Allen v. Ray

• Decision Date: 20 December 1888
• Citation: 10 S.W. 153,96 Mo. 542
• Parties: ALLEN v. RAY et al.
• Court: Missouri Supreme Court

10 S.W. 153

96 Mo. 542

ALLEN v. RAY et al.

Supreme Court of Missouri.

December 20, 1888.

1. TAXATION — TAX TITLE — UNRECORDED PATENT — PURCHASER'S TITLE.

A purchaser at tax sale under proceedings against the patentee, whose patent is not of record in the county, and who has parted with his title, takes no title as against one claiming under a recorded conveyance from the patentee's grantee, though the intermediate conveyance is not recorded.

2. JUDGMENT — DELINQUENT TAXES — RES ADJUDICATA — EJECTMENT.

In ejectment against a purchaser at tax sale, the judgment for delinquent taxes is conclusive of the validity of the assessment, and the assessor's books are inadmissible to show its invalidity.

3. TAXATION — TAX SALE — PUBLICATION — AFFIDAVIT OF NON-RESIDENCE.

Under Rev. St. Mo. 1879, § 6837, declaring that in tax suits against non-resident owners the proceedings shall be as in civil actions affecting real or personal property, and section 3494, providing that in suits for the enforcement of liens, if it is alleged in the petition or affidavit that defendant is a non-resident, an order shall be made, directed to non-residents, etc., an affidavit at the end of the petition in a tax suit that affiant has good reason to believe and does believe that defendant is a non-resident is sufficient for an order for publication.

4. SAME — DESCRIPTION OF LAND — USE OF LETTERS.

It is not essential that an order of publication describe the land, and if it were a description of it as the "Shf" of a given section is sufficient; Rev. St. Mo. § 6857, providing that in papers in tax proceedings "S." may be used for "south," and that any description by the use of letters and characters as provided in that section, when so made that the land may be identified, is sufficient.

5. SAME — ERROR IN JUDGMENT — CORRECTION BY MOTION.

A variance between the amount of the judgment and the amount of taxes due as stated in the order for publication, caused by the addition of interest to the latter amount, if error, can be corrected only by motion against the judgment, and is not available collaterally.

Appeal from circuit court, Barry county; WILLIAM F. GEIGER, Judge.

Ejectment by Thomas M. Allen against John Ray and Preston Gibson, who set up a tax title. The order for publication described the land as the "Shf" of a given section. The first, third, and sixth instructions asked by plaintiff, and refused, were: "(1) That the patents from the United States to John McFeely, and the deed from John McFeely and wife to J. Stewart Lowe, and the deed from J. Stewart Lowe and wife to George Crown, and the deed from George Crown and wife to Horace R. Williams and Thomas M. Allen, and the deed from Horace R. Williams and wife to the plaintiff, Thomas M. Allen, had the legal effect to pass the title to the land in controversy to plaintiff, and that he is entitled to recover in this action." "(3) That the recording of the deed from J. S. Lowe and wife to George Crown, in the deed-record in the office of the recorder of deeds of Barry county, Missouri, was notice to all the world from the date of its being recorded." "(6) That the patents and deeds read in evidence by plaintiff, passed to him the title to the land in question, and plaintiff is entitled to recover." Defendants obtained judgment and plaintiff appeals. Rev. St. Mo. 1879, § 6857, provide that "in all advertisements * * * or other papers required to be made under the provisions of this chapter, it shall be lawful to use letters, figures, and characters as follows: Letters may be used to denote township, range, boundaries, parts of section, parts of lots or blocks, or other subdivisions of real estate in the following manner: T. for township, R. for range, L. for lot, B. for block, N. for north, E. for east, S. for south and W. for west, or any combination or combinations of the four last mentioned letters, to denote parts of sections, lots, blocks, or other subdivisions of real property; * * * and any and all descriptions of real estate made under the provisions of this chapter by the use of letters, figures, and characters, as provided in this section, when so made that the land or lot may be identified and located, shall be deemed and held to be good. * * *" By section 6837, "* * * all notices and process in suits under this chapter shall be sued out and served in the same manner as in civil actions in circuit courts, and in case of suits against non-resident, unknown parties, or other owners upon whom service cannot be had by ordinary summons, the proceedings shall be the same as now provided by law in civil actions affecting real or personal property." Section 3494 provides that "in suits for the enforcement of * * * liens against either real or personal property, * * * if the plaintiff or other person for him shall allege in his petition or file an affidavit stating that part or all of the defendants are non-residents of the state, * * * so that ordinary process of the law cannot be served upon them, the court or clerk in vacation shall make an order directed to non-residents," etc.

Norman Gibbs and T. M. Allen, for appellant. Hubbert & Wear, for respondents.

BRACE, J.

This is an action of ejectment commenced by plaintiff in the circuit court of Barry county against John Ray and Preston Gibson, brought here by appeal. Pending the appeal in this court John Ray died and his heirs, Charles and Arabella Ray, have been made parties respondent.

The plaintiff seeks to recover possession of the S. ½ of section 14, township 23, in range 29, patented by the United States to one John McFeely, in March, 1867, and to show title in himself introduced in evidence the patents to McFeely; a warranty deed from McFeely to J. Stewart Lowe, dated April 10, 1867, recorded in Barry county, February 15, 1883; a warranty deed from Lowe and wife to George Crown, dated January 1, 1874, recorded November 8, 1875; a quitclaim deed from Crown and wife to Horace P. Williams and Thomas M. Allen, plaintiff, dated February 13, 1882, and recorded February 15, 1883; and a quitclaim deed from Williams to plaintiff dated August 21, 1883, and recorded August 23, 1883, conveying the land in controversy, — and rested this case. The defendants admitted they were in possession, and to overcome the plaintiff's title introduced in evidence a deed from the sheriff of Barry county, in proper form, dated September 14, 1878, conveying the premises to John Ray, Michael Horim, and John W. Wellshear, purchasers at execution sale under a judgment recorded at the March term, 1878, of the circuit court of Barry county, in favor of the state at the relation of the collector of Barry county in a suit for delinquent taxes due on said land for the years 1871 to 1876, inclusive, commenced in said court against John McFeely, by petition and order of publication; the petition and judgment in said tax suit; and a quitclaim deed from Horim and...