Zimmerman v. Chicago, Great Western Railway Co.

BRACE, P. J. This is an action in ejectment to recover possession of lot 1 in block 8, in the city of St. Joseph. The joetition is in two counts, the first in usual form in ejectment. The second for the recovery of the amount of the taxes paid by plaintiff on the premises for the tax title, under which she claimed in the first count, and afterwards, and for penalty, interest and costs, under the provisions of section 1373, Revised Statutes 1889. The answer after admitting possession was a general denial, plea of statute of limitations and payment of taxes before the execution of the ,tax deed. The case was tried by the court without a jury, the finding and judgment was for the defendant on the first count, and for the plaintiff on the second count, from which defendant appeals. (1.) The land was sold on the 13th of January, 1887, for delinquent taxes for the years 1875 to 1886, inclusive. The taxes were paid to the city and certificate issued to the plaintiff under the provisions of section 1358, Revised Statutes 1889, on the 30th of September, 1887, and the tax deed made in pursuance thereof was executed on the 7th day of November, 1888. This suit was instituted on the 16th of March, 1897. Therefore the plaintiff’s right of action for the recovery of the premises on her title under the tax deed was not barred by the statute of limitations, and as her right of action for the recovery of the taxes paid, was an incident of that action, and dependent upon the failure of that title in that action, that right could not be barred by limitation. [R. S. 1889, sec. 1373; Pitkin v. Reibel, 104 Mo. 505.] (2.) Counsel for appellant contend that the payment of the taxes under the circumstances disclosed by the evidence on the trial, enured to the benefit of the defendants, and ask us to convict the trial court of error in not so holding. This is an action at law. No objections were made [566] or exceptions taken to any of the rulings of the court on this issue, upon the trial. No declarations of law were asked, given or refused, and .under the uniform rulings of this court, the finding of the trial court upon that issue is not before us’ for review. [Altum v. Arnold, 27 Mo. 264; Gould v. Smith, 48 Mo. 43; Harrison v. Bartlett, 51 Mo. 170; Parkinson v. Caplinger, 65 Mo. 290; Hammons v. Renfrow, 84 Mo. 332; Thies v. Garbe, 88 Mo. 146; Bray v. Kremp, 113 Mo. 552; Hill v. Kingsland, 131 Mo. 648; Bethune v. Railroad, 139 Mo. 574; Sieferer v. St. Louis, 141 Mo. 587.] This case does not fall within the exceptions recognized in those cases where the rulings of the trial court are upon an agreed case, a special verdict, or when the evidence is wholly documentary. The judgment of the circuit court is affirmed. All concur.