Opinion
No. 41798.
December 11, 1950.
APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, EMMETT J. CROUSE, J.
Richard W. Mason, for appellants.
Earl G. Borchers, St. Joseph, Mo., for respondent.
Dorothy King instituted this suit on April 9, 1949, against William Fasching and Ella Fasching, husband and wife, to quiet title et cetera to Lots Nos. 25, 26, 27, and 28, Block 18, Florence addition, St. Joseph, Missouri. Plaintiff bases her claim to relief on adverse possession and on the ground that a City tax deed passing title to defendants is void on account of the inadequacy of the consideration. The trial was to the court. The judgment and decree was for the plaintiff upon a showing that plaintiff had reimbursed defendants for their outlays, with interest and costs. The material facts follow.
According to the record William C. Barrow acquired said lots under a sheriff's deed dated March 5, 1935, recorded March 23, 1935, the result of a sale under a general execution on a judgment in favor of said Barrow and against the Florence Investment Company, a corporation.
On April 8, 1935, William C. Barrow and Margaret W. Barrow, his wife, conveyed said lots to Robert King and Dorothy King, husband and wife, by quit claim deed. The recited consideration was $100 although plaintiff testified the grantees paid $250. This deed was duly acknowledged but never recorded. Robert King and Dorothy King, husband and wife, were also grantees in a warranty deed from said Florence Investment Company dated April 9, 1935, acknowledged April 12, 1935, and recorded March 1, 1949. The Kings did not promptly record their deeds.
Mr. and Mrs. King went into immediate actual possession of the lots, vacant at the time, moved a house thereto, repaired, improved, and enlarged the house, placed a garage on the lots, and set out fruit trees. They, with their children, continuously and uninterruptedly thereafter occupied the lots for the family home. They paid the taxes at the Court House and City Hall (state, county, and city) up to and including the taxes for 1947, with the exception of the 1946 City taxes. Mrs. King testified she thought all taxes had been paid.
A City tax deed was introduced in evidence by defendants conveying the lots involved to William and Ella Fasching, the recited consideration being $4.26. §§ 6350-6352, R.S. 1939, Mo.R.S.A. We understand the bid was the amount of the City taxes due and unpaid for 1946. This deed was dated, acknowledged, and recorded November 1, 1948. Defendants also introduced in evidence a quit claim deed of William C. Barrow and Margaret W. Barrow, his wife, conveying said lots to defendants, dated and acknowledged on December 7, 1948, and recorded on December 8, 1948.
Robert King died August 26, 1948. When Mrs. King returned from work one evening in November, 1948, she found a note from defendants to come to see them and, when she did so, was informed by Mrs. Fasching that they had purchased the lots at a sale for delinquent 1946 City taxes. Mrs. King testified she told Mrs. Fasching that she waited outside when her husband went in to pay the 1946 City taxes; that her husband returned stating there was a line of people waiting to pay their taxes and, upon becoming ill, he had given the money to, we understand, defendants or one of them to pay the 1946 City taxes, and they never heard anything more about it; that Mrs. Fasching told her Mr. King had not given the money to them. The evidence established that the Kings paid the taxes (state, county, and city) on the lots from the time they went into possession in 1935 up to and including the taxes for 1947, except the City taxes for 1946. Mrs. King testified that when she went to pay the taxes for 1948 she was told they had been paid by defendants.
Mrs. King testified that she and her husband had over $1,250 invested in the property. The property was valued by realtors at $900, and $800 to $1,000.
Defendants, having recorded their deed, although executed at a later date, ahead of the recording of any deed showing title in plaintiff and having no actual notice of plaintiff's deed, say that they are entitled to rely upon the record title; and plaintiff, not being an owner of record, may not contest the sufficiency of the City tax deed to defendants. Consult § 3428, R.S. 1939, Mo.R.S.A.; Harrison v. Moore, Mo.Sup., 199 S.W. 188, 189[2], citing cases; Lucas v. Current Riv. Land and Cattle Co., 186 Mo. 448, 456, 85 S.W. 359, 361; Harrison Machine Works v. Bowers, 200 Mo. 219, 231, 98 S.W. 770, 773, and other like holdings.
Defendants' cases are not controlling. Plaintiff does not rely solely upon her unrecorded deeds. Her contentions embrace the possession of herself and husband, raising their family, adverse to all since they took possession under their deed in 1935 — more than the statutory ten years. § 1002, R.S. 1939; Mo.R.S.A. We have said: "A title acquired by adverse possession, under our statute, is in every respect as good, for purposes of attack or defense, as a title by deeds running back to the government." Scannell v. American Soda Fountain Co., 161 Mo. 606, 618, 61 S.W. 889, 891, citing cases. Johnson v. McAboy, 350 Mo. 1086, 1091[5], 169 S.W.2d 932, 935[6, 7], citing cases, recognizes the right of one claiming title by adverse possession to question a tax deed where the adverse possession antedated the lien for the taxes. 2 C.J.S., Adverse Possession, § 202, p. 805; 1 Am.Jur. 796, §§ 11, 13, 15, 16. The observations of Scott, J., in Beatie v. Butler, 21 Mo. 313, 321 (4), cited by defendants, with respect to possession in itself not being any notice has been expressly disclaimed and not sustained. See Maupin v. Emmons, 47 Mo. 304, 307.
The evidence establishes that defendants acquired title to property worth $900 or more for $4.26 at the City tax sale. Under the authorities defendants' City tax deed is vulnerable to attack and voidable on account of the gross inadequacy of the consideration paid therefor. Bussen Realty Co. v. Benson, 349 Mo. 58, 66-69, 159 S.W.2d 813, 817[3-7]; Johnson v. McAboy, 350 Mo. 1086, 1092, 169 S.W.2d 932, 935[8]; Rudd v. Scott, 351 Mo. 1206, 1210, 175 S.W.2d 774, 775; Campbell v. Daub, 349 Mo. 153, 159, 159 S.W.2d 683, 685; Kelso v. Hubble, Mo.Sup., 163 S.W.2d 926[2]; J. C. Nichols Inv. Co. v. Roorbach, Mo. Sup., 162 S.W.2d 274[2].
Plaintiff's adverse possession defeats defendants' title under the quit claim deed, dated December 7, 1948, of the Barrows to defendants. § 1002 and authorities supra.
Defendants' presentation does not establish reversible error. The decree was for the right party. It is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.