196 Mo. 404 | Mo. | 1906
is an action brought by T. G. Stuart, a resident and citizen of the State of Kentucky, under section 650, Revised Statutes 1899, to ascertain and determine his title and interest and the interest and title of the defendants in certain real estate lying in the county of Crawford in the State of Missouri, to-wit: the northwest quarter and the northwest quarter of the northeast quarter of section twenty-seven, and the south half of the southwest quarter, and the southwest' quarter of the southeast quarter of section twenty-two, all being in township thirty-seven, north, of range four west, and containing in all three hundred and twenty acres.
The suit was returnable to the March term, 1902, of the circuit court of Crawford county. Plaintiff alleged that he was the owner in fee simple, and claimed title to the said lands; that he was informed, and believed, that the defendants made some claim of title, estate or interest in and to said premises adverse to the title and interestof the plaintiff. It was also alleged that the defendant had cut and removed from the premises a large amount of timber, which was standing and growing thereon, of the value of two hundred dollars. The defendants at the August term, 1902, filed a joint answer to the petition, wherein they denied plaintiff’s
On the trial it was stipulated in open court that on February 29,1891, Richard Newberry was the owner of the land in question, and that he conveyed it by proper deed of conveyance to the American Real Estate & Investment Company, a corporation, which deed was duly recorded in the recorder’s office of Crawford county, Missouri. The plaintiff then read in evidence a warranty deed dated January 23,1897, and filed for record March 3, 1902, and recorded in deed record book number 19, page 377, from “The American Real Estate & Investment Company” to James Halley, of Stoner, in the State of Kentucky. Plaintiff then offered in evidence a general warranty deed, of date August 20, 1900, and filed for record March 3, 1902, and duly recorded, from James Halley, a single man, to T. G-. Stuart, of the city of Clark in the State of Kentucky. This was the plaintiff’s case in chief.
Thereupon the defendants offered in evidence the original petition and taxbill marked “Exhibit A,” filed January 12,1901, in the suit in which J. F. Hethcock as collector was plaintiff and the “American Real Estate
‘£ Served this writ in the city of St. Louis, Missouri, on the within named defendant, The American Real Estate & Investment Company, a corporation, this 24th day of January, 1901, by delivering a copy of the writ and petition as furnished by the clerk to D. A. Dyer, its president.
“ Joseph F. Diokman, Sheriff,
“by Thos. B. Kilcttllen, Deputy.”
Defendants then introduced in evidence the judgment rendered at the February term, 1901, on the 16th day of May, 1901, upon the said tax petition, to which plaintiff objected, because the service was not sufficient for final judgment at that term. Said judgment was for $30.43 and for costs, and the collector’s commission and attorney’s fees, all of which were adjudged a special
Thereupon the plaintiff in rebuttal called J. D. McCormick, who was swrorn, and testified that he had lived at Cuba, Missouri, for six years; that he had known plaintiff for about two and a half years, but had corresponded with him previous to meeting him personally; that he knew H. M. Ramsey and W. E. Evans; that he did not learn of the sale of the lands in suit until January or February, 1902, he first learned of it from Mr. Ramsey, who told him of it in the bank of Cuba. He testified that the plaintiff wrote to him some eight or ten months prior to the sale of this land, for a statement of its taxes, and the witness wrote to Mr. Hethcock for statement of its taxes, prior to August, 1901, and the bill was about $50, and “I sent it to Mr. Stuart, the plaintiff, and he wrote back to see if I could not get the bill cut, and I wrote the plaintiff that it would cost more to get a reduction than the reduction would be worth.” ■ He was then asked, if prior to that time, he had had a conversation with Mr. Ramsey, one of the defendants, about this land, and he answered,” I was
H. M. Eamsey testified that be knew Mr. John E. McCormick. Asked if be knew, prior to the time of filing suit in January, 1901, for taxes, that Mr. Stuart was the owner of tbe lands, be stated: “I do not know when it was, Mr. McCormick came to me and said that Mr. Stuart bad authorized bim to go out there and look at tbe land, and be bad never paid bim, and I did not know that tbe land was up for sale, until I came over to court and happened to buy it.” Q. “Prior to tbe date you purchased tbe land, you knew Mr. Stuart was tbe owner of tbe land1?” Ans. “I knew that he claimed to own tbe land, but Mr. Evans told me there was no deed on record. I did not know wbo paid tbe one dol
William Evans testified that he knew about the filing of this tax suit against the American Real Estate & Investment Co., and that Mr. Slack and himself advanced the money; that is, he himself advanced the money on all the suits that were filed, to pay for the service. At that time the witness was a deputy clerk for the court, was working in the clerk’s office. Mr. Slack was the printer, and was interested in the fees. His purpose in advancing the money to make thé service was to secure his fees as clerk. There was no order of publication in this case.
The plaintiff in his own behalf testified that he resided in Kentucky and purchased this land from Mr. Halley. He was asked if he knew Mr. T. B. Dyer, and he answered that he had in his lifetime and was acquainted with the officers of the American Real Estate & Investment Co. He was then asked if he knew who was the president of said Real Estate Company on the 24th of January, 1901, to which the defendants objected, and the court sustained the objection. He testified that he never heard of such a man as D. A. Dyer, that there was no such a man a member of the company. He first learned of the sale of this land sometime after the sale; he knew nothing about the sale; he wrote to Mr. McCormick to make a draft on him; he first tried to settle the difference in the- amount; thought the amount was excessive, and wrote to McCormick about making the draft, and that they could settle the difference afterwards; that was prior to the August term of the court, 1901. This testimony was objected to by the
J. F. Hetheock testified that he was collector of the revenue of Crawford county for two years prior to the 4th of March, 1901; that he did not have in his possession the letters received from non-resident landowners, they had been destroyed; that he did not remember that he had ever received a letter from a man by the name of Stuart between the first of January, 1901, and the 4th of March, 1901; he did not remember receiving a letter from the plaintiff Stuart, he did not charge his memory with such things as that; that it was his usual practice if a non-resident wrote to him for a statement of the taxes to send him the statement; he did remember that he had had a correspondence with Mr. John L. McCormick as agent for Mr. Stuart as to the taxes on this land.
Plaintiff testified further that he wrote to the collector and not having received any reply, he wrote to McCormick and asked him why the draft was not drawn, and asked him to see about it at once, and received a reply that he had been told by Mr. Eamsey that the land had been sold for taxes.
This was substantially all the testimony.
As already said, the purpose of this suit is to determine the title of the lands described in the petition as between the plaintiff and the defendants. Under the admissions as to the ownership of the lands by Eichard Newberry, the common source of title, and the deeds from Newberry to the American Eeal Estate & Investment Company, and the deed from that company to James Halley, and the deed from said Halley to plaintiff, the title of these lands prior to their sale and conveyance by the sheriff to defendants for taxes, was shown to be in the plaintiff. And the sole question presented for our consideration is whether under the evidence developed in this case, the defendants acquired
Section 9303, Revised Statutes 1899, provides: “All actions commenced under the provisions of this chapter shall be prosecuted in the name of the State of Missouri, at the relation and to the use of the collector, and agcdnst the owner of the property.”
In Vance v. Corrigan, 78 Mo. 94, it was ruled that where the statute under which the special taxbill was issued required the suit for its enforcement to be brought against the owner of the land to be charged, in the absence of any knowledge or notice to the contrary, the holder of the bill had the right to assume that the person in whom the records showed the title to be vested, was the true owner, and to sue him accordingly, and a sale under execution upon a judgment against the record owner passed the title as against the grantee in an unrecorded deed from him, provided, the purchaser had no notice of the unrecorded deed, and this is the contention of the learned counsel for the defendants in this case. They insist that inasmuch as the deed from the American Real Estate & Investment Company to Halley, dated January 23, 1897, and the deed from James Halley to plaintiff, dated August 20, 1900, were not filed for record until March 3, 1902, the collector of revenue properly brought suit to enforce the tax lien for the years 1897, 1898 and 1899, against the American Real Estate & Investment Company, the record owner of the lands at the time the suit was commenced on Janury 12,1901, and that, therefore, they obtained plaintiff’s title to said lands, notwithstanding he was not made a party to said suit for said taxes, and was not notified of the commencement of said action. Under the decisions of this court beginning with Yance v. Corrigan, supra, and numerous cases following that decision, to-wit: State ex rel. Hunt v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169; Payne v. Lott, 90 Mo. 676;
But these cases do not mean that actual notice of one’s title may not be imparted otherwise than by actual possession of the land. Actual notice within the meaning of our law is used in contradistinction to the constructive notice imparted by the record of a conveyance. It does not mean direct evidence that the subsequent purchaser actually knew of the existence of the deed. Any proper evidence tending to show it, facts and circumstances coming to his knowledge that would put a man of ordinary, circumspection upon inquiry, will suffice, [Maupin v. Emmons, 47 Mo. 304.] As
In our opinion the judgment of the circuit court upon the undisputed facts appearing in evidence should have been for the plaintiff, divesting whatever title, if any, the defendants acquired under and by virtue of. their sheriff’s deed, and also any title that the Sligo Furnace Company may have acquired in and. to said lands.
The judgment of the circuit court is reversed and the cause remanded to that court with directions to en