Wheelen v. Weever

• Decision Date: 19 December 1887
• Citation: 6 S.W. 220,93 Mo. 430
• Parties: WHEELEN v. WEEVER et al.
• Court: Missouri Supreme Court

6 S.W. 220

93 Mo. 430

WHEELEN v. WEEVER et al.

Supreme Court of Missouri.

December 19, 1887.

1. TAXATION — COLLECTION BY SUIT — SERVICE BY PUBLICATION.

A judgment for the collection of taxes, begun by service of publication addressed to Henry Wheeler, when the correct name of defendant was Henry Wheelen, is void, and the sale and deed thereunder conveys no title as against the owner.

Error to circuit court, Shannon county; J. R. WOODSIDE, Judge.

Action of ejectment by Henry Wheelen, plaintiff, against Hezekiah Weever et al., to recover certain real estate. Judgment for the defendant, and plaintiff took writ of error.

Settle & Bugg, for plaintiff in error. A. H. Livingston, for defendants in error.

BLACK, J.

This was an action of ejectment for three parcels of land in Shannon county. Plaintiff shows a complete chain of title, by patent and deeds, in himself, to the described property, all of which deeds were duly executed and recorded on or prior to December 12, 1871. He continued to be the owner of the land, until 1879, when he conveyed to one Mendenhall, who conveyed back to plaintiff in February, 1883. The defendants' title is a sheriff's deed, dated fifth November, 1880, to defendant Weever. The deed recites a sale under a special execution, issued on a transcript of a judgment of a justice of the peace. The judgment was rendered by the justice in a suit by the state at the relation of the collector of Shannon county against Henry Wheeler for the collection of taxes due on the land for the year 1878. The only notice of that suit to the defendant in that case was an order of publication. The sheriff's deed does not describe one of the parcels of land sued for, and as to that the defendant does not have even a shadow of a title. Again, the plaintiff sues by the name of Henry Wheelen, and this seems to be his name as disclosed by the deeds to and from him. The order of publication in the tax suit is addressed to Henry Wheeler. The proceedings in that suit, from first to last, are against Henry Wheeler. Wheelen and Wheeler are not the same; they are not idem sonans. In Robson v. Thomas, 55 Mo. 582, names are said to be idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or common and long-continued usage has by corruption or abbreviation made them identical in pronunciation. Here the pronunciation is entirely different. The tax proceedings, including the deed, are of no force or effect as against the...