Opinion
September 8, 1942.
1. JUDGMENTS: Purchaser From Party to Suit Concluded. A purchaser of land involved in litigation is concluded by the judgment that his vendor does not have title when the vendor is a party to the action.
2. MORTGAGES: Taxation: Tax Suit Bars Unrecorded Noteholder. Where the owner of the mortgage note is unknown and is therefore not made a party to a suit to foreclose a tax lien he is barred by the judgment, the trustee and record holder of the note having been joined as parties.
3. MORTGAGES: Taxation: No Duty to Join Unknown Owner of Mortgage Note. The evidence does not show that the party through whom plaintiff claims owned the mortgage note or that the collector or the purchaser at the tax sales had any knowledge of such claim of ownership. There was no duty to join such alleged owner in the tax suit, and said interest was barred by the judgment. Plaintiff acquired no interest through purchase from such alleged owner.
4. JUDGMENTS: Appeal and Error: Same Ruling as in Similar Prior Case. Appellants make the same contention which was ruled against them by this court in a prior action involving the same land and the same evidence. The same conclusion is reached as in the prior case.
5. TAXATION: Mortgages: No Title Basis to Attack Tax Sale. Appellant mortgagees have not shown that they or those under whom they claim had any title at the time of the tax sale, and so have no basis to attack the sale.
6. TAXATION: Party Attacking Tax Deed Must Rely on Strength of Own Title. A plaintiff in an action to cancel a tax deed must recover if at all on the strength of his own title and not on any defect in that of his adversary.
7. VENDOR AND PURCHASER: Vendor's Lien Waived. A vendor's lien will be considered waived where a security is taken upon the land either for the whole or part of the unpaid purchase money, unless there is an express agreement that the implied lien shall be retained.
Appeal from Scott Circuit Court. — Hon. J.C. McDowell, Judge.
AFFIRMED.
C.E. Rendlen, F.D. Wilkins, C.M. Buck and Edward F. Sharp for appellants.
(1) The tax deed under which respondents claim title is void. The known owner of the land was not made a party to the tax suit. (a) This court has recently reaffirmed the doctrine always held that unless the real and known owner of property is made a party defendant to the tax suit, the court acquires no jurisdiction and the judgment is absolutely void and does not preclude or cut lien or mortgage holders even if they are parties to the tax suit. Davis v. Stephens, 124 S.W.2d 1132; Mo. Real Estate Loan Co. v. Gibson, 282 Mo. 75. (b) The tax deeds under which defendants claim only purported to sell "all the right, title and interest" of the defendants named in tax suits, and since they had no interest, such deeds were ineffective to pass any title whatsoever. Rothenberger v. Garrett, 224 Mo. 198; Blevins v. Smith, 104 Mo. l.c. 592; Wilson v. Fisher, 172 Mo. l.c. 18; Farrar v. Patton, 20 Mo. 81; Lewis v. West, 23 Mo. App. l.c. 509; McCamant v. Patterson, 39 Mo. l.c. 111; Franklin v. Cunningham, 187 Mo. l.c. 195; Ridings v. Hamilton Savs. Bank, 219 S.W. 587; Henrick v. Patrick, 7 Sup. Ct. l.c. 157; Mo. Real Estate Loan Co. v. Gibson, 220 S.W. 675, headnote 1. (c) The purchaser of land at a tax sale is a mere volunteer and only acquires such title as the defendants in the tax suit had, provided the actual owner had been made a party in the tax suit and the court had jurisdiction of the res. Milner v. Shipley, 94 Mo. 106; Graves v. Ewart, 99 Mo. 13; Falvery v. Hicks, 315 Mo. l.c. 451; Smith v. Kiene, 231 Mo. l.c. 227; Rothenberger v. Garrett, 224 Mo. l.c. 198. (2) The tax statute (Sec. 9953, R.S. 1929) directed that all tax suits be "against the owner, if known, and if not known then against the last owner of record," etc. Where one holds title or interest which is not required to be placed of record, as the assignee of a note secured by deed of trust and they are not made parties to the tax suit, their interests are not bound by the tax suit and judgment and their beneficial interest in the real estate was not divested by the sale under such judgment and such does not foreclose the deed of trust securing their debt. Likewise, where the purchaser at such a tax sale has knowledge or such information as would place a prudent man on inquiry as to the fact of an outstanding title or interest, not of record, and the holder or owner of which is not made a party in the tax suit, such outstanding interest is not foreclosed or cut out or destroyed by the tax sale. 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. (a) 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. Bullock v. Gee, 148 S.W.2d 565; Stafford v. Fizer, 82 Mo. l.c. 399; Allen v. McCabe, 93 Mo. l.c. 144; Boatmen's Savs. Bank v. Grewe, 84 Mo. 477; Giraldin v. Howard, 103 Mo. l.c. 45; Landau v. Cattrill, 159 Mo. 315; State ex rel. v. Reynolds, 213 S.W. l.c. 69; Barrie v. Whitton, 13 S.W.2d 47; Hider v. Sharp, 257 S.W. 112; Little River Drain. Dist. v. Sheppard, 7 S.W.2d 1014; Mo. Real Estate Loan Co. v. Gibson, 220 S.W. 674, 282 Mo. 75; Bell v. Ham, 188 Mo. App. 71, 173 S.W. 744; Williams v. Hudson, 93 Mo. 527; 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. l.c. 737; Stuart v. Ramsey, 196 Mo. l.c. 417; Construction Co. v. Ice Rink Co., 242 Mo. l.c. 253; Adams v. Gossom, 228 Mo. 566. (b) Proceedings for the collection of taxes under which respondents claim were governed by Sections 9952 and 9953, R.S. 1929, including service by publication against unknown and nonresident defendants, and makes the general laws as to practice and proceedings in civil actions applicable to such tax suits. Secs. 9952, 9953, R.S. 1929. (3) Neither of the Himmelberger Companies were made parties to the tax suits, nor were the assignees or holders through Hobbs made parties. (a) Defendants 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 owner of the notes because the recorded deed of trust securing them show they were 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 359. (b) Since respondents, if they acquired anything at all at the tax sale, could only have acquired the interest of Morrison, he is estopped from questioning the validity of the lien of the notes given for the purchase price unless he first surrenders the possession of the land. Crum v. Wright, 97 Mo. 13; Smith v. Busby, 15 Mo. 383; Wright v. Lewis, 19 S.W.2d 289; Jamison v. Van Auken, 210 S.W. 419; Wought v. Williams, 119 S.W.2d l.c. 227. (4) 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. 772; Brown v. Baldwin, 121 Mo. 106; Mason v. Black, 87 Mo. l.c. 342; Speck v. Riggin, 40 Mo. 405; Vaughn v. Tracey, 22 Mo. 415; Sec. 3040, R.S. 1929; Heintz v. Moore, 346 Mo. 226, 151 S.W. 449. (a) 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) Assignee of a note given for the purchase price of land for which a general warranty deed had been made by the vendor may enforce a vendor's lien against the land in the hand of the vendee or his assignees the same as the vendor himself could. Dixon v. Fisher, 137 Mo. l.c. 358. (a) Where the note and mortgage given for the purchase price of land are both declared void by the court, the court gives the holder of the note a vendor's lien. Barnhart v. Little, 185 S.W. 174; Furnish v. Pryer, 282 S.W. 546. (6) Darby A. Day Investment Company had title to this land by unrecorded and lost deed at time tax suit was brought. (a) The plaintiff should have been permitted to make proof of lost deed from Allan G. Morrison to Darby Day Investment Company. The offer of proof included every element necessary for the admission of secondary evidence of the lost deed. It was also shown that the deed was beyond the jurisdiction of the court. Montgomery v. Dormer, 181 Mo. 5, 79 S.W. 913; 2 Jones, Commentaries on Evidence (2 Ed.), secs. 812, 828, pp. 1485, 1514, 1515; State v. Meyers, 259 Mo. 306; Brown v. Wood, 19 Mo. 475; Radford v. Horton, 207 Mo. App. 601; L.R.A. 1917D (M), 532; Atwell v. Lynch, 39 Mo. 519; 22 C.J., p. 1042; 22 C.J., p. 1043, sec. 1341; Brooks v. Roberts, 281 Mo. l.c. 561. (b) Darby Day Investment Company were in actual possession at and prior to date tax suits were brought. 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; Missouri P. L. Co. v. Thomas, 102 S.W.2d 564; Langford v. Welton, 48 S.W.2d 860. (7) The certified copies of the records of the examinations made of insurance companies by the proper authorities of Illinois and Ohio were properly in evidence and should have been considered by the court. They show that Hobbs, payee in the two notes involved herein, secured by the deeds of trust herein, did not have possession, control or ownership of them when the tax suits were filed or determined, and upon which tax suits respondents' title rests. 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. Paving Co. v. O'Brien, 128 Mo. App. l.c. 284; 53 C.J., pp. 604-5. (8) The period during which the injunction was kept in force by Bullock against the trustee from foreclosing the $294,000 deed of trust (being over two years) cannot be deemed any portion of time in computing the Statute of Limitations against claims upon such deed of trust. Sec. 1029, R.S. 1939; Cordia v. Matthes, 338 Mo. 308, 90 S.W.2d 101. (a) In addition, the courts hold that a suit brought under the provisions of a suit to quiet title interrupts the running of the Statute of Limitations, even so far as adverse possession is concerned. Matthews v. Karnes, 320 Mo. 962, 9 S.W.2d 628. (b) The opinion in the former suit of Bullock v. Gee was handed down December 11, 1940. Rehearing denied March 13, 1941, and the present suit was filed within three years from that date and is in effect a bill of review and in compliance with the statute which provides that judgments in quiet title suits may be set aside by any defendant or other person having an interest in the subject matter, and not personally served, and not having answered within three years from the date of such judgment. The Himmelberger-Harrison Lumber Company was not made a party to the former suit by name and did not answer and has a right to present a bill of review, which in effect the present suit is. Chilton v. Cady, 250 S.W. 403; Marshall v. Hill, 246 Mo. 1. (9) The judgment in the case of Gee v. Bullock et al., pleaded and relied upon by defendants, does not operate as an estoppel in the case at bar, and is not res adjudicata against the plaintiff in this action. In order that a judgment may operate as a bar to the prosecution of a second action and conclude parties and privies as to all matters which might have been litigated in the first action there must be: (a) identity of the subject matter of the suit; (b) identity of the cause of action; (c) identity of the persons and parties to the action; (d) identity of the capacity in which the parties appear as litigants, or as it is sometimes expressed, identity of the quality of the persons for or against whom the claim is made. In the present suit Gee brings action on an additional after-acquired title and rights in conformity with the opinion of the court in the prior case, which held Gee did not there have title to the rights and liens he now asserts; that they belonged to the Himmelberger Companies. 15 R.C.L., pp. 952, 953; Mo. K. T. Ry. Co. v. American Surety Co., 291 Mo. 92; Natl. Cypress Pole Piling Co. v. Hemphill Lbr. Co., 31 S.W.2d 1059; State ex rel. Natl. Subway v. St. Louis, 145 Mo. 551; Dillard v. Owens, 122 S.W.2d 76; 34 C.J., pp. 943, 960, 973-4; Gajan v. Patout, 135 La. 156, 65 So. 17; Freeman on Judgments (5 Ed.), p. 1507, secs. 714, 1508.
Merrell Spitler and Ward Reeves for respondents.
(1) This case presents a clear and unquestioned attempt of the appellant, Everett B. Gee, to relitigate the issues tried in the former suit of Bullock v. E.B. Gee Land Company et al. These issues were definitely and conclusively settled as between these parties by the former judgment, and are now res adjudicata. Bushman v. Barlow, 321 Mo. 1052; Coal Co. v. Dent, 308 Mo. 547; State v. Hughes, 148 S.W.2d 576; State v. Fidelity Deposit Co., 317 Mo. 1078; Cooper v. Cook, 148 S.W.2d 512; Cordia v. Matthes, 130 S.W.2d 597; Custer v. Kroeger, 313 Mo. 130; Johnson Timber Realty Co. v. Belt, 329 Mo. 515; In re Guardianship of Angela McMenamy, 307 Mo. 98; Natl. Bank of Commerce v. Maryland Cas. Co., 307 Mo. 417; Hutchinson v. Patterson, 226 Mo. 174; Roth Tool Co. v. Champ Spring Co., 146 Mo. App. 1. (2) The fact that the deed of trust shows that the notes were given for the purchase price, the vendor's lien was waived by the taking of the note so secured by the deed of trust. Nixon v. Knollenberg, 92 Mo. App. 20; Briscoe v. Callahan, 77 Mo. 134; Edmonson v. Joy, 211 S.W. 137; Causer v. Wilmoth, 142 S.W.2d 777; Spence v. Palmer, 115 Mo. App. 76; Furnish v. Pryer, 282 S.W. 546; Jones v. Rush, 156 Mo. 364; Winn v. Lippincott Inv. Co., 125 Mo. 528; Hunter v. Hunter, 327 Mo. 817, 39 S.W.2d 359; 66 C.J., pp. 1210, 1219, secs. 1073, 1081. (3) By reference to the records, briefs and files in the former case, of which this court will take judicial notice, it will be apparent to this court that every issue raised in the present case was raised and determined adversely to Gee in the former case, except the single issue on alleged acquirement by him on April 3, 1941, of an assignment from the Himmelberger-Harrison Lumber Company of its alleged interest in the $294,000 note and the alleged vendor's lien. Bushman v. Barlow, 321 Mo. 1052; Custer v. Kroeger, 313 Mo. 130. (4) As repeatedly held by this court all issues which could have properly been raised in the former quiet title suit are res adjudicata and cannot be raised again in this suit. Every issue, particularly that respecting the alleged lost deed was finally settled in the former suit and is res adjudicata. Bushman v. Barlow, 321 Mo. 1052; Bullock v. Gee Land Co., 148 S.W.2d 565. (5) The claim that Gee owns the land in fee simple title is inconsistent with the claim that he has a right to redeem under the deed of trust or to enforce a vendor's lien. Besides, the enforcement of alleged liens is the only relief sought in appellant's petition, as shown at pages 26 and 27 of the abstract of the record. Bullock v. Gee Land Co., 148 S.W.2d 565; Petrie v. Reynolds, 219 S.W. 934; McGehee v. Garringer, 284 Mo. 465; Citizens Trust Co. v. Going, 288 Mo. 505; Curry v. Lafon, 133 Mo. App. 163; 41 C.J. 775, sec. 869. (6) The Statute of Limitations applies to all civil actions, whether actions at laws or suits in equity. Ludwig v. Scott, 65 S.W.2d 1034; Branner v. Klaber, 330 Mo. 306; Kober v. Kober, 324 Mo. 379. (7) The cause of action on the vendor's lien having accrued more than 10 years before the Himmelberger-Harrison Lumber Co. assigned it, and more than 10 years before an action was brought thereon, the same is barred by the Statute of Limitations of 10 years. Zoll v. Carnahan, 83 Mo. 35; Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 169; Duncan v. Railroad, 22 Mo. App. 614; Hunter v. Hunter, 50 Mo. 445; Zeitinger v. Annuity Realty Co., 28 S.W.2d 1030; Hudson v. Cahoon, 193 Mo. 547. (8) The note, being barred by the Statute of Limitations, this action to redeem from the tax sales and foreclose the deed of trust is likewise barred by the 10-year Statute of Limitations. Sec. 1017, R.S. 1939. (9) A third party, a stranger to the prior action, cannot invoke the prior suit or judgment as tolling the Statute of Limitations. Tiffin v. Leabo, 52 Mo. 49; Claflin Co. v. Middlesex Banking Co., 113 F. 958; Midland Oil Co. v. Moore, 2 F.2d 34; 37 C.J. 1046, sec. 457. (10) In the original suit to quiet title the Himmelberger-Harrison Lumber Company was in no way named or designated as a defendant, and since only defendants who are made parties and constructively served can have their petition for review, the appellant in this case, who claims now through Himmelberger-Harrison Lumber Company, cannot maintain a petition for review of the judgment. Ewart v. Peniston, 233 Mo. 695; Brooks v. McCray, 145 S.W.2d 985; Dillbeck v. Johnson, 129 S.W.2d 885. (11) Another reason why the petition in the case at bar cannot be considered as one for a review is that, as shown by the abstract of the record, the petition was not verified by affidavit of the defendant or his attorney, as expressly required by the statute. Sec. 1250, R.S. 1939; Osage Inv. Co. v. Sigrist, 298 Mo. 139; Chilton v. Cady, 250 S.W. 403. (12) After appellant acquired the note in September, 1935, he foreclosed on some of the lands in the deed of trust which secured the note. Yet the Himmelberger-Harrison Lumber Company asserted no claim or right to the note, but acquiesced in the claim of ownership asserted and exercised by Gee. And now after the lapse of more than 11 years, though that company was not in possession of the note and made no actual endorsement of same and never at any time had possession of it, and though it never at any time claimed any title to the note, it attempts to assign the note by an independent paper writing to Gee, though the latter was in undisturbed possession as endorsee and owner, even though his title was defective and subject to equitable defenses. Under these facts and circumstances the Himmelberger-Harrison Lumber Co. and the appellant, who holds under it by this alleged assignment, are precluded by laches and estoppel from asserting any equitable right of redemption under the note. This is a stale claim which is barred both by laches and limitations. Paxton v. Fix, 190 S.W. 328; Shelton v. Horrell, 232 Mo. 359; Marshall v. Hill, 246 Mo. 1; Kline v. Vogel, 90 Mo. 239; Kelly v. Hurt, 74 Mo. 561; Bliss v. Prichard, 67 Mo. 181. (13) Under the facts in this case which are briefly set forth in the foregoing paragraph, the doctrine of estoppel would likewise prevent any relief to the Himmelberger-Harrison Lumber Company or to appellant as its assignee. Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 311. (14) All the circumstances show beyond all doubt that Gee attempted by this last alleged purchase of the note, just as he had in the previous purchase, to acquire "the right to appeal to the conscience of a court of equity," which this court held "cannot be bought or sold." Bullock v. Gee Land Co., 148 S.W. 565; Monticello Bldg. Co. v. Monticello Inv. Co., 330 Mo. 1128; Wilson v. Railroad, 120 Mo. 45.
This is a suit in equity to set aside tax deeds to land in New Madrid County; to determine plaintiffs' interest in said land; to decree that plaintiffs are owners of a lien on said land; and for the foreclosure of such lien.
The chancellor found the tax sales were valid. He found that plaintiffs had no interest in the land or any lien against it. He found there was no equity in plaintiffs' petition and plaintiffs were not entitled to equitable relief. He decreed title in the defendants with the exception of defendant Morrison who was only a nominal party. From the decree plaintiffs appealed. It will be simpler to refer to the plaintiffs collectively as Gee.
The land was owned by two companies. Both companies conveyed it to the same grantee. Part of the land was owned by the Himmelberger-Harrison Lumber Company, hereafter referred to as the lumber company. On November 12, 1929, the lumber company conveyed its land to Allan G. Morrison. On the same day Morrison executed a deed of trust on the land to G.C. Hill as trustee, to secure his note, payable to George W. Hobbs, for $294,000. The balance of the land was owned by the Himmelberger-Harrison Land Investment Company. We will refer to this one as the land company. On the same day the land company conveyed its land also to Morrison. He executed a deed of trust on the land to the same parties, G.C. Hill as trustee to secure his note, payable to George W. Hobbs, for $49,000.
Tax suits involving all the land were instituted by the State in 1930. Morrison, Hill, as trustee, and Hobbs, the record owners, were made parties defendant. Judgments for delinquent taxes were had. On execution the land was sold and ultimately acquired by defendant Bullock.
In 1936, after improving the land, Bullock brought suit to quiet his title. Gee, plaintiff here, was a defendant in that suit. The chancellor in that suit found in favor of Bullock and against Gee. Bullock was decreed to be the owner in fee simple. The decree found Gee had no interest, lien or title. On appeal to this court the decree was affirmed. [See Bullock v. E.B. Gee Land Co., 347 Mo. 721, 148 S.W.2d 565.] [283] With one exception, Gee raised the same issues by his answer and cross bill in the Bullock case as he is now raising here in his petition. The land in the Bullock case is the identical land involved here.
In the Bullock case Gee contended the tax sales were invalid because the tax suits did not include as parties defendant the actual and known owner of the land and the actual and known holders of the notes and deeds of trust at the time of the suit. He claimed that the Darby-Day Investment Company, a Chicago company, was the actual owner of the land at the time of the tax suits and the notes were held by representatives of that company. He also claimed he later acquired the notes and deeds of trust. He asked that his liens under the deeds of trust be established.
This court found there was no proof of the Darby-Day Company's ownership of the land and held that evidence attempting to establish a lost deed to that company was properly excluded. As to the notes, Gee did not stand on the presumption of ownership arising from his possession of them. The question of ownership was an issue. He attempted to prove how he had acquired title to the notes. The notes had gone through a tortuous process of transfers. Hobbs, the payee, apparently had no actual interest in the notes and never had possession of them except to endorse them in blank. Presumably, he was acting as a straw man for the lumber and land companies. While we found that these companies had the notes transferred under an agreement which was never kept, yet we held that the real owner of the notes at the time of the tax suits could not be determined with certainty from the evidence in the case. We determined that the equities were not with Gee.
After the decision was handed down Gee obtained assignments from the lumber and land companies of any interest those companies had in the notes and quitclaim deeds for any interest in the lands. He then filed this suit.
The land here involved, we again point out, is the identical land which was the subject of the Bullock case. All the issues but one are the same. The principal parties are the same. While Gee attempts to litigate again a number of the issues disposed of by the Bullock case, he concedes "that the present suit is based entirely upon an after-acquired title by Gee from the Himmelberger companies."
However, we may consider the interest Gee acquired from the lumber company only. Gee could acquire nothing from the land company because it was a defendant in the Bullock case. Any interest the land company may have had was expressly wiped out by the decree in that case which vested title in Bullock free of any claims of the land company. Consequently the only matter for determination in this suit is the interest or claim Gee acquired from the lumber company.
Gee argues that our opinion in the Bullock case holds that the lumber company never lost title to the $294,000 note, the only note now involved in this suit. We did not hold this. In considering Gee's claim to be the holder of this note we showed the consideration for the agreement under which it was originally transferred had not been paid. We did this by way of argument in demonstrating the evidence did not sustain Gee's claim to own the note. We did not hold or decide that the lumber company was the owner of the note at the time of the tax suits. We held, to repeat, we could not determine who was the owner of the note at such time.
The instant case was tried on substantially the same evidence as the Bullock case. As a matter of fact the bill of exceptions and the exhibits in that case were introduced in this case. In addition, the assignments and quitclaim deed from the lumber and land companies were introduced and there was some slight new testimony. But we find no evidence whatsoever tending to show that the lumber company owned the note either at the time of the tax suits or at the time of the assignment to Gee.
The statute in force at the time of the tax suits permitted a tax suit to be brought against the record owner of the land unless the actual owner was known. This court has held that the beneficiary and trustee of a deed of trust on the land are also necessary parties to a tax suit if the lien of the deed of trust is to be concluded. But such decisions must be considered in the light of the statute. Section 9953, R.S. 1929, the pertinent statute, provided that a tax suit should be prosecuted "against the owner of the property, if known, and if not known, then against the last owner of record as shown by the county or city records at the time the suit was brought."
[284] This court only recently passed for the first time on the effect of a tax sale where the actual owner of a note and deed of trust on the property was unknown, and therefore not a party to the tax suit. Besides the owner, the trustee of the deed of trust and the beneficiary thereof as disclosed by the record were made parties to that suit. We upheld the sale. We decided that where the owner of the note was unknown and therefore not a party to the tax suit, he was concluded by the sale and judgment in the suit brought against the record owners. We pointed out that if the holder of a note desired the record to show his ownership so he would be made a party to a tax suit he could have the transfer of the deed of trust to him placed of record. [Edwards Land Co. v. Richards, 349 Mo. 758, 163 S.W.2d 581.] That decision rules this case.
The evidence before us does not show the lumber company owned the note, or that the collector or the purchaser at the tax sales had any knowledge that the lumber company claimed to own it. Therefore, the collector had no duty to join it as a party in the tax suits. If the lumber company was the owner of the note, such fact was unknown. Therefore, any right it may have had was concluded by the judgment and sale. Accordingly, Gee acquired no lien against the land through the assignment of the note from the lumber company.
Gee contends that the tax sale was void also on the ground the Darby-Day Company was known to be the owner of the land and was not made a party to the tax suit. He made this same contention in the Bullock case when he claimed he was a subsequent grantee of the Darby-Day Company. The testimony was conflicting. We ruled the evidence was not sufficient to show title in the Darby-Day Company and deferred to the ruling of the chancellor. We decided that evidence which was offered on this issue was properly excluded. We pointed out that even had it been admitted it did not sustain the issue. Considering the same evidence we are forced to the same conclusion.
Gee's purpose for renewing this contention must be on the theory that if the tax sales are void for such reason, his lien against the land as present owner of the note is still enforceable. But he has not shown either that the lumber company was the owner of the note at the time of the sale or acquired the rights of the one who was the owner at such time. So his argument collapses. Furthermore, he is not in a position to raise such an issue. The general rule is settled that one attacking a tax deed must show that he or those under whom he claims had some title to the property at the time of the sale. [26 R.C.L., Taxation, sec. 402.] As neither Gee nor those under whom he claims have been shown to have any interest in the property at such time, it matters not to Gee what was or was not done in the tax suit.
The rule usually followed in suits to quiet title has also been followed in suits to cancel a tax deed. A plaintiff must recover if at all on the strength of his own title and not on any defect in that of his adversary. [Anderson v. Daugherty, 169 Ky. 308, 183 S.W. 545; Day v. Benesh, 104 Fla. 58, 139 So. 448; Medaris v. Tracey, 170 Okla. 113, 39 P.2d 30.]
Gee further claims to have acquired a vendor's lien on the land through the assignment from the lumber company. This is on the theory that the deed of trust showed on its face that the indebtedness was partly for purchase money. This claim also collapses under our holding the assignment transferred no interest in the land to Gee even had there been a vendor's lien in the first place. But there was no vendor's lien. It is the rule in this State that a vendor's lien will be considered waived where a security is taken upon the land either for the whole or part of the unpaid purchase money, unless there is an express agreement that the implied lien shall be retained. [Winner v. Lippincott Investment Co., 125 Mo. 528, 28 S.W. 998.] There was no vendor's lien retained.
The decree was for the proper party and is affirmed. All concur.