Wolcott v. Wilsey

Brace, J. — In an action instituted in the circuit court of Clark county by the State of Missouri at the relation of Joseph H. Million, collector of said county, against Peter H. Weaver et al. to recover taxes delinquent upon the premises (a small tract of thirteen acres in said county) described in the petition, judgment was rendered in favor of the plaintiff, and under a special execution thereupon issued, the same was on the twenty-sixth of October, 1888, sold to the said Joseph H. Million. It appears very clearly from the evidence that this tax suit was instituted by the said Million at the instance and request of the plaintiff Phgebe A. Wolcott, who had an undivided interest in the land with the defendants therein, and acted in this behalf for herself and for them and with their consent, for the purpose of perfecting the title in Mrs. Wolcott; that she furnished Million with what was supposed to be a sufficient amount of money to pay the taxes and costs of suit, [203] and that in consideration thereof he undertook to buy the land at the sale for her and to take the deed in her name. This he did not do, but bought the land in his own name and afterward on the twenty-seventh day of October, 1888, received from the sheriff a deed duly executed and acknowledged in open court conveying the premises to him-. Afterward on the fourteenth day of December, 1888, the said Million by quitclaim deed of that date conveyed the premises to one William Hand, who afterward on the sixth day of August, 1894, by quitclaim deed of that date conveyed the undivided five sixths thereof-to the defendant Charles Wilsey. On the fifteenth day of September, 1894, this suit was instituted by the said Phoebe A. Wolcott and her husband, in which she asks that the defendant be declared a trustee for her of the legal title thus acquired by him and that the same be vested in her. From the decree in the circuit court in favor of the plaintiff in accordance with this prayer, and the judgment against the defendant for costs, he appeals. The first objection urged against the decree and judgment is, that as Mrs. Wolcott was not made a defendant in the tax suit, her interest therein was not affected thereby and she can not maintain this action. There is nothing in this contention. The trust arises in this case from the contract between the plaintiff and Million and the receipt by him from her of the purchase money for the title sold, and not by reason of any interest she had in the land or relation she sustained to the suit otherwise than through him. It is next contended, that the fact that the plaintiff was using the machinery of the revenue law for the purpose of perfecting the title in her as against her co-tenants, should preclude the plaintiff from the relief sought. This objection has no better foundation than the first. It is apparent from the evidence that the [204] action of Mrs. Wolcott in this matter from the beginning was taken in conformity to the wishes of the other heirs, and with their assent, except, perhaps, as to one, a nonresident who had not been heard of for twenty years, and which fact seemed to them to render this course of proceeding necessary. The relation of these parties to each other and the land has nothing to do with the trust which Million for a valuable consideration assumed, and which a court of equity ought to enforce. The contention finds no support in the authorities cited. The third and last contention is, that the plaintiff, by delay in bringing this' suit, has been guilty of such laches as should debar her of the relief sought. The evidence tends to prove and the court found that Mrs. Wolcott, who resided in Howard county, was not advised that the property was sold, and that Million had taken a deed therefor in his own name, until about January 27, 1889, or that he had conveyed the same to anyone until about the seventeenth of February, 1889. On the twenty-third of October, 1891, Mrs. Wolcott instituted an action in ejectment in the Clark circuit court against Hand to recover possession of the land, which seems to have been prosecuted upon the theory that the deed from the sheriff to Million was void by reason of the fact that he was at the time of his purchase the collector for whose benefit the land was sold. The trial court refused to sustain this contention, and upon appeal to this court the judgment of the circuit court was affirmed on the twelfth day of June, 1894, except as to one sixth of the land, to which the title of Mrs. Walton was • unaffected by the deed. Walcott v. Hand, 122 Mo. 621. Within three months after the final judgment was entered in that case, she commenced the present suit. We fail to see any laches upon her part that should preclude the relief sought. The judgment of the circuit court is affirmed. All concur.