Gulley v. Waggoner

¶1OPINION.

¶2I.

¶3Limitations: Pleading. (After stating the facts as above.)— The first point made for appellant is that this action is barred by the Statute' of Limitations of three years, fixed as the time within which suit against purchasers at tax 'sales must be brought, barring certain exceptions and the rights of minors to sue within two years after the removal of their disability. [R. S 1909, sec. 11506a.]

¶4There are two answers to this contention. (1)' This particular statute was not pleaded, and while the general statute of ten years was pleaded and could have been relied upon even under a general denial, since, if sustained by the proof, it would create an indefeasible estate in fee (Nelson v. Brodhack, 44 Mo. l. c. 600; Watt v. Donnell, 80 Mo. l. c. 198), and therefore, would disprove plaintiffs’ title, and, hence, fall within the scope of the issue made by a general denial; yet in other cases where the particular statute of limitations is merely a bar to the suit, the rule is uniform that such Statute of Limitations must have been specially pleaded to be available. That wasi not done in this case. (2) The proof did not show that the plaintiffs had reached their majority two years before the bringing of this suit. Por these reasons we overrule this assignment of error.

¶5*621II.

¶6The only error assignable on this'appeal is that the judgment is for the wrong party, for no instructions were asked or given on the trial of the case, and no other exceptions are saved. We think that the judgment is well sustained by the proof.

¶7Limitations: Taxt Suit: Actual Owner Known. The evidence showed without dispute that the mother of the plaintiff, Ruth Gulley, had for twenty years lived on the land, and for about s^een years immediately before her death, had lived there with her husband and asserted title and ownership to it openly, notoriously, continuously and adversely to the entire world, and paid all the taxes and exhibited the receipts therefor from the collector; that after her death her husband, after remaining a year, turned over the land to her cousin,- in which condition it remained for two or three years when it was sold for taxes and purchased by defendant. None of the plaintiffs were made parties to that proceeding. They were minors at the time and the collector, instead of suing the parties as the heirs of their mother, brought his action against “Girdin J. Rushin and Iris unknown heirs and devisees,” although the collector had actual knowledge, from the receipts given by him for taxes paid, that the land in question was owned or claimed by Ruth Gulley, the mother of the plaintiffs.

¶8Waggoner, the tenant of his codefendant Poore, testified that he knew the heirs to this land. Poore, while in the witness stand, refrained from testifying whether he knew of their ownership. It has been expressly ruled in Watt v. Donnell, supra, that when the tax title is sought to be upheld against a title based on adverse possession, the defendant is entitled to show notice of his title growing out of his open-and hostile possession of the property for the statutory period. In the language of the opinion, “His long continued and notorious possession standing for no*622tice.” Under that rule, the adverse possession of plaintiffs’ mother affected the purchaser at the tax sale with notice of plaintiffs ’ ownership. This constructive notice brings this cause within the doctrine laid down in Zweigart v. Reed, 221 Mo. l. c. 44, where, in discussing a tax deed based on a proceeding brought against the record, but not the real, owner, Graves, J., said: “And further, if he had such notice as would have placed a prudent man upon inquiry as to the facts, and such inquiry would have revealed the fact that the real owner had not been sued, then he would be in the same position as. if he had actual knowledge of the fact. In fact, such would be construed in a court of equity to be actual notice.” To the same effect is Stuart v. Ramsey, 196 Mo. l. c. 416.

¶9In this case the record owner ostensibly sued, had been dead for fifty years, the assessor and collector had positive knowledge for the last twenty years of that period, that the mother of the plaintiffs and her husband were in adverse possession of the land and claiming to own it, and paying the taxes, regularly assessed against them on said land, and notwithstanding this knowledge, he did not join any of the plaintiffs as parties to the tax proceeding. The fact of the ownership of plaintiffs was within the knowledge of all persons residing in the neighborhood of the land, was admitted by the tenant (Waggoner), whom the tax purchaser put upon the land. The slightest inquiry on the part of the tax purchaser would have revealed it to him since it was common knowledge in the vióinity and was disclosed in the records of tax assessments and payments in the collector’s office. It is plain that the purchaser had full opportunity to acquaint himself with the fact that the taxsuit had not been brought against the present owners of the land. Said Black, J., in speaking for this court, “Notice ‘is actual when the purchaser either knows of the existence of the adverse claim of title or is conscious of *623having the means of knowledge, although he may not use them.’ ” [Sensenderfer v. Kemp, 83 Mo. l. c. 588.]

¶10In our view the defendant. Poore was sufficiently put upon his inquiry by the facts shown in this record and therefore in legal intendment had actual notice that the owners of the land, by a title which ripened into a fee by adverse possession of more than twenty years, had not been made parties to the tax suit under which he bought and therefore his deed must be held subject to their rights.

¶11III.

¶12Reimbursement for Taxes paid. The appellant insists, the court made no allowance to him for the taxes paid since he took possession of the land. The evidence showed that he ^ad expended in all about eighty dollars and had received much more than that from his tenant Waggoner and from the use and occupancy of the land. We do not think under these circumstances there is any necessity for remanding the case. The judgment is affirmed.

¶13CONCURRING OPINION.

¶14Tax Deed: Limitation statute: Void. Section 11506a, Revised Statutes 1909 (a part of a former, 1872, revenue scheme), was left out of our revisions of 1879, 1889 and 1899' on the theory it was repealed. In Bird v. Sellers, 122 Mo. 23, decided in 1894 by Division One, this Division held it was not repealed. In making that pronouncement this Division overruled the whole court on the same point (Blodgett v. Schaffer, 94 Mo. l. c. 672), and without sending the case into Banc, where it should have gone for reconcilement in order that this court might not speak with a double tongue. The to-be-expected *624mischief happened; for on the authority of the Bird-Sellers case the last revisor reprinted said statute as live law, and it makes its new appearance in this case to be dealt with after an absence of thirty years. That se'ction is a special statute of limitations of three years' in suits against tax purchasers, their heirs and assigns. The principal opinion in the instant case, in paragraph 1, deals with that section in terms impliedly making it applicable if pleaded (and if its provisions tolling its terms in favor of minors are observed) to suits against tax purchasers under the present revenue scheme passed in 1877 — a scheme built on different lines in fundamental particulars.

¶15I do not agree to that implication, and deem the question too important to let such implication be written as the law without respectful and earnest protest.

¶16That the two schemes for collecting back taxes and protecting purchasers cannot stand together is certain, and it is plain to me that the proper interpretation of the 1877 act results in causing the section brought to light by our revisors to perish by construction under well known rules of legal hermeneutics. But it is not necessary to say anything' on the question whether the section was in fact and technically “repealed.” Let it be reserved until reached as a deciding point, if ever, in some case arising on some tax sale made under the revenue scheme of 1872. All necessary to say for the purposes of this concurring opinion is this: That special Statute of Limitation is not applicable, in my opinion, to suits (as this one is) involving tax titles under the revenue scheme in vogue since 1877, to-wit, of enforcing tax collections by suits, summons, actual or constructive service, judgments, special executions, sales thereunder and deeds following such sales. Even Bird v. Sellers, supra, recognizes the view just expressed (p. 32). And Bartlett v. Kauder, written by the same learned judge *625who wrote the Bird-Sellers case, directly so held. [97 Mo. l. c. 361.]

¶17There is another section, part and parcel of the same abandoned revenue scheme, section 11507, now encumbering our general statutes. The two sections (with others) were companions in number and in aid of the same legislative thought. One was section 221 and the other section 222 of the old revenue act (Laws 1872, p. 80). It has been ruled that section 11507 is also functus officio so far as applicable to the revenue act of 1877. [Burkham v. Manewal, 195 Mo. l. c. 508.] I cite the last case as persuasive arguendo.

¶18For a generation we have been deciding tax title cases on the theory that a ten-year (not a three-year) statute governed. "Were all the array of cases so decided lapses into an unbroken chain of inadvertence and (more yet) unsoundness? I am not willing to lightly unsettle a rule of property, even by indirection through implication, and therefore dissent from the reasons given for denying the application of the three-year statute in this casé. I put my concurrence in the result on the ground that the statute does not apply to tax sales under laws governing them since 1877. The heresy that the three-year statute is applicable should not be treated with judicial toleration, as if by way of confession and avoidance (as here), but as a snake in the grass to be not only scotched but killed out of hand.

¶19Reimbursement for Taxes Paid. In 1903 an act was passed making taxes paid by tax purchasers recoverable when tax titles failed and when pleadings were drawn to that end. [Laws 1903, p. 254 5 R. S. 1909, secs. 11508 and 11509.] law was in force when the tax sale was made in the instant case, hence it applies here. [Haarstick v. Gabriel, 200 Mo. 237; Burkham v. Manewal, supra.] In this case the pleadings tendered on one hand (and claimed on the other) *626taxes paid. I think the .judgment should be amended here so as to encompass a recovery of them by Poore. Rents should not be offset against them, as the principal opinion seeks to do. The case was ejectment. Plaintiffs sued for possession and rents. Presumably they recovered their rents in this judgment. At least they did not appeal, and to allow taxes paid to be offset op. appeal against rents accrued is either to make two payments of rents, or is to ignore a tender and a palpable lapse in legal right in the judgment below. The judgment ought not to be reversed, but should be modified as to taxes and so entered here. [Mangold v. Bacon, 249 Mo. l. c. 50.]

¶20I agree that the Statute of Limitations creates title, is a sword and shield both. I agree that one who has so acquired title and is in open possession exercising acts of ownership is in a position where his actual and notorious possession puts a purchaser on inquiry. That doctrine is announced in the cases, cited by my brother. In this case, too, there seems to be actual notice. But some of the broad language of the opinion may be held to mean that the echo of an ancient possession, abandoned, or not kept up, and which may have once created title, is sufficient without more to put a purchaser on inquiry. When I wrote Adams v. Gossom, 228 Mo. l. c. 581, et seq., I had doubts on that proposition, and still entertain them. Hence 1 desire to be marked as saying nothing thereon in this case.

¶21Subject to the modifications suggested, I concur.