Graton v. Holliday-Klotz Land & Lumber Co.

• Decision Date: 06 June 1905
• Parties: GRATON, Appellant, v. HOLLIDAY-KLOTZ LAND AND LUMBER COMPANY
• Court: Missouri Supreme Court

87 S.W. 37

189 Mo. 322

GRATON, Appellant, v. HOLLIDAY-KLOTZ LAND AND LUMBER COMPANY

Supreme Court of Missouri, Second Division

June 6, 1905

Appeal from Wayne Circuit Court. -- Hon. Frank R. Dearing, Judge.

Reversed and remanded.

Lee W Grant and Pierre B. Kennedy for appellant.

A suit under section 650 is, from the language of the statute itself, necessarily an equitable proceeding. Hall v Kellog, 16 Mich. 135. "In a bill to quiet title it is sufficient for plaintiff to make out a title apparently good as against defendant." Rayner v. Lee, 20 Mich. 384; Loomis v. Roberts, 57 Mich. 284. Tax proceedings are of no force or effect to convey the interests of parties not made parties to the suit. Whelen v Weaver, 93 Mo. 430. No one is served by publication who is not correctly named. Chamberlain v. Blodgett, 96 Mo. 482; Troyer v. Wood, 96 Mo. 478. The certificate of acknowledgment by a sheriff to a deed must be within and of itself complete, and no extrinsic evidence can be invoked to eke out its recitals. McClure v. McClurg, 53 Mo. 173. Sheriff's deed must be acknowledged in open court and the acknowledgment endorsed by clerk on the deed. Allen v. King, 35 Mo. 216; R.S. 1899, sec. 3211. Certified copies of sheriff's deeds are admissible in evidence without proof of loss or inability to produce the original deed. R.S. 1899, sec. 3213; Hammond v. Johnston, 93 Mo. 198.

James F. Green and John H. Raney for respondent.

(1) No order of the court is set forth in the abstract or transcript showing that such order was made, and, in the absence of the order itself, the court cannot presume that the bill of exceptions was filed in time, and, therefore, the court might well refuse to consider the alleged errors complained of by plaintiff. (2) The persons named in the tax judgment were prima facie the owners of the land in controversy, and it devolved upon the plaintiff, in order to recover, to overthrow this prima facie case in favor of defendant's deed, and to show that the parties sued were not the owners of the land. R.S. 1899, sec. 3150. Plaintiff objects in this court to defendant's deed, which was offered on part of the plaintiff, and to which no objection was made by defendant. He contends that this deed is void because the acknowledgment is defective. No objection was made to the introduction of the deed, and it was offered as a part of plaintiff's case. It is not void because, even, if lacking an acknowledgment, such defect may be cured by proper proceedings in the court where the deed was acknowledged and a perfect title pass if the judgment, upon which the deed is based, is valid. R.S. 1899, secs. 3211 to 3214; Bayard v. Hospital Ass'n, 116 Mo. 419. (3) Nor is the deed absolutely void in so far as it purports to convey plaintiff's title. Grafton and Graton are idem sonans, and the order of publication, in the name of Henry C. Grafton, is good. State v. Wilkerson, 13 Mo. 91; State v. Havely, 21 Mo. 498; State v. Blankenship, 21 Mo. 504; Houx v. Batteen, 68 Mo. 84; State v. Pullins, 81 Mo. 387; Cato v. Hudson, 7 Mo. 142; State v. Hudson, 15 Mo. 512; Gresham v. Walker, 10 Ala. 370; Jeffries v. Bartlett, 75 Ga. 230; Barnes v. People, 18 Ill. 52; Belton v. Fisher, 44 Ill. 32; Williams v. Hitzie, 83 Ind. 303; Geer v. Lumber Co., 134 Mo. 85; Simonson v. Dolan, 114 Mo. 179. In the case at bar, plaintiff's name appears in the petition as Graton; in the order of publication as Grafton. In each his name is joined with the names of all of the parties through whom he claims title, and this, coupled with the fact that the land upon which it is sought to enforce the tax lien is described in the order of publication, ought to be held sufficient notice. (4) A judgment for taxes, if brought against the right parties, is conclusive of all questions as to the amount of taxes due, regularity of the assessment, etc., and such judgment cannot be contested as to any matters which might have been shown in defense in an action for taxes. Stephenson v. Black, 168 Mo. 549. The action under section 650, Revised Statutes 1899, is a statutory proceeding, and not a purely equitable one, and in a proceeding under said section, plaintiff must establish a right to recover by showing a better title than defendant, otherwise the action fails. He is not entitled to a decree directing defendant to establish his title. Meriwether v. Love, 167 Mo. 514.

OPINION

GANTT, J.

This is an appeal from a judgment of the circuit court of Wayne county. The action is brought under section 650, Revised Statutes 1899.

The petition, in substance, states that the defendant is and was at the times hereinafter mentioned, a corporation, duly organized and existing according to law; that plaintiff is and has for a long time past been the owner in fee simple of the following real estate in Wayne county, to-wit, the southeast one-fourth, and the west one-half of southeast one-fourth, of section thirty-four, township thirty, in range six, consisting of two hundred and forty acres; that defendant claims to have some title, estate or interest in said property adverse to the title and interest of this plaintiff.

The prayer of the petition is that the court ascertain and determine the estate, title and interest of the plaintiff and defendant herein, and by its judgment and decree define and adjudge the title, estate and interest of plaintiff. The answer was a general denial, coupled with the averment that the title was well vested in the defendant. On February 3, 1902, judgment was entered dismissing plaintiff's bill. Within due time plaintiff filed a motion for a new trial, which was heard and overruled and exceptions duly saved. Plaintiff was allowed ninety days from February 4, 1902, within which to file a bill of exceptions, and on the 29th of April, 1902, the bill of exceptions was filed.

At the outset the point is made by the respondent that the abstract is insufficient, because the order of the court showing the leave to file the bill of exceptions is not set forth in full, but that there is simply a recital thereof. The abstract recites that on February 4, 1902, and during the same term at which the judgment was rendered, plaintiff was granted ninety days in which to file a bill of exceptions, and that on April 25, 1902, the bill of exceptions was signed and sealed, and on April 29, 1902, was filed in vacation.

This was sufficient under the rulings of this court in McDonald v. Hoover, 142 Mo. 484, 44 S.W. 334, and Ricketts v. Hart, 150 Mo. 64, 51 S.W. 825.

The circuit court at the close of plaintiff's evidence sustained a demurrer to the evidence, and dismissed the bill, and this action of the court presents the sole question for determination at this time. The unfortunate burning of the Wayne county court house, and of all the records of deeds in 1892, places the plaintiff in a very awkward situation.

Plaintiff offered and read in evidence a deed from H. M. Hedden and wife to plaintiff, conveying the land in question in the ordinary form of a warranty deed. This deed was executed and acknowledged on the 4th day of January, 1895, before Roswell E. Grow, a notary public within and for the county of Arapahoe, Colorado. This deed was duly filed for record on the 7th of January, 1895, in the recorder's office of Wayne county, Missouri.

The plat of original entries of Wayne county was offered and read in evidence, from which it appears that Wm. R. Orrick was the original patentee of the land in question on the 10th day of September, 1859. H. M. Hedden testified on behalf of the plaintiff that he was a resident of Denver, Colorado, and a merchant by occupation; that prior to his going to Denver, he lived or resided in Worcester, Massachusetts, and had resided there about twenty-five years; that he was the H. M. Hedden who sold the land in controversy to the plaintiff, Henry C. Graton, and made the deed above referred to; that he bought this land in November, 1875, from one Reuben Spaulding, by giving in exchange therefor certain houses in Worcester county, Massachusetts; that he owned the land in suit from 1875 to 1894 when he sold the same to Graton, the plaintiff. The land was timber land; that he paid all the taxes on the said land from 1875 to 1894, and had the old patent from the Government to Orrick; that he had in his possession the deed from Spaulding to himself when he sold to Graton, and that it was his best recollection that he sent the deed from Spaulding to himself to Graton, with the abstract and all the papers pertaining to the land; that he also had a deed from L. B. Greenman to Reuben Spaulding, and believes that he sent that also to Graton; that he had made diligent search for all these deeds and could not find them; that he never had a deed from Orrick, the original patentee to Henry J. Martin, nor from Martin to Greenman.

The plaintiff Graton testified that he was seventy-seven years of age, and resided in Worcester, Massachusetts, where he had lived fifty years; that he had known Horace M. Hedden for twenty years; that in January, 1895, he bought this land from Hedden, and received from him the warranty deed already referred to. At the time he received his deed from Hedden he obtained from him a paper marked "Abstract of Title," which he attached to his deposition as an exhibit; that this paper and the deed were the only ones that he remembered receiving from Hedden; that if Hedden gave him any other deeds they had been lost, because after diligent search he could not find them; that he knew Reuben Spaulding and that he formerly lived in Worcester, but had been dead over twenty years, and his widow died eighteen years ago; that he had made inquiries concerning the other grantors, Greenman and Martin, and had been unable to find anything concerning...