*1 First Lufcy, Use of Nat. Bank v. supra, jurisdiction that of the bankruptcy conflicting of a court determine claims to a fund possession; which had and in case of Beekman Lumber Co., supra, question Co. v. Acme Harvester involved was whether proceeding bankruptcy right bars the prosecute an action court. attachment a state both these cases “authority” jurisdiction problem of a federal court was involved. should be transferred to Ap- cause the Kansas Court of
peals. Bradley and CC., is so ordered. Dalton,
It concur. foregoing opinion by PER CURIAM: —The Van Osdol, 0., opinion adopted judges of the court. All as'the concur. Berger, Appellant. Carlotta M. Wetmore v. Paul William No. 39386. 188 S. 949. W. July One, Division Bishop appellant. and Jesse E. Feigenbaum M. Leon *2 respondent. Moore for Douglas and T. Bader Edwin *3 BRADLEY, C. Action to determine title to lot in Uni- a County. Defendant, 23, versity City, January 1943, St. Louis on January answer, alleged plaintiff term, for amended claimed the and generally allegations in denied other lot some interest complained cross and Then defendant asked that title petition. September term, 4, At the and be in him. on October adjudged to parts of sustained, certain the crossbill motion to strike was a 1943, 23, 1944, at January term, a demurrer February on and crossbill remaining part of answer and was sustained. to the 12, on further, April 1944, during and plead did not Defendant duly by an order made court, and entered of January term, “the inquiry and in a default said cause/” On granted plaintiff record, May term, plaintiff briefly, testified introduced 1944, at May 31, adjudged her, fee was to be and deed, and title her collector’s right, title or had no interest adjudged lot. was said appealed. and he filed (appellant)
Defendant a which was taken with motion, plaintiff (respondent). case, additional to strike an abstract filed The motion to strike additional abstract overruled. Jones-Munger was law on November lot involved sold under 1938, for One Jack was
16, county state and taxes. Dean highest pur- a $3.20 'the on bid and received a certificate bidder assigned plaintiff. This certificate was re- chase. thereafter to No demption county his was made and the collector made deed collector’s August plaintiff day, this was filed to on and on same deed August 13, This suit filed for record. gather pleadings and
We from the the briefs that defendant’s claim title was in the of title was derived as follows: In lot to A favor Company, corporation. special Y. a bill in Realty D. W. University against lot suit had City had issued been brought against on this tax bill to enforce the lien thereof said been style was, rel. City University City “The ex lot. The suit ’’ Company. Company Realty Bank & Trust D. V. W. University Feigenbaum acquired special tax the suit there bill while Leon M. in the suit and he was as relator pending on was substituted $1879.34, The tax bill special tax bill. suit went judgment, was sold execution based lot under alleged sheriff on December on an bid to defendant $1,000. complains trial court (appellant) of the action Defendant part crossbill, strike sustaining motion to remaining sustaining part of answer demurrer to set aside default Defendant did not file motion crossbill. he new trial. such situation judgment nor did file a motion says complain that defendant “cannot be heard *4 ’’ error. Jones-Munger alleged: (1) That In defendant the crossbill process; (2) it denied due and void law because was unconstitutional because collec- upon plaintiff which relied void tax deed (cid:127)that the published copy tax of delinquent in the book to insert tor failed designated collector instead of notice; (3) it because sale all failed to advertise grantor; (4) the collector because State as the lot; Dean nor (5) because neither against delinquent taxes execution of lot at the time of the taxes due on the paid the plaintiff Yornbrock, member deed; Dean and one (6) because collector’s en- Realty Company, the D..Y. W. of the last board directors of of county out of taxes due conspiracy to defraud into a tered title; (7) his because at out of lot, defendant and defraud the reasonable by lot was of the collector’ the tax sale time of the in only $115.45 that only $3.20, and bid $1500, and Dean value of executed, and that “these deed paid when taxes were true to the inadequate proportion and out grossly amounts were so property good as court”; value this to shock the conscience of this (8) defendant held the that fee title to lot reason of sheriff’s (9) him 1941; deed to December and "defendant further states that because of facts that his title was from V. W. derived the D. Realty Company, corporation, years have many past who for lost right to do as charter; their business well as have their forfeited state said joined and that named board of directors last had not been as (in case) defendants the time of said decree tax bill therefore, join that, necessary October and will be suit, parties defendant, as additional persons this these three . Yornbrock, Walter Sr., Watkins, named: G. and Earl Everett Davis being County, all of them Louis are residents St. Missouri, who shown as last named board of directors said corporation, and therefore, now, by operation law, are operation the trustees for its and in order that liquidation, property his title to the aforesaid may be, by litigation, this completely quieted, suit and established fully.” determined following prayer: crossbill concluded with the "Wherefore foregoing, prays of all the this defendant that issue
because this court Vornbroek, Walter Sr., and order that the above named G. Everett joined Watkins, Davis and Earl be as in this action, defendants and Y. Realty as of the D. W. Company, corporation, trustees and the next term current of this court. prays
"The defendant further the court for a and decree (collector’s purported setting deed) aside said deed recorded page 304, office book of tbe of the recorder deeds of St. Louis County, Missouri, illegal; may as null and and void deed naught held; hereby this and tenders and offers to pay principal (Dean) reimburse or her and for the amount her, paid by purported plus or for deed, any all taxes said interest plus any $122.00, due them said other of municipal amounts paid by them, thereon, and interest as this other court taxes should said them; due and as soon amounts can find to be as be ascertained detail. and estimated this prays adjudge
"The defendant further this court decree suit, fully as parcel of real estate in hereinbefore is more described, Berger, in Paul well vested William free defendant, except state, taxes county of all liens clear year municipal district for the other due school taxes University City, Missouri, and for his costs ex- herein ’’ pended. the court sustaining the motion to strike struck from the cross- *5 allegations 9th as 1st, 3rd, 7th and we have numbered them. bill the complain action May of the of the court in defendant sustain strike, so, if it ? error to sustain the ing motion to motion pleading part or sustaining motion to strike a a thereof is An order
163 párt proper instances a some the record and will be reviewed Sternberg Levy, a appeal on without motion for a new trial. v. 159 1114; 617, Shohoney City 60 & Quincy, Mo. S. W. v. Omaha Kansas 649, sustaining c. 122 Co., 660, R. 223 Mo. l. S. W. 1025. If an order disposes a motion strike whole be case, to of the then such motion will equivalent demurrer, a is, part considered to that a of the record filing trial. proper, reviewable without a motion for a new Shohoney Quincy, 131, v. Omaha & 231 c. Co., R. Mo. l. Kansas 150, 132 1059; S. W. Light Co., Home v. Missouri & 377 Ins. Co. Power 1201, (2d) Mo. 39 1039. only part S. W. If a motion is directed to a pleading pleading and leaves to con unattacked sufficient of controversy parties equivalent stitute a between the then it not sustaining an demurrer and order not reviewed motion will appeal on absent a 1 on motion for new trial. Houts Missouri Pleading Practice, & 126, p. Sec. 255. stated,
As 1943 September, motion strike was sustained at the court, term of the and at term defendant filed a term bill that exceptions ruling to preserve the the court on the motion to strike. it appears Thus that that the motion to defendant did not consider part proper, agree, strike was a record and we hence in order sustaining preserved to have the action the court in review .for strike, the motion to for a new necessary it was to file a motion ’ (cid:127) preserve' point exceptions. trial and a bill of May sustaining complain action in court’s elementary It is demurrer? no motion for a new trial neces sustaining sary preserve judgment order to for revieiv an order or term, a general petition January demurrer to a crossbill. At 1944, judgment disposing final ivhen the demurrer was sustained no ap then have whole case was entered and defendant not could pealed judgment of all of the disposing because there was no final A., parties 1939, Mo. R. Sec. and issues Sec. R. S. S. involved. (2d) 447; W. 1184; Newberry Co., Stith J. 336 Mo. 79 S. W. J. 524; Chiles, (2d) Mo. S. W. A. Construction Co. v. 344 130 Ross (2d) 117 W. rule Murray, McFall v. Mo. S. 330. We and failure failure to file motion to aside default set preclude review of the court’s action file motion a new trial did not sustaining the demurrer. (respond Plaintiff sustain the demurrer? Was error to supra, and included ent) appears, filed as abstract, an additional court, explaining his prepared trial memorandum, therein is may memorandum, part record, ruling, although not a and this determining theory upon which purpose be considered County, 345 Mo. proceeded. trial v. Pettis Smith (Mo. 149 W. App.), S. (2d) 282; W. Weis v. Wanstrath S. ruling that the trial court’s would seem
From this memorandum it defendant, at the theory time of based the demurrer was *6 164 stranger by tax the collector was
the sale an entire to the title to the complain. involved, lot reason not In the could memoran- dum the said: 1938, property by
“The involved was November the col- 16, sold delinquent lector of because of the taxes, revenue and on the same Dean, a purchaser, purchase. date 'the He Jack received certificate of assigned purchase later M. Wetmore, this certificate of to Carlotta the 1941, years 22, in this case. On December than three more thereafter, property purpose satisfying the sheriff sold for the the in special purchaser special prop- a lien favor of the a tax bill. The erty purchased by special bill, the was not holder of the tax but was stranger bought by defendant, prop- who an entire to both the erty special 7, 1942, November bill. On the collector Wetmore, M. Jack Dean, execilted his deed to Carlotta to whom 16, 1938, assigned purchaser the collector’s sale November had at purchase. the certificate of is recognized principle
“It that fraud an individual and' is well upon thing. complaint person only It to the personal is cause purchase by it whom is committed. At the time of Jack'Dean from collector, stranger in cause was an entire to the the defendant stranger property. He had transaction, and an entire to no interest property. by It is property. in the He claimed no interest in 1941, he 22, his transaction on claims an reason of December property. interest in the ‘‘ (by The claims fraud occurred in sale .that collector) ($3.20). con- Jack small an amount If that to Dean for so defendant, against the fraud did not occur stituted a then the fraud stranger‘ property Berger, he to the or Paul William because was per- is an individual and transactions. Inasmuch as fraud complaint person upon whom only to the thing, sonal it a cause of quotes memorandum supporting theory, the it committed.” As such “Thus, fraud occurred S., p. where 60, 345, J. Sec. as follows: C. recovery no such can be original property there sale purchaser.” by donee, or subsequent grantee,’trustee fraud ease, by admitted apparent present in the quite It is from facts (all have of which we facts cases demurrer, and the quoted, support the text by Corpus Juris examined) cited Secundum applicable Corpus Juris is not that the law stated rule property as the stranger not the, Defendant was present case. Kealty Company, Y. think. The D. W. learned trial court seemed to county taxes state and the 1931 lot when appears, far as owned the so the collector by sale against time of the were assessed sale pass with did not 1938. whole title December redemption re- support as would collector, but such title or interest al., 347 Mo. et v. Hibbs assigns. Gilmore mained in owner its (Mo. App.), al. Koch et (2d) 26; 152 W. St. Louis S. under execu By operation (the 1. of law sheriff’s sale 156 S. W. the owner case) in the tax bill defendant became tion Corporation D. Y. AY. the lot that remained title interest in December after the sale collector on law), (Jones-Munger A., Sec. R. Mo. S. Sec. 11145 S. R. *7 provides occupant any taxes, or that “the owner or land lot sold for any therein, persons having may other an interest redeem the same any during ensuing” by things at years doing time the two next required goes “in by provide this section. See. 11145 on to case (at party purchasing his sale), said land the collector’s heirs or assigns, purchased fails to land so six take a deed within years expiration months after the next following of the two the date of sale, charged redemptioner no interest shall or collected from the Clearly, implication is, notwithstanding after time.” previous provision, out, 11145, any having above set one of Sec.
right to may expiration'of any redeem at the two do'so time after year period, delivery prior but the execution and of the collector’s up deed. So, collector’s deed was executed de until the August livered 7, 1942, right redeem, had the he defendant precluded should complaining from fraud that would not.be deed; following vitiate collector’s sale and The cases deal with subject Jones-Munger of inadequate bids at a collector’s sale under the 932; al., (2d) law. 169 S. McAboy Johnson v. 350 Mo. W. et 423; (Mo. Sup.), (2d) Mahurin et al. v. 161 S. Tucker W. J. C. Nichols (Mo. 274; Inv. Sup.), (2d) Co. v. Roorbach et al. 162 W. Kennen S. al. McFarling al., (2d) 681; et v. W. v. et 350 Mo. 165 S. Kelso (Mo. (2d) 926; Heagerty Hubble ux. Hawkins Sup.), et 163 S. W. v. (Mo. Sup.), that-the 173 S. W. 923. It is not overlooked action precluded of the court in sustaining only the demurrer not relying stricken, allegations pre from on the but crossbill not relying vented him from even on his denial. says: appellant’s “The al plaintiff (respondent) the brief
leged special tax interest of a bill in the real estate arose reason years Feigenbaum, many which had been back. Leon M. one of issued special tax attorneys brought upon bill, suit respondent, obtaining years and after after the tax sale judgment of a some 3 upon This tax bill sheriff’s sale was had. suit brought corporation, as against Realty Company, the Y. D. AY. fact, though corporation good standing. a matter of such was in As at time however, bringing suit and the time of good standing judgment rendering corporation was not said corporation having lost many years past, and had. not been for corporation its was not charter. The board of directors of the last parties require it is an admitted made as the of Missouri statutes corporation was (defendant’s crossbill) the record that such fact from ours). bringing (italics The- at the time the suit” defunct portion plaintiff out, crossbill referred to set defendant’s No. supra, plaintiff’s and it stricken will be noted No. was motion. any question
We do not mean to rule on merits of either title, in sustaining or defendant’s claim of but we think the court erred crossbill, the demurrer to the remainder of the answer and and so rule. remanded, should be reversed and cause and it is Osdol, CG., ordered. Van so concur. Dalton.and foregoing by Bradley; C., PER opinion adopted CURIAM:—The , judges opinion as the All the court. concur. B. DeTienne Jr., W. Peters, Peters, Hazel William M.
F. (Defendants), Howard Alan Peters and James Warren Peters, McFarling (De E. J. and Elsie McFarling, Mollett, Lester (2d) 954. fendants), Appellants. 39321. 188 S. W. No. Two, July 2,
Division appellants. Don Garter for C.