251 Mo. 147 | Mo. | 1913
This is an action coming here on appeal from the circuit court of Benton county, involving the title to certain real estate situate in that county. The petition contains two counts; the first count is a suit to determine interest under section 2535; the second count is ejectment.
The answer is (1) a general denial; (2) a setting up of the manner in which defendants obtained their alleged title to the land in controversy, to-wit, by purchase thereof at a tax sale; (3) a plea of the Statute of Limitations, vaguely averred; (4) a plea averring laches, and (5), finally, that if the decision of the corrrt be adverse to them they have judgment, by way of counterclaim, for the value of certain improvements, which they aver they erected upon the land in question, and for the sums paid out by them as the purchase price at the sale for taxes, and for taxes paid on the land for some six years.
The cause was tried before the court sitting as a jury; no declarations of law were asked by or given for either side. The court' found the issues for plaintiff upon both counts of his petition; adjudging him on the first count to be the owner in fee thereof and divesting the defendants of all title thereto, ánd on the second count adjudging to him ouster of defendants from the possession of said land. No finding whatever was made upon the- equitable counterclaim of defendants for their improvements; for the sums expended by them as the purchase price of said land when bought at the tax sale, or for sums paid by them as taxes on the land since the tax sale and up to the-time of-the bringing of this suit. From the judgment in favor of plaintiff, defendants, after the usual procedure, duly took and now prosecute this appeal.
The suit was brought on the 6th day of August, 1908; the land was sold for taxes as the land of “Sylvastus H. Williams” and bought in by defendants M. L. Sands and J. W. Sands on the 12th day of August, 1898.
The proof adduced upon the trial on the part of plaintiff tended to show that plaintiff was the only child and the only heir at law of one Sylvester H. Williams; that said Sylvester H. Williams died on the 27th of April, 1905, leaving no widow surviving him. Plaintiff offered patents from the United States Government to the land in question, conveying the same in fee to. “Sylvestus H. Williams” of Benton county,
Upon cross-examination, plaintiff testified that he had never lived in Benton county except about eight months; that his residence was in Kansas City; that he had been known there in late years as “John F. Hall” and had been called and known there also as “John F. "Williams;” that he had changed his name from Williams to Hall some seven or eight years prior to the trial. Plaintiff also testified that his father’s true name was “Hall;” that his father was a British subject who ran away from Toronto, Canada, at the beginning of the 'Civil War and enlisted in the army under the name of “Williams,” and that his father retained the name of “Williams’’ till his death. Plaintiff’s testimony further showed that he had himself personal knowledge of his father’s entry of the land in question and of his going to Boonville for the purpose of entering the same, and that the name mentioned in the patents is, or was intended to be, that of the identical person who was the father of plaintiff. By inference, though not pertinent here, it is to be gathered from the record that Sylvester IT. Williams died in the Soldier’s Home at Leavenworth, Kansas. The mother of plaintiff and the wife of the said Sylvester died the 19th of April, 1901.
Defendants offered a tax deed under a sale of the land for taxes, which deed was dated the 12th day of August, 1898; recorded on the 27th day of August, 1898, and purported to convey to defendants M. L. Sands and J. W. Sands in equal shares, the right, title and interest of “Sylvester H. Williams” in the land in controversy. Defendants also offered the petition in the tax suit, which suit was brought against “Sylvastus H. Williams” and the summons issued thereon which was made" returnable “on the first Tuesday af
“Sheriff’s Return. Executed the within writ in the county of Benton, on the 23d day of November, 1897, by making diligent search for the within named Sylvastus IT. Williams, and not finding him in my county.
A. F. Prtjssing, 'Sheriff, Benton County, Mo.”
This summons was issued on the 16th day of November, 1897, and was returned, so far as the record shows, on the 23d of November, 1897, though upon its face it was returnable on the “first Tuesday after the second Monday in December, 1897.” At the December adjourned term, 1897, and on the 21st day of February, 1898, as appears from the proof of an order of publication published in the “Warsaw Times,” a weekly newspaper published in Warsaw, Benton county, Missouri, an order of publication was made in the case of “the State of Missouri at the relation,” etc., “against Sylvastus H. Williams,” which, after reciting that the sheriff of Benton county, after making diligent search was unable to find the said ‘ ‘ Sylvastus H. Williams” in his said county and “has returned said summons non est as to said defendant Sylvastus Williams, and it further appearing to- the satisfaction of the court that the said defendants cannot be served with process in this case, it is therefore ordered by the court that the said defendant J. M. Addington [sic] shall be notified by publication.” Further proceeding said order seems to-be in proper form. Neither an order of the court nor any minute by the clerk was found in the records of the circuit court ordering or authorizing the publication of the order partially quoted above, though a search of the record was made. Upon the matter of an order, all that was shown was the printed proof of publication as taken from the newspaper and verified by the publisher thereof.
This statement Avould seem to cover sufficient of the facts to make clear what is said in the subjoined opinion.
I. The first contention of defendants which we shall notice arises from their complaint that since the plaintiff claims under “Sylvester R. Williams,” and since the title shown by him was in “Sylvestus 3. Williams,” no recovery can be had by plaintiff, since the names “Sylvester” and “Sylvestus” are not idem sonans.
IV. The defendants contend that even though it be found in effect that their paper title is bad, yet that plaintiff is estopped to claim title here by his laches. The particular fact, or facts, apparently upon which defendants predicate this contention, arise largely from the conversation had by M. L. Sands with plaintiff- in 1903. Plaintiff himself says nothing as to this conversation though he does not deny it. The substance thereof rests wholly upon the testimony of Sands. His testimony and all of the testimony in the case as to this conversation is as follows:
Upon the above testimony and upon the fact that defendants paid the taxes on this land from 1898 to 1905 when the suit was brought, is bottomed the contention of laches. At this time plaintiff lived in Kansas City. He was not in the county of Benton where the land lies at any time after the year-1903, when he had the conversation with defendant Sands, until the trial of this suit, so far as the record shows. The fact as to the erection of the house by defendant White need not be considered. The circumstances themselves are such as to take them out of consideration as any basis for the application of the doctrine of laches. If laches exist in this case it must come from the failure to sue for five years after this conversation, and from
YI. Defendants complain'that the judgment rendered by the court below should have afforded them relief for money laid out for taxes paid by them and for improvements and other money laid out by them in the purchase of this land.
Taking the last point first, and considering the last point as well as the question of taxes paid by de
Since this is an action at law defendants are bound to recover by virtue of law and not by virtue of any of the provisions of equity, notwithstanding they have put into their answer a plea for equitable relief, by way of a shadowy counterclaim sounding in equity. Their status is unfortunately fixed for them by the attitude of plaintiff. It is not an equitable answer that gives relief, so as to permit defendants to recover
So holding it results that this case should be affirmed, without prejudice, however, to the right of the defendants, if they are so advised, and if the facts permit, to bring an action for the ascertainment of the value of the improvements. It is so ordered.