Opinion
March 13, 1941.
1. APPEAL AND ERROR: Abstract of the Record: Rule 13. Where appellants filed an incomplete abstract of the record and respondent filed an additional abstract, setting forth matters omitted from appellants' abstract which helped to clarify the issues, and it appears that appellants have not intentionally attempted to mislead the court, respondent's motion to dismiss the appeal for failure to comply with Rule 13 is overruled.
2. QUIETING TITLE: Equity. Where pleadings in the action to quiet title make an equity case the Supreme Court tries it de novo, giving due deference to the findings of the chancellor.
3. TRIALS: Tax Sale: Evidence. In an action to quiet title to land where plaintiff claimed as purchaser at a tax sale and defendants were the holders of a deed of trust and others, an offer by defendants to prove that the person whose title plaintiff claimed to have purchased, on the day he executed certain deeds of trust, executed a deed describing the land, was properly excluded, where defendants did not show diligence in attempting to locate the alleged lost deed.
Where a defendant in an action to quiet title introduced an unrecorded deed which tended to show a claim inconsistent with the claim set up in his answer, that he had a right to redeem under a deed of trust, it was properly excluded.
4. TAX SALE: Inadequacy of Price. In an action to quiet title where plaintiff claimed under a tax sale and the price paid was about twelve cents per acre, the land largely cut over swamp land, but subject to unpaid taxes and a mortgage on 1500 acres for $9300, and on account of the condition of the land and the financial depression it had no market value and the actual value as distinguished from the market value was from eight to ten dollars per acre, the tax sale was not void for inadequacy of price.
5. QUIETING TITLE: Tax Sale: Deed of Trust: Common Source of Title. On appeal of an action to quiet title where it appears from the pleadings and abstract that appellants claim all the land in suit by virtue of deeds of trust executed by an alleged holder of title and respondent claimed under a tax judgment against the same person, appellants were not in a position to claim that a common source of title was not shown.
6. TAX TITLE: Right to Redeem as Owner of Deeds of Trust. In an action to quiet title by a purchaser at a tax sale, defendants could not defeat the action on the ground that they had a right to redeem because the holder of the notes under which they claimed were not made parties to the tax suit, where the history of the notes secured does not appear definitely from the record and where on appeal the Supreme Court cannot determine with certainty who was the owner of the notes during the pendency of the tax suit.
Notwithstanding Section 9953, Revised Statutes 1929, requiring that the real owner, if known, just be made a party to a tax suit under the evidence the Supreme Court cannot convict the chancellor of error in refusing to hold a tax deed void, under the circumstances stated, where defendants did not stand on the presumption of ownership arising from possession of the notes secured by the deed of trust foreclosed, but attempted to prove the manner in which they claimed title to the notes.
If defendants acquired the notes after maturity, they acquired them subject to any defects of title.
Appeal from Scott Circuit Court. — Hon. Frank Kelly, Judge.
AFFIRMED.
Edward F. Sharp and C.M. Buck for appellants.
(1) The holder of a deed of trust on real estate is a necessary party to a suit for taxes, and if not made a party, his interests are not affected by the judgment rendered in the tax suit and he has the right to redeem from the tax sale. Stafford v. Fizer, 82 Mo. 399; Allen v. McCabe, 93 Mo. 144; Boatmen's Savs. Bank v. Grewe, 84 Mo. 478; Giraldin v. Howard, 103 Mo. 45; Landau v. Cattrill, 159 Mo. 315; State ex rel. v. Reynolds, 213 S.W. 69; Barrie v. Whitton, 13 S.W.2d 47; Hider v. Sharp, 257 S.W. 113; Little River Drain. Dist. v. Sheppard, 7 S.W.2d 1014; Mo. Real Estate Loan Co. v. Gibson, 220 S.W. 677, 282 Mo. 75; Bell v. Ham, 188 Mo. App. 71, 173 S.W. 744; Williams v. Hudson, 93 Mo. 529; Taff v. Tallman, 277 Mo. 163, 209 S.W. 868; Hilton v. Smith, 134 Mo. 507; Zweigart v. Reed, 221 Mo. 45; Keaton v. Jorndt, 168 S.W. 738; Stuart v. Ramsey, 196 Mo. 417; Construction Co. v. Ice Rink Co., 242 Mo. 253; Adams v. Gossom, 228 Mo. 566. (2) The rule permitting the taxing authority to sue the owner as shown by the record has never been held to apply to one whose title is not required to be placed of record. For example, it does not apply to: (a) Heirs of a deceased title record holder. (Title by descent). (b) Parties whose title is based on adverse possession. (c) Where the taxing authorities knew that the party appearing of record to be the owner, was not the actual owner. (d) Where the purchaser at the tax sale has knowledge of an outstanding title not of record. (e) Anyone whose title is based on an instrument not necessary to be recorded in the local land records. Williams v. Hudson, 93 Mo. 527; Bell v. Ham, 173 S.W. 744, 188 Mo. App. 71; Adams v. Gossom, 228 Mo. 566; Perkinson v. Meredith, 158 Mo. 457; Gay v. Cantwell, 191 Mo. 898; Cases under Point 1. (3) There is no law in this State requiring that an assignment of a note secured by a deed of trust be placed of record and absent such requirement, recording would not be constructive notice of such assignment. Holmes v. Doe Run Lead Co., 223 S.W. 779; Brown v. Baldwin, 121 Mo. 115; Mason v. Black, 87 Mo. 342; Speck v. Riggin, 40 Mo. 405; Vaughn v. Tracy, 22 Mo. 415; Sec. 3040, R.S. 1929; Heintz v. Moore, 246 Mo. 226, 151 S.W. 449. (4) The assignment of a promissory note secured by a deed of trust carries with it control of the deed of trust and thereafter all control of same was lost by the original payee. Joerdens v. Schrimpf, 77 Mo. 383; Hagerman v. Sutton, 91 Mo. 519; George v. Summerville, 153 Mo. 7; King v. King, 182 S.W. 1047; Lee v. Clarke, 89 Mo. 553; State Bank of St. Louis v. Frame, 112 Mo. 502; Morrison v. Roehl, 215 Mo. 545; Cooper v. Newell, 263 Mo. 190, 172 S.W. 526; Hellweg v. Bush, 74 S.W.2d 89. (5) Proceedings for the collection of taxes by drainage districts are governed by the same procedure authorized by statute in the collection of State and county taxes and this includes service by publication on unknown defendants. Sec. 10765, R.S. 1929. (6) A lost deed may be proved in any one of two ways: By proof of such facts as will raise the presumption of such deed having been made; by direct evidence that such deed was made and has been lost or destroyed. Brooks v. Roberts, 220 S.W. 14, 281 Mo. 551; 38 C.J. 277, sec. 69; Chambers v. Birk, 109 S.W.2d 117; Jones v. Kirk, 270 Mo. 408, 194 S.W. 44; Felker v. Breece, 226 Mo. 520. (7) Where the law requires a thing to be done, the record of doing of such act duly filed and recorded in accordance with such law is competent evidence of the existence of the facts stated therein. 53 C.J., p. 604; Paving Co. v. O'Brien, 128 Mo. App. 284. (8) No common source of title having been agreed upon as to the lands in Section 2, Township 22, Range 12, and plaintiff Bullock having failed to offer proof showing the title to said section, he cannot recover in any event as to that section. Nall v. Conover, 223 Mo. 477; Hunter v. Pemiscot Land Cooperage Co., 246 Mo. 135, 151 S.W. 714. (9) The plea of laches is not available to the plaintiffs under the facts in this case. Myers v. DeLisle, 259 Mo. 506; Bell v. Ham, 188 Mo. App. 71; Fleming v. Wilson, 277 Mo. 571; Merriweather v. Owerly, 228 Mo. 218; Harttman v. Owens, 293 Mo. 508; Keaton v. Hamilton, 264 Mo. 564; 21 C.J., sec. 211, p. 210; Jones v. Temple, 189 S.W. 847. (10) Plaintiffs in this case cannot challenge the legality of the transactions under which Allan G. Morrison acquired title for the reason that their claim, if any they have, rests solely upon that transaction. In any event, the law would set up a vendor's lien in favor of the holder of the notes because they show on their face they have been executed for the purchase price. Gill v. Clark, 54 Mo. 415; Orrick v. Durham, 79 Mo. 174; Hockaday v. Lawther, 17 Mo. App. 636; Belcher v. Haddix, 44 S.W.2d 177; Hunter v. Hunter, 39 S.W.2d 365. (11) Under the facts in this case plaintiffs are not entitled to set up a charge for improvements claimed to have been made on the lands in controversy for the reasons the law requires such improvements to be made in good faith and the facts in this case show that plaintiff at all times knew of the outstanding claims. Richmond v. Ashcraft, 137 Mo. App. 202; Patten v. Thomas, 246 S.W. 60; Anderson v. Sutton, 308 Mo. 406; Staub v. Phillips, 307 Mo. 576. Parties dealing in real estate are charged with notice of title and rights of the party in possession of premises at the time of purchasing or other transactions. Ballenger v. Windes, 99 S.W.2d 158; Mo. P. L. Co. v. Thomas, 102 S.W.2d 564; Langford v. Welton, 48 S.W.2d 860. (12) The plea of the special Statute of Limitations provided in Section 9964, Revised Statutes 1929, applies only to tax suits brought under the provisions of the tax laws prior to 1877. Williams v. Sands, 251 Mo. 165; Gulley v. Waggoner, 255 Mo. 620; Bartlett v. Jauder, 97 Mo. 361; Keaton v. Hamilton, 264 Mo. 565, 175 S.W. 970. (13) The tax deeds under which plaintiff claims only purported to sell "all the right, title and interest" of the defendants named, and since they had no interest such deeds were ineffective to pay any title whatsoever. Rothenberger v. Garrett, 224 Mo. 198; Blevins v. Smith, 104 Mo. 592; Wilson v. Fisher, 172 Mo. 18; Farrar v. Patton, 20 Mo. 81; Lewis v. West, 23 Mo. App. 509; McCamant v. Patterson, 39 Mo. 111; Franklin v. Cunningham, 187 Mo. 195; Ridings v. Hamilton Savs. Bank, 219 S.W. 587; Henrick v. Patrick, 7 Sup. Ct. 157; Mo. Real Estate Loan Co. v. Gibson, 220 S.W. 675. (14) The tax sales under which plaintiff claims are void for the further reason that the price paid for these lands is so utterly inadequate as to shock the conscience of the chancellor. Mangold v. Bacon, 141 S.W. 657; State v. Nathan, 229 S.W. 177; State ex rel. v. Davidson, 286 S.W. 355; Guinan v. Donnel, 201 Mo. 202; Wertheimer-Swartz Shoe Co. v. Wyble, 170 S.W. 1131; Lange v. McIntosh, 100 S.W. 456; Black v. Banks, 327 Mo. 341, 37 S.W.2d 594.
Merrill Spitler and Ward Reeves for respondent.
(1) We filed in this case at the time of submission on September 10, 1940, a motion on behalf of respondent to dismiss the appellants' appeal and the ground therein relied on, and which was taken under submission along with the case, is that appellants failed to comply with Rules 7 and 13 of this court. We filed an additional abstract of the record and which was authorized by an order entered by this court on September 10, but did not waive the first paragraph of our motion that the abstract of the record was insufficient. The additional abstract of the record brought here shows that appellants are guilty of garbling the record, of failing to set forth the evidence either by questions and answers or in narrative form, and failed to bring here in their abstract of the record numerous exhibits, all of which are necessary to a full and complete understanding of this case, and especially of respondent's theory under the evidence. We are still relying on our motion to dismiss appellants' appeal, and ask the judgment and decision of this court thereon. Rules 7, 13, Sup. Ct.; Nickey v. Leader, 235 Mo. 30; Harrington v. Interstate Sec. Co., 57 S.W. 438; Lyvers v. Rutherford, 230 Mo. App. 921; Cory v. Interstate Sec. Co., 99 S.W.2d 861; Colorado Milling Elevator Co. v. Rolla Wholesale Gro. Co., 102 S.W.2d 681; Stratman v. Norge Co., 124 S.W.2d 572. (2) Our contention in this case is that the appellants as alleged owners of the two old notes cannot enforce them in this equitable action because they are not owners in good faith and for value. Secs. 2683, 2686, 2687, R.S. 1929; George v. Surkamp, 336 Mo. 1, 76 S.W.2d 368; Meyer Milling Co. v. Strohfeld, 4 S.W.2d 864; Guaranty Bank Trust Co. v. Bank, 294 S.W. 456; First Natl. Bank v. Johnson, 261 S.W. 705; Gate City Natl. Bank v. Bunton, 316 Mo. 1338; Williams v. Schmeltz, 14 S.W.2d 966; Wilson v. Railroad Co., 120 Mo. 45; Hoeley v. Southside Bank, 280 Mo. 336; Houtz v. Hellman, 228 Mo. 669. (3) The rule is that inadequacy of purchase price paid at tax sale is not sufficient to set aside such sale, though the proceeding be a direct attack on the deed; but a shockingly inadequate price connected with accident, surprise, hardship and unfairness as might naturally account for the inadequacy, will authorize the setting aside of the sale on the ground of inadequacy when so accompanied by such aggravated circumstances, and where to permit the sale to stand would work in such a case great hardship and unfairness. Mangold v. Bacon, 237 Mo. 496; Walters v. Hermann, 99 Mo. 529; Rogers v. Dent, 292 Mo. 576; Black v. Banks, 37 S.W.2d 598; Peterson v. Life Ins. Co., 98 S.W.2d 770. (4) It has been held that in a tax suit under the Act of 1877 (which was in force until amended in 1909) the beneficiary in a deed of trust must be made a party defendant, as he is an "owner" within the meaning of the act; otherwise, such a beneficiary will have the right to redeem the land from the tax sale. But the foreclosure purchaser under the deed of trust cannot maintain ejectment, because the holder of the tax title has a superior legal title. Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472; Myers v. Bassett, 84 Mo. 479; Cowell v. Gray, 85 Mo. 169; Allen v. McCabe, 93 Mo. 138; Paxton v. Fix, 190 S.W. 328; Williams v. Hudson, 93 Mo. 524.
Appeal from the Circuit Court of Scott County. The suit is to quiet title to a large tract of land in New Madrid County and was originally brought in that county and the venue changed.
Pending here is a motion by respondent to dismiss the appeal for failure to comply with our Rule 13, alleging that appellants' abstract does not set forth so much of the record as is necessary to a complete understanding of all the questions presented. Appellants' abstract contains 309 printed pages. It sets forth portions of the oral testimony in narrative form and portions of exhibits with, in some instances, a statement of what appellants claim such exhibits show. Respondent has filed an additional abstract containing 121 pages, setting out some of the testimony in greater detail. We think the additional abstract does help to clarify the issues, but since we believe that appellants have been unconsciously influenced by their own theory of the case and have not intentionally attempted to mislead the court, we will overrule the motion and consider the case on the merits.
We deem it unnecessary to set forth the pleadings at length. The suit is against appellants and many other known and unknown defendants. Plaintiff claims title through one Allan G. Morrison. On November 12, 1929, a portion of the land was conveyed by Himmelberger-Harrison Lumber Company to Morrison, who on the same day executed a note for $294,000, payable in one year to George W. Hobbs and secured by deed of trust on said land, one G.C. Hill being named as trustee. On the same day another tract of land was conveyed by Himmelberger-Harrison Land Investment Company to Morrison who executed a note for $49,000 payable in one year to Hobbs and secured by a similar deed of trust. These deeds and deeds of trust were promptly recorded. Other lands located in Section 2, Township, 22, Range 12, and not included in said deeds and deeds of trust were described in the petition. Plaintiff bought all the land at tax sales on January 26, 1931, the tax suits having been commenced in April, 1930, against Allan G. Morrison and wife, G.C. Hill, trustee, George W. Hobbs and other defendants. Appellant, Gee, claims to be the owner in due course of the $294,000 note and appellant, Farm Industries Inc., claims to be the owner in due course of the $49,000 note.
The pleadings make this a case in equity and we try it de novo, giving due deference to the findings of the chancellor. [Aden v. Dalton, 341 Mo. 454, 107 S.W.2d 1070.]
Voluminous briefs with copious citations have been filed by the parties, that on the part of appellants setting out no less than fourteen "points." Many of these may be conceded, and those which in our view require discussion may be reduced to the following: (1) the chancellor erred in rejecting certain evidence offered by appellant; (2) the tax sales are void for inadequacy of consideration; (3) no common source of title having been agreed on as to the lands in Section 2, and plaintiff having failed to show title to the lands in said section, he cannot recover as to such land; (4) that appellants have the right to redeem because, as the alleged assignees of the notes secured by deeds of trust, they were not made parties defendant in the tax suits.
(1) While Allan G. Morrison was on the witness stand, one of appellants' attorneys asked him several questions in an effort to prove that on the day he executed the deeds of trust he executed a deed describing the same lands. All these questions were objected to on various grounds, among others, that it was not the best evidence, that the transaction was with a person now deceased, and that no such defense was pleaded. This evidence was excluded. Then appellants' counsel offered to prove by the witness that he executed this deed to Darby Day Investment Co., and delivered it to a Mr. Downie; that the deed was never recorded and that witness had never seen it since its delivery. Counsel also stated that the evidence was proper under an amendment to the answer made during the trial. This offer of proof was rejected by the court and we think properly so. Appellants did not show diligence in attempting to locate this alleged lost deed. Nor do we find any amendment to appellants' answer which would make such deed admissible. The answer of appellant Gee is based on the claim that he is the owner of the $294,000 note and the prayer is to permit him to foreclose the deed of trust and redeem the land from the tax sale. Appellant has not pointed out, and we fail to find, where this answer was amended. Later in the trial appellant introduced an unrecorded deed from the receiver of Darby Day Investment Company to appellant Gee. But a claim that Gee owns the land in fee simple would be inconsistent with the claim set up in his answer that he has a right to redeem under the deed of trust. [41 Corpus Juris 775, sec. 869.]
Even if this offer of proof had been sustained and the evidence received, we would not be strongly impressed with its probative value. While the effort was being made to introduce this evidence one of appellants' counsel stated that the witness did not know the name of the grantee in the alleged lost deed. The offer of proof stated that the deed was delivered to one Downie. Downie was a defendant and his deposition was taken and filed in the case, but he was not asked about any deed being executed by Morrison at the time the latter executed the deeds of trust. Downie did say that Morrison conveyed the land by quitclaim to Farm Industries, Inc., but that company was not organized until 1935, nearly six years after the deeds of trust were executed. The witness, Morrison, filed an answer in the instant case, later withdrawn, in which he claimed to own the land.
(2) Appellants say the tax sales are void for inadequacy of consideration. We deem it unnecessary to review the cases cited on this point for, as we read the record, no such inadequacy of consideration is shown as will authorize us in this collateral proceeding to set aside the tax deeds. The lands involved in this case comprise about 1500 acres which, at the time of the tax sales in 1931, were for the most part cut over swamp lands unsuited for cultivation. The price paid was about twelve cents per acre, but they were sold subject to unpaid taxes for the years 1929 and 1930 amounting to more than $9,300. This makes the consideration amount to between six and seven dollars per acre. The evidence shows that, on account of the condition of the land and the financial depression then existing, the lands had no market value. Witnesses gave their opinion that the actual, as distinguished from the market, value at the time of the tax sales was from eight to ten dollars per acre.
(3) At the beginning of the trial it was stipulated that the Himmelberger-Harrison Lumber Company is the common source of title, except as to the lands described in Section 2 and the northwest quarter of Section 25.
The land in Section 25 was not included in the decree.
In his answer, appellant Gee alleged that all of said Section 2 was included in the deed of trust securing the $294,000 note under which he claims. The other appellant alleged that a portion of Section 2 is included in the deed of trust securing the $49,000 note. Appellants' abstract of the record does not set out the description of the land contained in these deeds of trust, but does say that the two together describe the land in litigation. Thus, from appellants' pleadings and abstract it appears that appellants claim all the land in litigation by virtue of the deeds of trust executed by Morrison and, as respondent claims under a tax judgment against Morrison and others, appellants are not in a very good position to claim that common source of title was not shown. Indeed, appellants do not seem to have made this point during the trial. Appellants did introduce a deed, dated January, 1930, showing a sale to E.A. Grimes Realty Company under a tax judgment against Himmelberger-Harrison Lumber Company for land in the southeast quarter and the northwest quarter of Section 2, and other lands, all of which land seems to have been included in the Morrison deeds of trust. Appellants' abstract shows that this deed was not introduced to disprove common source of title, but to show that the Grimes Company was the record owner of this land at the time of the rendition of the tax judgment under which respondent claims title. However, respondent proved that the Grimes Company conveyed this land back to the Himmelberger-Harrison Company and the latter company conveyed it to the respondent. In respondent's brief it is stated that a portion of the land in Section 2, to-wit, the west half of the southwest quarter, was not embraced in either of the conveyances to Morrison or in the deeds of trust given by him. If this land was not included in the Morrison deeds of trust, appellants make no claim to it, for they claim solely through these deeds of trust, and cannot complain as to the decree vesting title to such land in plaintiff as against other non-appealing defendants. All the rest of the land was described in the deeds of trust executed by Morrison and in the tax suits against Morrison. This shows common source of title and makes it unnecessary for us to review the cases cited on this point.
(4) Appellants say they should have the right to redeem as assignees of the notes secured by deeds of trust, because the holders of the notes at the time of the institution of the tax suit were not made parties to that suit.
Hobbs, the payee named in the notes, and Hill, the trustee named in the deeds of trust, were defendants in the tax suit, but appellants say that prior to the institution of the tax suit the notes had been assigned to Darby Day Investment Company and that such fact was known to the tax collector when he brought the suit and to the plaintiff when he purchased at the tax sale.
Appellants rely upon Section 9953, Revised Statutes 1929 (Mo. Stat. Ann., sec. 9953, p. 7995), which provides that suits for taxes shall be prosecuted "against the owner of the property, if known, and if not known, then against the last owner of record, . . ."
Appellants offered proof that, prior to the tax suit, the collector had been informed that the Darby Day Investment Company claimed to own the land and the Chicago Fidelity and Casualty Company claimed to own the $49,000 note. There was also evidence that representatives of the Darby Day Investment Company or the Chicago Fidelity and Casualty Company, or both, at various times procured statements from the collector showing the amount of taxes due on the land. However, the collector testified that it was customary to make such statements for any one who requested them without regard to whether he was the owner or not.
The ownership of these notes was put in issue by the pleadings in the instant case (suit to quiet title). In his answer defendant, Gee, alleged that he is the owner and holder in due course of the $294,000 note and that the tax collector, at the institution of the tax suit, knew that Hobbs, the payee, had transferred the note to "interests represented by the Darby Day Investment Company, a corporation . . . and the Chicago Fidelity and Casualty Co.," both of Chicago, Illinois. The defendant, Farm Industries, Inc., made similar allegations as to the ownership and assignment of the $49,000 note. These allegations were denied in plaintiff's replies.
From the record, we have been unable to definitely trace the history of these notes. It seems clear that Hobbs, the payee, never had any actual interest in them, never had possession of them and never saw them except on the last day of December, 1929, when, at the instance of Downie, he endorsed them in blank. Hobbs was cashier of the Marquette Eastern Finance Company and Downie also had some connection with that company. Morrison was a brother of Downie's wife and was employed and paid by Downie to go to Cape Girardeau, receive the deeds from the Himmelberger-Harrison companies, and execute the notes and deeds of trust. Shortly after these notes were executed, Downie, Himmelberger and others incorporated the Chicago Fidelity and Casualty Company; the Darby Day Investment Company of Chicago being used as a holding company for the Casualty Company. Himmelberger subscribed for a large block of stock in the Casualty Company and the same was issued to his agent and employee, one Pfeffer, under an agreement which was brought out in the evidence of the witness Pfeffer and identified as defendants' (appellants') Exhibit No. 1. That agreement is in the form of a letter, dated December 31, 1929, signed by Pfeffer and addressed to Darby A. Day and J.B. McCutchan, with a paragraph added signed by Day and McCutchan stating that the letter correctly sets forth the understanding. In part, the letter states: that in accordance with the understanding between yourselves (Day and McCutchan), the undersigned (Pfeffer) has executed a subscription agreement for 12320 shares of stock in the Chicago Fidelity and Casualty Company, to be paid for through transfer and delivery to said company, or its incorporators, of the mortgages described on the reverse side of the subscription agreement; that Day and McCutchan shall within sixty days furnish the cash to pay the taxes on the mortgaged land for the years 1925-1928 and all drainage taxes; that Pfeffer will then deliver a certain portion of the stock to Day and McCutchan and the rest of the stock "will be received by Himmelberger-Harrison Lumber Company in payment for the lands covered by said mortgages."
Pfeffer never had possession of any notes, was never requested to deliver stock or notes to any one and still had the stock in his possession at the trial of the title suit. Day never paid any taxes on the land in suit.
The Himmelberger-Harrison companies received no consideration from Morrison for the land which they conveyed to him. They must have intended to get their pay by selling the notes which Morrison executed and this fact is conceded at pages 2 and 3 of appellants' brief. If the notes were ever assigned to the Chicago Fidelity and Casualty Company it did not pay the agreed consideration for them. Stock in that company was issued to Pfeffer, but Day did not comply with his agreement to pay the taxes on the mortgaged land. The payment of these taxes would have increased the assets of the company and, consequently, the value of the stock to be delivered to the Himmelberger-Harrison Company, to the extent of several thousand dollars.
On the same day that Exhibit No. 1 was signed, Downie and a man named Meyers, who was an employee of Darby Day Investment Company, procured the endorsement of Hobbs on the notes and delivered them to Day at Chicago. There is some evidence that the notes at one time were pledged as security to an insurance company in Ohio. Several of the companies with which Downie was connected were placed in receivership and Downie became insolvent. Day was convicted in the Federal Court for fraudulent promotion schemes. In 1931 Downie brought suit against the Chicago Fidelity and Casualty Company and its receiver and the Darby Day Investment Company and its receiver charging that notes and deeds of trust given on Missouri lands were without consideration and void and constituted a fraudulent scheme to build up fictitious assets. Mr. E.F. Sharp, Attorney for Downie in that suit, testified that his client received several notes in compromise, among them being the $49,000 note which was delivered to Downie's wife, Mary A. Downie. Downie testified that he bought this note and other notes from the Federal Surety Company of Davenport, Iowa, for $500, the purchase money being furnished by one Callahan and the note transferred to the Farm Industries, Inc. The latter company was organized in 1935 by Downie, his wife, daughter and two or three others. W.S. Edwards testified that he and the defendant, Gee, bought the $294,000 note from the receiver of the St. Louis Can Company in 1935, paying $1500 for it. Gee did not testify. The only endorsement on this note was by the original payee, George W. Hobbs. In addition to an endorsement by Hobbs, the $49,000 note contained an endorsement from Darby Day Investment Company, by G.C. Hill, to Mary A. Downie, and one from Mary A. Downie to the order of Farm Industries, Inc. Apparently G.C. Hill is the same person who was named as trustee in the deeds of trust. These notes were long past due when acquired by defendants and were acquired with full knowledge that the land had been sold for taxes.
We cannot determine with certainty just who was the real owner of these notes at the institution and during the pendency of the tax suit. It is clear that Downie assumed complete control of the notes and that he and the corporations which he represented were content to let the apparent ownership remain in Hobbs, the straw man. Hobbs was a defendant in the tax suit as was also Hill, the trustee, and Downie, procured waivers of service from both of them in that suit. Downie and the Himmelberger-Harrison Company were defendants in the title suit and have not appealed.
Notwithstanding our statute, Section 9953, supra, requires the real owner, if known, to be made a party to a suit for taxes, and notwithstanding that the tax collector knew of the claims of the two Chicago companies, yet, under the evidence detailed above, we cannot convict the trial chancellor of error in refusing to hold the tax deeds void as to these defendants. The chancellor may well have found that the title of defendants is defective. The defendants were not content to stand on the presumption of ownership arising from their possession of the notes. They alleged and attempted to prove the manner in which they claim to have acquired title to the notes. This proof, as heretofore stated, shows that Day and McCutchan did not perform their part of the agreement upon which depended the transfer of the notes from the Himmelberger Company to the Chicago Fidelity and Casualty Company. Defendants acquired the notes after maturity and subject to any defect in the title. [Section 2680, R.S. Mo. 1929, Mo. Stat. Ann., sec. 2680, p. 669; First Natl. Bank v. Johnson (Mo. App.), 261 S.W. 705.] The Chicago Fidelity and Casualty Company, not having acquired title to the notes, was not a necessary party to the tax suit.
Under all the circumstances, the appellants are not in good position to enforce their claims in a court of equity.
"One may purchase a cause of action at law and enforce all legal rights which go with it, but the right to appeal to the conscience of a court of equity cannot be bought or sold." [Monticello Bldg. Co. v. Monticello Inv. Co., 330 Mo. 1128, 52 S.W.2d 545.]
The decree of the chancellor is hereby affirmed. All concur.