Mosely v. Reily

• Decision Date: 22 December 1894
• Parties: Mosely v. Reily, Appellant
• Court: Missouri Supreme Court

28 S.W. 895

126 Mo. 124

Mosely v. Reily, Appellant

Supreme Court of Missouri, First Division

December 22, 1894

Appeal from Oregon Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed.

""Olden & Orr for appellant.

(1) The putting of the sheriff's deed on record did not place the defendant in the actual or constructive possession, and ejectment would not lie against him. ""Childers v Schantz, 25 S.W. 209; ""Shaw v. Tracy, 95 Mo. 531. (2) The sheriff's deed based on judgment against C. T Clements, though by publication, was sufficient to pass the title of C. T. Clements, plaintiff's grantor. ""Cruzen v. Stephens, 123 Mo. 337; ""Elting v. Gould, 96 Mo. 535. (3) The deed from Alice E. Adams to Charles T. Clements was improperly admitted in evidence, without proof of conveyance from Elizabeth Alice Adams, the last person shown to be seized. ""Duncan v. Able, 99 Mo. 188; ""Marvin v. Elliott, 99 Mo 616.

OPINION

Macfarlane, J.

This suit is ejectment to recover possession of the west half of the northwest quarter of section 5, township 27, range 30. The petition is in the usual form with the additional averment that defendant entered into the possession "by putting a tax deed upon record." By the answer defendant "admits that he is in possession of the premises sued for," but denies each other allegation of the petition.

On the trial plaintiff put in evidence the following deeds, "which were admitted to be in due form of law:" The first three of these deeds, commencing with a patent from the United States, vested the title in John Levering, July 1, 1860. Fourth. John Levering and wife to Elizabeth Alice Adams, warranty deed, dated April 30, 1873. Fifth. Alice E. Adams to Charles T. Clements, warranty deed, dated July 30, 1879. This deed contains this recital: "Being the same land acquired by deed April 30, 1873, from John Levering and Elizabeth Levering, his wife." Sixth. C. T. Clements to J. E. Mosely, quitclaim deed, dated January 2, 1892. Seventh. Sheriff's deed, dated 1886, purporting to convey the interest of C. T. Clements to James Reily, based on judgment in back tax suit, the service in which was by publication against C. T. Clements. The description of these deeds is given here verbatim, as found in the bill of exceptions.

Defendant asked, and the court refused, to give the following declarations of law:

"The court declares that, under the pleadings and evidence, the finding should be for the defendant.

"The court declares that the sheriff's deed, purporting to convey the interest of C. T. Clements, is sufficient to pass the title of Charles T. Clements."

The judgment was for plaintiff, and defendant appealed.

I. From the declaration of law asked by defendant, we must assume that he claimed title, and the right to the possession, under the sheriff's deed purporting to convey to him the land in question. Charles T. Clements, then, is the common source of title under which both parties claim. It would, therefore, be a useless thing to consider objections made to the deed of Alice E. Adams, and to determine whether, under the recital in the deed, she was sufficiently identified as Elizabeth Alice Adams who held the title.

II. Both parties claim to have acquired the title of Charles T. Clements. The sheriff's deed, under which defendant claims, is prior in date and must prevail if founded upon a valid judgment. The title stood upon the record in the name of Charles T. Clements. The only service upon Clements was by publication of notice to C. T. Clements. We assume, though the fact does not appear, that Clements made no appearance to the tax suit, and that the judgment was by default. The controlling question in this case, therefore, is whether the published notice to C. T. Clements was sufficient to shield the judgment against the land of Charles T. Clements from collateral attack. The difficulty becomes embarrassing in view of what we conceive to be contrary rulings of this court as to the effect a service upon a party, under the initials of his given name, would have upon the judgment when brought in question collaterally.

In the case of Martin v. Barron, 37 Mo. 300, a foreign judgment by default against John E. Barron, the service having been upon J. E. Barron, was held good against a collateral attack. In that case it is said by Wagner, J., the other judges all concurring: "Granting that the writ and service were defective, and that the judgment rendered thereon was irregular, can it be impeached and declared void in this collateral manner? Most certainly not. In this collateral action its conformity to law can not inquired into. If the judgment is erroneous, it should be reversed or vacated in a direct proceeding, instituted for that purpose, in the court where it was rendered." On the contrary, in Skelton v. Sackett, 91 Mo. 377, 3 S.W. 874, a judgment by default against Quinces R. Noland upon a published notice to Q. R. Noland, was held to be absolutely void. While the first of these cases is cited in support of the last named, the two appear to us to be absolutely irreconcilable in principle.

The opinion in the latter case quotes approvingly the following from what was said in the former: "The Christian and surname of both plaintiff and defendant should be set forth with accuracy; for, since names are the only marks and indicia which human kind can understand each other by, if the name be omitted or mistaken, there is a complaint against nobody. But, when the service has been read by a wrong name, the misnomer or want of a name is pleadable in abatement only." Citing 1 Bac. Abr. 9; 2 Black. 1120.

It appears from the authorities cited in Martin v. Barron supra, to be the settled rule that a service, under the wrong Christian name, must be taken advantage of by plea in abatement, and failing to plead, the judgment thereon will not be void. In Root v. Fellowes, 6 Cush. 29, which was an action on a judgment against William B. Fellowes and Day, it is said, by Metcalf, J.: "The omission of Day's Christian name, in the writ on which the judgment now in suit was...