No. 42471.

247 S.W.2d 826 (1952)


Supreme Court of Missouri, Division No. 2.

April 14, 1952.

Attorney(s) appearing for the Case

W. R. J. Hughes, Ironton, for Edith L. Munday, third party defendant-appellant.

Wm. T. Powers, Piedmont, for L. M. and Myrtle Scaggs, defendants-respondents.

BARRETT, Commissioner.

In the beginning this was a simple suit in ejectment. When the suit was first instituted, on the 22nd day of September 1941, Edward Byrnes, the plaintiff in the original ejectment suit, was the record owner of 280 acres of rough land in Reynolds County. He had acquired title to the land from Edward J. and Emma E. Kennedy by deed on the 1st day of September, 1909. His land, the 280 acres, may be accurately described as all of the South one-half of Section 21, Township 29 North, Range 2 East, except forty acres in the Northeast quarter of the Southeast quarter, although that is not the way it is described in his petition. There were and have been no conveyances of record to any part of this land since Byrnes' deed in 1909 except a deed for taxes in 1943 to the appellant Edith L. Munday. In 1906 or 1907 Green Scaggs and his family "moved down there on Logan" and the immediate neighborhood became known as "Scaggs Hollow." Green Scaggs owned eighty acres of land north and west of Byrnes' 280 acre tract, which included the forty acres excepted from the above description of Byrnes' land. After about two years Green Scaggs' son-in-law, Jim Pyles, moved onto a part of the Byrnes property and cleared ten or eleven acres and cultivated it. Jim decided to leave, after a while, and Green Scaggs bought him out, one of his sons said, "he traded him a cow and a wagon I know of, and I think he gave him $75.00 in money." They talked about "papers" and there was "some writing" but no papers were ever found. The Scaggs family made rails and eventually fenced in 61.87 acres of the Byrnes' 280 acre tract, and the 61.87 acres is the tract of land now involved in this suit. About 1921 Green Scaggs gave the land, orally, to his son Marvin, one of the respondents upon this appeal, in consideration of Marvin's taking care of his father. Marvin and his bride, Myrtle, moved into a house on the land and lived there until 1942 when they moved to St. Louis County, and since then his nephews and others have been his intermittent tenants, Marvin always claiming, however, title by adverse possession. It was in these circumstances that Byrnes, as owner and entitled to possession, instituted the conventional action in ejectment against L. M. (Marvin) Scaggs. Mo.R.S.1949, §§ 524.010-524.290, V.A.M.S.

Within thirty days of the institution of the suit, on November 17, 1941, L. M. (Marvin) Scaggs filed an answer, a general denial and a very general statement of title by reason of more than thirty years' adverse possession. Thereafter, from term to term and year to year, the cause was continued upon the Reynolds County docket until the 22nd day of February 1949. In the meanwhile the Clearwater Dam project on Black River was conceived and completed. The backwaters of the lake are now within a half mile of this property and, conceivably, has something to do with the renewed interest in this litigation. On the 5th day of February 1949, L. M. Scaggs' wife, Myrtle, entered her appearance as a party defendant to the ejectment suit, and she and Marvin filed an amended answer in which they, for the first time, specifically segregated by accurate description the 61.87 acres from the 280 acre tract and, as to the 61.87 acres, denied that Byrnes, at the time of filing his petition or at any other time, was entitled to the possession of this land. Byrnes was dead when the amended answer was filed. It does not appear from the record just when he died but Marvin said, upon the eventual trial, "I have been told he has been dead for several years." In addition to the amended answers segregating the 61.87 acres and denying Byrnes' right to possession by reason of the ejectment suit, it pleaded their title to the land by reason of more than thirty-one years' adverse possession. They also pleaded that on November 1, 1943, the entire Byrnes tract of 280 acres was sold for taxes and that Edith L. Munday, the appellant here, became the purchaser at the tax sale for the sum of $212 and that she claimed some interest in the land by reason of the collector's deed, despite their title by adverse possession. They pleaded that the tax sale was void by reason of inadequacy of consideration and that they were the owners and entitled to the land and, accordingly, they prayed that the court try and determine title, and particularly that the tax deed be set aside and that they be declared the fee simple owners.

On the same day upon which Myrtle entered her appearance and the amended answer was filed, February 5, 1949, Marvin and Myrtle as defendants filed a motion in which the institution of the suit in 1941 and the various continuances were described, their claim of title by "limitation and possession," and "certain changes made in the record title," including the fact of Byrnes' death and the tax sale and title, and they asked that Byrnes' heirs be made parties and, if Edith L. Munday refused to voluntarily enter the cause, that she be made a party defendant. On February 22, 1949, the court's minutes recite that lawyers for Marvin and Myrtle Scaggs entered their appearance, the motion to make additional parties was "ratified and approved," the motion having been served upon C. M. Buford, attorney for Byrnes, on January 29, 1949. It was "Ordered, Adjudged and Decreed" that Edith L. Munday "of the City of St. Louis, be and she hereby is on motion of defendants, made a Third Party and Additional party to this action." The clerk was ordered to issue a summons to Edith L. Munday with a copy of the original petition and the amended answer attached.

It does not appear whether process was served upon Edith Munday but on March 30, 1949, she entered her appearance and filed a reply to the amended answer and a counterclaim to the suit in ejectment. In her pleading she asserted that any interest Byrnes, the former record owner, may have had and any interest that Marvin and Myrtle Scaggs may have had was destroyed by her tax deed, recorded on the 19th day of November 1943, "subject only to the right of anyone with an interest in the land bringing an action to set aside the tax sale and deed" which right had expired by reason of the applicable three year statute of limitations. V.A.M.S. Sec. 140.590. "Any suit or proceeding against the tax purchaser * * * shall be commenced within three years from the time of recording the tax deed, and not thereafter; * * *." She pleaded that by reason of the tax sale and deed that she was the owner of the land and entitled to possession and asked for $200 damages for the wrongful withholding of possession.

In August 1949, at the instigation of Marvin and Myrtle, there was publication against Byrnes' unknown heirs. The cause was then continued from time to time until June 20, 1950, at which time the parties appeared, except Edward Byrnes who, of course, did not appear and there was no appearance on his behalf, or by his heirs or anyone representing them. The Scaggses filed a reply to Edith Munday's third-party pleading and the cause was submitted to the court. At the outset of the trial the court, upon its own initiative, dismissed Byrnes' petition in ejectment "for failure to prosecute." Counsel for the Scaggses and Edith Munday then admitted the tax sale for delinquent taxes for the years 1939, 1940, 1941, and 1942, that Edith Munday was the purchaser upon a bid of $212 which left an overplus of $151.68 due Edward Byrnes, his heirs, or whoever was determined to be the owner. It was admitted, "for the purpose of the record, that the tax deed is in proper form and that there is no contention the tax deed is not regular?" "It is in regular form. There is no point on that." In its findings of fact and judgment the court found all the issues for the Scaggses, title by limitation or adverse possession and inadequacy of consideration for the tax deed, for which reason the tax sale and deed were set aside. The court found the value of the 61.87 acres to be $2000 which sum was three-fourths of the value of the 280 tract. The court found that Edith Munday purchased the 280 acre tract at the tax sale in 1943 during the pendency of the litigation and that shortly after her purchase she became aware of the Scaggs' "residence" upon the land. The court's finding of fact recites that "The evidence does not show that the Defendants Scaggs paid taxes on the 61.87 acres but it does show that they attempted to get the Assessor of Reynolds County to set off their 61.87 acres and assess it separately from the balance of the 280 acres, but they were unsuccessful." As we have said, the court found that the title to the 61.87 acres was vested in the Scaggses "unless the tax sale in 1943 to Defendant Munday has divested them of such title." There was no specific finding as to the applicability of the three year statute of limitations, V.A.M.S. § 140.590, except as the finding that Edith Munday purchased at the tax sale during the pendency of the litigation may bear upon this essential question.

Upon this appeal the principal point Edith Munday makes is that the court erred in setting aside the tax deed for the reason that the third-party action against her was not begun within three years of the recording of her tax deed and, therefore, their claim or action to set the deed aside was barred by the three year statute of limitations, V.A.M.S. § 140.590, as set forth in her pleading and motion for new trial. On the other hand, the respondents contend that the statute of limitations is not applicable to them and this proceeding against her because the statute was not effective as to these parties and tax proceedings under the Jones-Munger Act, Laws Mo. 1935, p. 425, until it was so decreed by this court on the 12th day of February, 1951, in Granger v. Barber, 361 Mo. 716, 236 S.W.2d 293. It is urged that the motion and amended answer by which Edith Munday was brought into the ejectment suit, pending since 1941, converted the suit "into an equitable suit and one to quiet title to 61.87 acres of land by respondents by adverse possession and limitations, and in possession of respondents themselves continuously since 1921 to date of motions, and proceedings as to appellant were governed by the ten year statute of limitations, and not the three year statute." The respondents also make the factitious argument that when the appellant was brought into the action "the proceedings against her were not to set aside the tax deed proper, but only so far as the tax deed effected the 61.87 acres" claimed by adverse possession. Contrary to what the trial court found and did, it is said that the proceeding against Edith Munday converted the case, as between respondents and appellant, "into a Quiet Title suit, and in equity * * * and did not seek to and was not a direct proceeding to set aside a tax deed."

It has been definitely decided, in a suit to set aside a tax deed, that the three year statute of limitations, Sec. 140.590, was in force when the Jones-Munger Act was passed in 1935, and that it is applicable to "Any suit * * * against the tax purchaser" at a tax sale under the act. Granger v. Barber, supra; Pettus v. City of St. Louis, Mo.Sup., 242 S.W.2d 723; Harrison v. Coomber Realty & Inv. Co., 359 Mo. 862, 224 S.W.2d 63. It appears here upon the face of the Scaggs' amended answer and third-party proceeding that their proceeding against Edith Munday was instituted more than three years after the recordation of her tax deed and except for one fact, also apparent upon the record, would bar the Scaggs' right to maintain this proceeding. Granger v. Barber, supra, That fact, which is the crux of this appeal and which the parties have ignored, is the court's finding and the fact that Edith Munday purchased the land in 1943 during the pendency of the litigation between Byrnes and L. M. Scaggs. We interpose here to point out that the sequence of events and the procedure in the circuit court have been painstakingly and precisely set forth because it is assumed by reason of the conduct of the parties and solely for the purposes of this appeal that the proper procedural steps were taken and that this was an appropriate third-party proceeding under the Civil Code, particularly under Sec. 507.080.

However, under that section and under that procedure, it is necessary that the third-party petition—here the amended answer—state a claim upon which relief can be granted; in other words, state a cause of action. Mo.R.S.1949, Sec. 509.050, V.A.M.S.; 1 Carr, Missouri Court Procedure, Sec. 165, p. 333; 1 Barron & Holtzoff Federal Practice & Procedure, Sec. 427, p. 865. And, as has been stated, unless the three year statute of limitations is inapplicable to the facts of this case by reason of Edith Munday's acquiring title during the pendency of the litigation, it appears upon the face of the Scaggs' pleading that their claim is barred and they are not entitled to maintain this action. Granger v. Barber, supra. The entire problem, "change in party after statute of limitations has run," is the subject of an exhaustive annotation in 8 A.L.R.2d 6. It is the general rule, where defendants are brought into an action for the first time upon the filing of an amended or supplemental pleading, that the filing of the amended pleading constitutes the commencement of the action in so far as the new defendant is concerned and the statute of limitations runs until the filing of the amended pleading, and if at that time the action is barred, the party subsequently brought in may avail himself of the plea. 8 A.L.R.2d loc.cit. 112. "The general rule is well settled that, where new parties are brought in by amendment, and by process issued thereon, the statute of limitations continues to run in their favor until thus made parties." Haney v. Thomson, 339 Mo. 505, 508, 98 S.W.2d 639, 641. In such circumstances the provisions of the Civil Code relating to the dropping or addition of parties and the amendment of pleadings "may not be read apart from applicable statutes of limitations", Daiprai v. Moberly Fuel & Transfer Co., 359 Mo. 789, 792, 223 S.W.2d 474, 476, and it is immaterial that the cause of action stated in the supplemental pleading is not a new cause of action but a continuing one merely bringing in new facts and circumstances accruing after the filing of the original petition. Brunn v. Katz Drug Co., 359 Mo. 334, 340, 221 S.W.2d 717, 718. Thus, in a suit to enforce a lien for sewer taxes instituted against the receivers of a railroad, it was held that the corporation could not be added as a party for the reason that at the time of its addition and as to it the applicable five year statute of limitations had run. Jennings Sewer Dist. v. Pitcairn, 238 Mo. App. 704, 187 S.W.2d 750. In these cases the test is whether the amendment adding or changing parties "relates back to the bringing of the suit," whether the amended or supplemental pleading "states a new cause of action or merely recites in a different form the cause of action stated in the original pleading." 8 A.L.R.2d loc.cit. Sec. 8, p. 24. In accordance with this general rule, predecessors and successors in title added as parties defendant after the statute of limitations has run against them may plead the bar of the statute. 8 A.L.R.2d Sec. 59, p. 123.

There is an exception or limitation, however, and this general rule does not apply where the successor in title acquires his interest during the pendency of the litigation. 8 A.L.R.2d Sec. 53, loc.cit. 112, 124. This limitation on the general rule has been applied in several Missouri cases. For example, in a suit to quiet title and determine interests, the plaintiff went to trial upon his amended petition which was the same as his original petition except for the addition of Karnes as a party defendant. Karnes claimed to be an innocent purchaser for value and, in addition, pleaded the ten year statute of limitations but, since it appeared that he had acquired his title through the original defendants after the suit was filed, it was held that "the date on which the original petition was filed is to be taken as the date of the commencement of the suit against him" and that the original commencement of the suit suspended the running of the statute of limitations. Matthews v. Karnes, 320 Mo. 962, 973, 9 S.W.2d 628, 631. Likewise, in Louisiana, where an action to annul a tax sale was brought against the purchaser of the land within three years from the date of the registry of the tax deed and it appeared that the purchaser had transferred the property within this period the subsequent purchaser was made a party by amendment but the three-year period had elapsed, it was held that the three-year prescription was interrupted by the institution of the original action. Winsor v. Taylor, 167 La. 169, 118 So. 876. So far as we have been able to discover there has not been a case comparable to this one, and the decisive question is whether this cause should and does fall within the limitation upon the general rule.

In the cases in which the limitation or exception to the general rule has been applied, for example in the Louisiana case and in Matthews v. Karnes, supra, the essential issues and cause of action remained the same. The new or added party in those instances not only acquired his title during the pendency of the litigation but acquired it directly from one of the parties to the litigation, and minimum requirements of justice would demand that he step into the shoes of his grantor or predecessor in title and into the pending litigation. In this case, Edith Munday's tax title was acquired while Byrnes was the record owner of the land and in that sense her title emanated from him but the sale and transfer was one enforced by the state for delinquent taxes. Scaggs' title by adverse possession, as set forth in his original answer and in their amended pleading, was, of course, a good and valid defense to Byrnes' ejectment suit, 18 Am.Jur., Sec. 57, p. 54, but title by adverse possession is not a defense to a suit for delinquent taxes, or a sufficient reason for not paying taxes, or in itself a reason for setting aside a tax sale. As between Byrnes and Scaggs the original and essential issue was ownership of the land. Edith Munday's tax deed was recorded in 1943, two years after the institution of the original suit in ejectment, but by the time she was added as a party six years later in 1949 the statute of limitations as to the recorded tax deed had run against both Byrnes and the Scaggses. The parties to the original suit of necessity had notice of the delinquent taxes for the years 1939, 1940, 1941, and 1942, the tax sale and the recorded tax deed, and, if this is an appropriate third-party proceeding, certainly had the same opportunity to make Edith Munday a party to their litigation during the period of the applicable three year statute of limitations that they had in 1949, three years after the expiration of the limited period. There is no basic reason for the application of the limitation or exception to the general rule to the circumstances of this case. As between the Scaggses and Edith Munday there was not only a complete substitution of parties but, in so far as the action to set aside the recorded tax deed is concerned, and as between the Scaggses and Edith Munday it was that kind of an action, there was the commencement of an entirely new action, and in the particular circumstances of this case there is no manifest injustice in applying the tenets of the general rule and its basic tests. 8 A.L.R.2d Sec. 8, pp. 23-25. It is not shocking, in these circumstances, to say that the new and amended action to set aside a recorded tax deed for inadequacy of consideration did not relate back either to Byrnes' ejectment suit or to the Scaggs' initial cause of action and claim of title by adverse possession, even though the tax deed was acquired during the pendency of litigation. Upon the face of the Scaggs' 1949 amended pleading, as well as upon the whole record, the three year statute of limitations governing suits against a tax purchaser and his recorded tax deed had long since elapsed and barred the right of these parties, in these circumstances, to question its validity upon the sole ground of inadequacy of consideration. Granger v. Barber, supra; Pettus v. City of St. Louis, supra. Accordingly, the judgment of the circuit court setting aside the tax deed is reversed and the cause is remanded with directions to quiet the title in accordance with the views set forth in this opinion.

WESTHUES and BOHLING, CC., concur.


The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.

All concur.


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