Fleming v. Tatum
| Decision Date | 28 February 1911 |
| Citation | 135 S.W. 61,232 Mo. 678 |
| Parties | LUCY T. FLEMING, Appellant, v. GEORGE TATUM et al |
| Court | Missouri Supreme Court |
Appeal from Newton Circuit Court. -- Hon. F. C. Johnston, Judge.
Reversed and remanded (with directions).
Hamlin & Seawell for appellant.
(1) The petition must contain the names of the parties plaintiff and defendant. R. S. 1899, sec. 592. The petition does not definitely state any one as defendant. The title being a part of the petition must be considered with the entire petition and where a pleading is in the alternative, each of the alternatives must state a legal cause of action, or defence and if either of the statements is insufficient in law the entire plea is defective. Hewitt v. Truitt, 23 Mo.App. 443. If David Fleming was dead at the time the tax suit was filed, then the order of publication should have been to the "unknown heirs or devisees." If he was dead or alive, the notice of publication was not service on the heirs or devisees. R. S. 1899, sec. 575. The collector in the tax suit should have "declared his belief that Fleming was either dead or living, and his ignorance whether it be one or the other." R. S. 1899, sec. 626. The allegations, "if dead, or if living his heirs or devisees," contradict each other in the petition and in the order of publication. And for that reason there was no allegation in the petition or affidavit filed in the case which authorized, and upon which to base, the order of publication. Hinkle v. Lovelace, 204 Mo. 220. An affidavit is insufficient which states in the alternative the grounds on which relief is sought. Hinkle v Lovelace, 204 Mo. 220; 2 Cyc. 22, par. 3. The alternative allegation was a jurisdictional matter. Hinkle v. Lovelace, supra. Neither the petition nor order of publication alleges the death of David Fleming, nor the interest of the heirs or devisees, nor how or in what manner derived, all of which must appear in the petition and in the order of publication to confer jurisdiction upon the court. Meyers v. McRay, 114 Mo. 377. Before the court had jurisdiction or the clerk authority to issue the order of publication, the petition should have affirmatively averred that David Fleming was either dead or living. They nowhere state the belief of plaintiff as to either. If David Fleming was living and was a non-resident, then the petition need not be verified, but if he was dead, and left unknown heirs or devisees, the petition must be verified. Elting v. Gould, 96 Mo. 535; Meyers v. McRay, 11 Mo. 383; Rohrer v. Oder, 124 Mo. 24. If the judgment in the tax suit was rendered upon a void publication, and the petition did not contain jurisdictional facts sufficient to confer jurisdiction upon the court, then the judgment was void, and this action can be maintained. Stark v. Kirchgraber, 186 Mo. 633; Davis v. Montgomery, 205 Mo. 283. (2) Where constructive service is authorized instead of personal, there must be a strict compliance with the statutory requirement. Meyers v. McRay, 114 Mo. 377; Parker v. Baton, 172 Mo. 85; Hinkle v. Lovelace, 204 Mo. 208. The record shows that the petition in the tax suit was filed on the 8th day of June, 1900, and the clerk made an order of record directing an order of publication for the defendants on the 7th day of June. He had no authority to make said order because a petition had not been filed in his office on June 7th. R. S. 1899, sec. 575; Stewart v. Allison, 150 Mo. 346. There are three sections under our code of civil procedure authorizing service by publication of notice of the commencement of the suit. R. S. 1899, secs. 575, 577 and 580. The publication in the tax suit endeavored to cover the requirements of sections 575 and 580, but the requirements of each section are in conflict with the other. Section 575, R. S. 1899, applies to living non-resident defendants, section 580 applies to unknown defendants. If the petition and order of publication in the tax suit had stated that David Fleming was dead, and had left unknown heirs or devisees, and set out their interest and how derived, as prescribed by the statute, and was verified, then the court would probably have had jurisdiction over the res and this plaintiff. The clerk in vacation must have the petition on file in his office, containing facts sufficient to confer jurisdiction, at the time he makes the order of publication. In this case the order of publication recites that it was made on the 7th day of June, 1900, and the petition was filed on the 8th day of June, 1900; therefore there was no petition on file at the time the order was made. "Upon the filing of such petition or affidavit, the order of publication must be made." R. S. 1899, sec. 575. (3) The statute requires the publication to be published once a week for four weeks successively. R. S. 1899, sec. 581. The notice was not published four successive weeks; it was published as follows: June 8th, 22d, 23d, 29th, 1900, being only twenty-one days. "When the statute requires four weeks' publication of such notices, it does not mean twenty-four days, or any less number than twenty-eight." Young v. Downey, 150 Mo. 330; State v. Brown, 130 Mo.App. 214.
O. R. Puckett and Benton & Ruark for respondents.
(1) The tax petition and affidavit used the exact language of the statute, to-wit: "He verily believes there are persons interested in the subject-matter of this suit whose names cannot be inserted herein, because they are unknown to him, and that the interests of such persons, and how derived, so far as the knowledge of affiant extends, are truly described as follows," etc. And it is stated under plaintiff's oath that the petition "describes the interests of the unknown persons who are interested in the subject-matter, and how their interests were derived, so far as the knowledge of affiant extends." There are no decisions under which the petition and affidavit in the tax suit have been held bad. The question must be settled by Sec. 580, R. S. 1899. The tax suit was against the unknown owners of the land described. This is expressly authorized by the statute; the description of the interests of the unknown owners, how derived, etc., is not required to be given more fully than is known, for obvious reasons, and in this case plaintiff states, by exclusion and necessary implication, that plaintiff does not know whether David Fleming be living or dead, and if dead, whether he died testate or intestate, or who or how many were his heirs or devisees. The law presumes plaintiff knew that if David Fleming was dead, a judgment against him would be a nullity, and that if living, he had no heirs or devisees. That he was the record owner of the land at the time the tax suit was brought is not denied, and that is all the information plaintiff had. The appellant comes and identifies herself as a devisee of David Fleming. She can only raise the question as to whether she had constructive notice; not whether David Fleming, had he been living when the suit was brought, had constructive service under the allegation that he was a non-resident of the State, or, if he had previously died intestate, whether his heirs had constructive notice as the "unknown heirs of David Fleming." This does not concern appellant. Had appellant appeared on the trial of the tax suit and identified herself as a devisee of David Fleming, unknown at the time the suit was brought, as here admitted by her, a plea of misjoinder might have been successfully interposed, or that all other persons named and described were unnecessary parties to a complete determination of the cause. The joinder of an unnecessary party or an improper party is held to be error; but held not to be an error affecting the substantial rights of the parties, and so far from being void, that no judgment shall be reversed by reason of such error or defect. Mann v. Doerr, 222 Mo. 15; R. S. 1899, secs. 659 and 865. Defect of parties defendant is waived by default or when not raised by demurrer or answer. R. S. 1899, sec. 602; Scott Co. v. Hombs, 127 Mo. 392; Hudson v. Wright, 204 Mo. 424. "Nor was the jurisdiction of the court affected by the fact that a deceased former owner, who by a recorded deed had conveyed the property to another, was made a defendant." Sanzenbacher v. Santhuff, 220 Mo. 283. A judgment against an unknown devisee is good. Wall v. Holladay-Klotz Land and Lumber Co., 175 Mo. 406. A tax deed is prima facie evidence of title. R. S. 1899, sec. 9305. A tax deed, conveying the interest of unknown parties, is valid on its face. Wall v. Land Co., 175 Mo. 406. A tax deed, valid on its face, is unassailable, without proof that it has been of record for less than three years. R. S. 1909, sec. 11506.
This is a suit to quiet title under section 650, Revised Statutes 1899. The land described in the petition is the north half of section 30, township 23, range 33, but the land in dispute is really only the northwest quarter of that section, that at least is the only part of the section to which the defendants introduced any proof of title. That mistake runs through the pleadings and final judgment which decrees absolute title in defendant Griffin to the whole north half of that section. The mistake is plain on the face of the record.
The defendants' title arises out of a sheriff's sale under a tax judgment. The petition under which the tax judgment was rendered ran against the north half of the section and the judgment condemned the whole to be sold, but at the sale, the sheriff, as in duty bound, offered the land in the small legal subdivisions of 40 acres each, and when he had sold four forties he realized enough money to pay the taxes and costs on the whole half section, therefore he did not sell the northeast quarter, but that remained to...
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