Vincent v. Means
| Decision Date | 22 November 1904 |
| Citation | 82 S.W. 96,184 Mo. 327 |
| Parties | MINOS C. VINCENT v. MEANS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Putnam Circuit Court. -- Hon. P. C. Stepp, Judge.
Reversed and remanded.
Wilson & Clapp and N. A. Franklin for appellants.
(1) Where a case is tried by the court sitting as a jury, and there is evidence given by both parties on the issues, it is error to give a peremptory instruction that upon the evidence the plaintiff is entitled to recover. DeGraw v Prior, 53 Mo. 313; Butler Co. v. Bank, 143 Mo 23. In determining the propriety of a peremptory instruction it is immaterial whether the case is tried by the court or by a jury. Lumber Co. v. Christophel, 62 Mo.App. 98. The first declaration of law given for the plaintiff is manifestly erroneous. It takes the whole case from the jury or from the court sitting as a jury, and declares as a matter of law, without weighing the evidence, that the plaintiff is entitled to recover. Young v. Webb City, 150 Mo. 333; Bank v. Simpson, 152 Mo. 638; Pauck v. Dressed Beef Co., 159 Mo. 467; Dorsey v. Railroad, 83 Mo.App. 528; Steube v. I. & F. Co., 86 Mo.App. 640. (2) The judgment rendered in 1896 in the suit to quiet title is a valid and subsisting judgment, is not subject to collateral attack, and bars the plaintiff from maintaining the present action. Sec. 6770, R. S. 1889; sec. 2095, R. S. 1889; Laws 1891, p. 71; sec. 2022, R. S. 1889; Mosely v. Reily, 126 Mo. 124. The suit to quiet title was brought under the provisions of section 2095, Revised Statutes 1889, as amended by the act of 1891, p. 71 and sec. 6770, R. S. 1889. The former section provides that in such a suit it shall not be necessary to make any person a party defendant except such person as may appear to have of record a title adverse to that of plaintiff. It further provides that in any action brought under its provisions service of process may be had as provided in article 4 of that chapter. Such service is provided for in section 2022, Revised Statutes 1889, and is the ordinary method of service on non-residents by publication. The reasoning in Mosely v. Reily, 126 Mo. 128, is clear and cogent and cannot be successfully attacked. It is there said that "if the name as used is the same as the party himself uses, and under which he is known, and the facts recited in the notice sufficiently identify the person intended and advise him that his property is brought before the courts, that would be sufficient to give the court jurisdiction to render the judgment." Plaintiff himself swears that he usually signed his name M. C. Vincent. He always so signed hotel registers, and always signed the letters he wrote M. C. Vincent, except those written to his relatives.
John C. McKinley and Higbee & Mills for respondent.
(1) There was no error in giving plaintiff's first declaration. There was no evidence that would have justified a verdict for the defendants if this case had been submitted to a jury. It is a well-established rule in this court that where it appears from the evidence that if a verdict were given for a certain party it would be the duty of the trial court to set it aside, then it becomes the plain duty of the court to direct a verdict for the opposite party. Oglesby v. Railroad, 76 S.W. 627; State to use v. O'Neill, 151 Mo. 89; Commissioners v. Clark, 94 U.S. 284, approved in Powell v. Railroad, 76 Mo. 84; Hite v. Railroad, 130 Mo. 140; Morgan v. Durfee, 69 Mo. 476. It is substantial evidence that will take a case to the jury. Haven v. Railroad, 155 Mo. 230; 2 Thompson on Trials, sec. 2248-2250; 1 Blashfield on Instructions, sec. 5, p. 9, n. 20. (2) There is a manifest distinction between instructions to a jury and declarations of law by the court. If there was evidence to support the finding, and the law applicable to the facts was correctly declared, it is not important to inquire whether any particular instruction ought or ought not to have been given. Cook v. Farrah, 105 Mo. 508; Stone v. Spencer, 77 Mo. 361. The so-called proceeding to quiet title was coram non judice. (a) The name of the record owner of the land as shown by the plat book of entries and by the patents was Minos C. Vincent. The proceeding was against M. C. Vincent. This was fatal even if the proceedings had been regular in other respects. Monroe Cattle Co. v. Becker, 147 U.S. 58, S. C., 37 Law Ed. 77. The statute requires the proceeding to be against the record owner, and that means his name as it appears of record. The name of the non-resident owner must be correctly published. Constructive service confers jurisdiction only where the law has been strictly complied with. Skelton v. Sackett, 91 Mo. 377. Turner v. Gregory, 151 Mo. 104, where Skelton v. Sackett, 91 Mo. 377, is affirmed, is a case precisely in point, and distinguishes Mosely v. Reily, 126 Mo. 124, relied on by appellants, of which it is said: "That case was decided correctly upon the principle of estoppel." Riffle v. Lumber Co., 93 Mo.App. 45. Plaintiff, not having been named and named correctly in the pretended order of publication, the substituted service of process is as void as if a blank had been left where his initials were inserted. Troyer v. Wood, 96 Mo. 481; Chamberlain v. Blodgett, 96 Mo. 483; Burge v. Burge, 94 Mo.App. 21. That plaintiff learned in March, 1897, of the entry of this judgment, will not avail to alter its complexion. Green v. Meyers, 98 Mo.App. 443; Wilson v. Railroad, 108 Mo. 596; Harness v. Cravens, 126 Mo. 252; Young v. Downey, 150 Mo. 326; Parker v. Burton, 72 S.W. 663; Feurt v. Caster, 174 Mo. 303; Tooker v. Leake, 146 Mo. 430. (b) The so-called order of publication does not recite an order of publication; it is meaningless. (c) It shows that the original order of publication, if there was one, was neither signed by the clerk, nor attested by the seal of the court. (d) It shows that the copy published was not attested by the seal of the court. (e) It is not directed, that is, addressed to any one. 20 Ency. Pl. and Prac., 1138, note 2; Porter v. Hill County (Texas), 33 S.W. 383; Steele v. Murry, 80 Iowa 336, 45 N.W. 1030.
This is an action of ejectment for the possession of the southwest quarter of section ten, township sixty-five, range nineteen, in Putnam county. The petition is in the usual form in such case. Hugh D. Marshall, who was originally made a codefendant, by answer disclaimed any title or interest in the land, and the case was thereafter dismissed as to him. The other defendants, Means and Clapp, filed answer in which they admit the possession of the land, but deny all other allegations in the petition.
The trial was by the court, a jury being waived, and resulted in a judgment for plaintiff for the possession of the land and one hundred dollars damages. After unsuccessful motions for new trial and in arrest, defendants appeal.
Plaintiff read in evidence a certified copy of a patent to the south half of the southwest quarter of said section ten from the government of the United States to Minos C. Vincent, dated September 10, 1859.
Plaintiff next read in evidence a certified copy of a patent to the north half of the southwest quarter of said section ten from the government of the United States v. Minos C. Vincent, dated September 10, 1859.
Plaintiff then introduced evidence as to the rents and profits of the land and rested.
Upon the part of defendants it appeared that A. B. Vincent claimed to own the land, from the fall of 1867, and that during that fall he wrote to the collector of Putnam county wanting to know what the taxes were on this land for that year, claiming to be the owner. His letter was handed by the collector to Mr. Marshall, who was then county clerk, to answer. Mr. Marshall did so, writing A. B. Vincent that on examination he had found the land on the forfeited list of 1862; and informing him that under the law when land had been forfeited to the State it was not again taxed until redeemed or sold, and advising Mr. Vincent what amount he would have to pay to redeem his land.
In 1881 B. H. Bonfoey, of Unionville, was employed by the Chicago, Burlington & Kansas City Railroad Company to secure for it a right-of-way through Putnam county. Mr. Bonfoey, having ascertained in some way (not disclosed) that A. B. Vincent was the owner of this quarter section, entered into a correspondence with him, extending over a period of about a year, trying to obtain from Mr. Vincent the right-of-way through the land without suit. But failing in this, Bonfoey instituted condemnation proceedings alleging A. B. Vincent to be the owner, and on the seventh day of September, 1882, judgment was rendered against Mr. Vincent in the Putnam circuit court condemning a right-of-way through the land. The money due Mr. Vincent was paid at the time to the circuit clerk, and in 1884 was received by Mr. Vincent.
After the patents to the land were issued they were delivered to A B. Vincent, a brother of the plaintiff, who turned them over to H. D. Marshall in 1884, when he claimed to have bought the land from his brother, and to have had a deed to it from him, and at his request Marshall took possession of the land, fenced it for him, the contract being the fencing in a general way, and the payment of the taxes upon it for five years. Marshall, as the agent of A. B. Vincent, after his lease was out in March, 1889, sold the land to the defendant Means for six dollars and twenty-five cents per...
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