*1 relation of Collector Charles G. Ross, Missouri State Drainage County, of Revenue of Pemiscot the Use of Dis Daisy trict No. Pemiscot D. County, Clinton Wife, A. His M. Defend Gillam Neddie Gillam, Roy ants, Respondents, C. Coleman et Harper, Mrs. Appellant. One, April 23, 1936. Mayes Von appellant. respondents.
R. L. Ward and Everett Beeves for BRADLEY, C. This is an order of the Circuit County setting Court of Pemiscot a special sale under a execu- upon drainage a May tion based district taxes. petition against the collector filed in circuit court defendant delinquent drainage recover Drainage owners to taxes due District Judgment No. on certain lands. obtained November November 1933, execution was issued. The concerned were upon, duly levied advertised and sold under execution, Roy December 20, 1933. Appellant, W. Harper, was bidder at sale. Thereafter January 13, and on term of court at which had, sale was Mrs. M. C. al., respondents Coleman and landowners district, filed their set aside the sale. respondents similarly the. are landown- district; ers that their lands in said district are assessed use and benefit that bonds are out- standing and in purchasers; special hands of assessments the lands of
have been for the defendants, the execution upon the lands of well as are that some raising pay funds *2 sim- that said owners of bonds of said payment of in the ilarly are alike interested district, all the lands made from collection is and that unless bonds, and that the required pay the will be to extra assessments and disproportionately will fall extra assessments the dis- holding bonds of similarly situated, and that those others collecting their bonds. jeopardized trict will be that advertised that the sheriff in the motion It is further stated be- day sale on the the land at the courthouse would be sold p. bid- the auction to public m. a.-m. and five tween nine failed to attorney day the der; the of sale that on fraudu- collusion, conspiracy and it, represent entered into a but and effect, purpose the defendants and to agreement with lent in their permitted be to bid said they should intent that including accrued, costs name, otherwise, for the amount of own against any them, then person bid attorney’s fee, that if and date and withdrawn; within the hours and on the be that sale would that sell and proceeded the sheriff to place attorney bid, any a bid or offered to person when sher- that request withdrawn and district would that sale be sell other immediately proceeded iff withdrew the sale to and lands concerned advertisement; that the sale under another attorney the reason that was fraudulent and void for high- be sold to the and the sheriff refused to let said land day said the sheriff bidder; of all sales on est that at the conclusion “he the bidders if that was all the and advised was asked sales that attending crowd all,” that and that “the bidders and that was further dispersed.” sale set aside sale to carry fraud- day, in order to out said that thereafter and on the same attorney, ulent “in this conspiracy, the said defendants left appeared and lands” “after the bidders had and without other again and them,” notice that “offered the land and including attorney’s sold costs, the same for the amount of the fee.” January day,
On the same that the motion to set aside filed, appellant aside was filed a motion to strike motion to set (respond- the sale said landowners and bondholders “for reason here) parties ents have no interest in said land not and are cause,” and because “said motion not made on behalf of the own- any parties ers of said land sold district or day was filed. After cause.” The motion to overruled on day, the motion to on the same strike was overruled the motion and. heard, motion evidence and the up, was taken aside the sale .to set and January 27th, advisement. taken under the sale was set aside during set was term, the motion to sustained the same setting the sale aside. judgment entered by respondents, that abstract filed appears from additional for a day aside, was filed motion on, the
appellant same filed overruled, appellant the motion was new trial February exceptions. On no bill of appeal granted was
term, appeal filed affidavit for appellant to this court. dis- taken with the A motion was. grounds exceptions was (1)
miss the that bill of no filed; (2) appellant but that he acted appel- “as shown the affidavit of the the owner lant,” affidavit was the motion attached to to dismiss the here; (3) peal filed the abstract of is erroneous *3 alleged particulars. attached appellant, in certain The affidavit of appeal, as an exhibit to the motion dismiss effect is to the buying that in he acted as the of the own- by paid er appellant, owner the bid made but that got pellant Appellant no deed the sheriff. here filed a motion strike motion to appeal, in which dismiss purchaser states that it is not true that he “was not the sale,” “acting at the tax but it is also stated the motion that he, attorney for as C. D. owner, bid said land in at said appellant’s sale in own name requested to make (appellant) although him deed direct to as such paid by bid was client, Martin; his O. D. (appellant) that he motion, by printed shown abstract the record of to strike motion of to set duly aside said sale and appealed judgment from the of the trial court this cause and does not de- sire appeal.” to dismiss his question The of our of this us. occurs to by
Such
is not raised
either party, but it
duty
is our
determine such
arises, although
when it
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.
party.
either
v. Jorganian,
1070 take or, say, must another; as some of the cases of in favor litigant give support it another.” title from one Co., Joseph Land v. St. given court cited: Hanna South rule as Paving Hezel, 652; 28 Barber Co. 10, Asphalt 126 S. W. Mo. 1, 43 781; Wade, 598, Mo. 232, 39 S. W. Heman v. 141 138 228, Mo. 516, Ry. 515, Co., K. & 148 Mo. l. c. 162; E. S. W. Edwards v. 906; 446, 149 50 W. 89; Patton, 449, 50 v. Van Mo. S. Force W. 158 192, Turney 59 Watson, 65; Sparks, 158 S. W. Davis v. Mo. 162 Co., 366, 73; Ry. 59 Miller v. & K. C. S. W. St. L. 365, Mo. S, Ry. N. C. Mo. 85; Co., 63 W. Porter K. C. & 175 433, Mo. 424, 102 992; Mo. 98, 99, 74 W. Stark v. 116 S. W. 1089; Magoon, Brannock v. Mo. W. 29; 120 S. W. Hopson, Hill v. Weston v. Fisher, Anderson, 174 S. Dillard in the Nettleton It is also held (318 775) pleadings that when the may be, record, the case it as “are consulted is for the ascertaining operative the direct effect —which directly to give must be take title from one and it to another.” arising
The trouble when title is involved not much a rule, application so facts. the rule to the down The rule Nettleton Bank case laid has been followed many cited in among the case instances, are: Gold Lum al., ber Co. et al. v. Baker (2d) 457; et Mackey Williams v. al., (2d) 831; Cantley, et Commissioner, Piggott al., (2d) 846; et 30,Mo. Wil (Mo.), (2d) 270; liams v. Maxwell 82 S. W. Tucker et al. v. Bur ford (2d) 144; 88 S. W. Bank of Forrest City Pettijohn,
The issue involved on the merits of the motion aside the validity was the and the trial court evi heard the dence such issue and determined that issue appel lant. Title was not the issue on the merits the motion. “It is enough that the when carried into will execution af fect the title to land. must be involved itself suit and be a matter about which there ais contest.” [Nettleton It in MeAnaw held Matthis, Call, Stinson that an setting from an order execution sale properly of land was Supreme to the Court. But these cases, the point, were overruled in State ex rel. Beed v. Elliott, Steinmons, Moore Lawson Hammond, 90 effect, cases, Bryant v. Bussell, 422, 30 S. W. 107, appellate jurisdiction, King Hayes overruled. McAnaw to the case and others and court referred observed directly involving in- all cases the title cases “were to or an
such itself,” jurisdiction but the considered terest King what McAnaw does is there about the case case ruling in not, opinion, in our reinstate the the McAnaw jurisdiction. appellate have clear we do not of the appeal seems present case, hence Spring- the cause should be transferred to the Ferguson Hyde, Appeals, field Court of and it so ordered. is CC., concur. foregoing
PER opinion by Bradley, adopt- C., CURIAM: The opinion All judges ed court. concur. Building a Corporation, Appellant, Company,
McCanles Mis- Corporation. souri State Life Insurance Company, (2d)W. April One, Conrad,
Henry L. E. and Hale Houts Durham for appellant.