Gulley v. Waggoner

OPINION. I. BOND, J. Limitations: 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.] There 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. [621] II. The 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. Limitations: 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. Waggoner, 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 [622] tice.” 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. In 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 [623] having the means of knowledge, although he may not use them.’ ” [Sensenderfer v. Kemp, 83 Mo. l. c. 588.] In 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. III. Reimbursement 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. Woodson, P. J., and Lamm, J., concur in result in separate opinion by Lamm, J. Graves, J., concurs in result.