided in Sec. R. S. R. S. Sec. 11179 [Heagerty Mo. (Mo. Sup.), 173 (2d) 923, S. W. It is cited, Hawkins supra]. CC., ordered. and Van Osdol, so Dalton concur. PER foregoing opinion C., CURIAM: The adopted Bradley, opinion court. judges as the All the concur. Malloy Malloy, Appellants, and Anna M. C. v. Dr. H.C. Jones. (2d) No. 38686. 175 S. W. 776. One,
Division December