Myers v. McRay

• Decision Date: 28 February 1893
• Citation: 114 Mo. 377,21 S.W. 730
• Parties: MYERS v. McRAY et al.
• Court: Missouri Supreme Court

21 S.W. 730

114 Mo. 377

MYERS v. McRAY et al.

Supreme Court of Missouri, Division No. 2.

February 28, 1893.

COLLECTION OF TAXES — VERIFICATION OF PLEADING.

1. Under Laws 1877, p. 386, § 6, providing that the general laws relative to practice in civil cases shall apply to actions for the collection of delinquent taxes, and under Rev. St. 1889, § 2027, providing that in an action against unknown parties the allegations in the petition relative to the interest of such unknown parties must be verified under oath, the court acquires no jurisdiction in an action against unknown parties for the collection of delinquent taxes, where the allegations as to the interest of such parties are not so verified, and the judgment in such action, and all subsequent proceedings founded thereon, are void. Charles v. Morrow, 12 S. W. Rep. 903, 99 Mo. 638, followed.

Appeal from circuit court, Vernon county.

Ejectment by T. J. Myers against Charles McRay and others. From a judgment for defendants, plaintiff appeals. Reversed.

Scott & Boss, for appellant. Stone, Hoss & King, for respondents.

BURGESS, J.

This is an action of ejectment for the possession of the south half of lot 8 in block 1 in the city of Nevada, Vernon county. The petition is in the usual form. The answer a general denial, except that it admits that defendants are in possession. Plaintiff showed a regular chain of title from the United States government in one Joseph F. Pond, his (Pond's) death, and conveyances by deed from his heirs to plaintiff. Defendants introduced evidence tending to show that the lot was unoccupied in the year 1877, when S. S. Bigelow took actual possession of it; and that he, in 1879, traded it to one W. B. McGinnes, and that McGinnes and his grantees have been in the actual possession ever since. Defendants also claim title under a sheriff's sale for taxes, made on the 7th day of May, 1879, under judgment rendered against Joseph F. Pond's heirs in the circuit court of Vernon county on the 14th day of November, 1878, in favor of F. P. Anderson, collector, at which sale W. R. Crockett became the purchaser, and afterwards conveyed to W. H. Robinson, under whom defendants occupy the premises as his (Robinson's) tenants.

1. The case turns altogether on the judgment for delinquent or back taxes against the unknown heirs of Joseph F. Pond, by and through which judgment defendants' lessor, Robinson, claims title. If the judgment is void (and it so appears from the record) plaintiff is entitled to the possession of the lot sued for; otherwise he is not, and the judgment of the court below must be affirmed. The suit for back taxes was instituted on the 5th day of March, 1878, and by section 6 of the act of the legislature (Laws 1877, p. 386) entitled "Revenues — Delinquent Taxes," it is provided that the general laws of the state as to practice and proceedings in civil cases shall apply so far as practicable, and not contrary to the act. By section 2027, Rev. St. 1889, it is provided "that if any plaintiff shall allege in his petition, under oath, that there are, or that he verily believes there are, persons interested in the subject-matter of the petition, whose names he cannot insert therein because they are unknown to him, and shall describe the interest of such persons, and how derived, so far as his knowledge extends, the court or judge or clerk thereof in vacation shall make an order as in case of nonresidents, reciting, moreover, all allegations in relation to the interest of such unknown parties." The petition upon which the judgment was rendered is entitled "The State of Missouri, to the Use of F. P. Anderson, Collector, etc., against Joseph F. Pond Estate or Heirs, but it nowhere alleges the death of Pond; nor does it allege that the names of the heirs cannot be set out because unknown, what their interest is, or how or in what manner derived; nor was the petition sworn to. Upon the filing of the petition in the office of the clerk of the circuit court, an order of publication was issued by him which is somewhat broader in its scope than the petition. This order of notice was duly published in the Vernon County Democrat. Subsequently, however, and at the May term, 1878, of the circuit court, the order of publication was renewed and made returnable to the November term of said circuit court next thereafter, and it was also...