Corrigan v. Bell

Norton, J. This is an action of ejectment to recover possession of lot 27, block 26, West Kansas addition to the City of Kansas. The answer of defendant Bell is a general denial. The answer of defendants Smith and Nellie Smith, his wife, sets up an equitable defense. This answer was demurred to and the demurrer sustained, and the action of the court in this respect is the chief ground relied upon for a reversal of the judgment. The demurrer to the an-' swer admitted the following facts set up in the answer, viz : that plaintiff’s title to the property in question is derived through a sale thereof made by the sheriff by virtue of a certain execution which issued on a judgment rendered in a suit instituted by plaintiff on the 18th day of April, 1874, against Edward Dey'oeger, S. J. Eisher and Samuel Montgomery, to enforce the lien of a certain tax bill against said property; that said Deyoeger was the original owner [56] of said property, and on the 6th day of April, 1874, conveyed the same by deed of trust to S. J-. Fisher, as trustee for one Glass, to.secure the payment of a note therein described; which deed was on that day recorded; that Deyoeger had also, on the 10th day of September, 1873, conveyed, by deed duly recorded, the property in question to one Harrison,' in trust to secure the payment of a note held by one Kellerman for $1,000; that Nellie Smith is the holder and owner of the said note and deed of trust executed to Harrison in trust for Kellerman ; that Fisher, as trustee, sold the property conveyed to hyn in trust for Glass, at which sale Glass became the purchaser, and subsequently to his purchase sold one-half the land to one Bell, and that said Bell and Glass, by a suuseqúent deed, conveyed the entire property to defendant Nellie Smith ; that said Glass, Harrison and Kellerman, nor either of them, were made parties defendant in the said suit brought by plaintiff to enforce the lien of the special tax bill; that defendant Nellie Smith, before filing her answer in this suit, offered to redeem said property, and tendered to plaintiff $100, which he admitted was the full amount of the tax bill, interest and all costs of the suit instituted to enforce its collection, as well as all costs of this suit to date of tender. 1. specialta-xbill* He?* rights of preejectment: equitable defense: practice. It is provided in an act amendatory of the charter of Kansas City, in section 25, (Acts 1872, p. 411,) that persons interested in the land sought to be charged, who are not made defendants, shall not be affected by any judgment obtained m any suit on any , , 7 n special tax bill, nor by any sale under such judgment; “and if they claim through or under any parties defendant, prior to suit brought, may redeem from the purchaser or otherwise assert their rights‘■according to equity and good conscience.” Applying this act to the facts set up in the answer and admitted by the demurrer, it is clear that defendant Nellie Smith’s interest in the land was unaffected by the judgment rendered in the tax bill suit, [57] and that she had the right to redeem. The fact that Eisher was made party defendant in the tax bill suit was not sufficient to deprive her of this right, inasmuch as Glass, the beneficiary and real party in interest in the deed of April 6th, 1874, was not made a party. In the case' of Olmstead v. Tarsney, 69 Mo. 399, where the above statute was before the court for construction, it was held “ that the incumbrance on property created by special tax bill must be treated as conferring upon the owner thereof the same right which would have been conferred by a mortgage for that amount, and as being similarly subject to redemption.” Under the principle announced in that case, we think the answer of defendants set up an equitable defense to plaintiff’s action, and that the affirmative relief asked for might well be granted, on the authority of the following cases: Baker v. Circle, 60 Mo. 264; Bartlett v. Judd, 21 N. Y. 200: Bliss on Code Plead., § 349. 2. damages : married woman. Aside from the error committed in sustaining the demurrer, personal judgment for damages was rendered against Nellie Smith, and she being a married woman, this is sufficient to authorize a reversal of the judgment. Lincoln v. Rowe, 64 Mo. 138, and cases cited. Judgment reversed and cause remanded, in which all concur.