Blodgett v. Schaffer

• Decision Date: 19 March 1888
• Citation: 7 S.W. 436,94 Mo. 652
• Parties: BLODGETT v. SCHAFFER.
• Court: Missouri Supreme Court

7 S.W. 436

94 Mo. 652

BLODGETT v. SCHAFFER.

Supreme Court of Missouri.

March 19, 1888.

1. TAXATION — SALE FOR TAXES — SUMMONS — BANK.

In ejectment, both parties claimed under common source of title, — a bank. Defendant held under a sale of the lands, on a judgment for taxes against the bank. Plaintiff held under a deed direct. It appeared that the summons in the tax suit issued against one who was the president of the bank, but issued and was served on him individually. Held, that there was no service on the bank, and the judgment and sale of the land thereunder was of no effect; and such defect was not cured by permission of court, at the instance of defendant in ejectment, granting a second summons, after final judgment, and after the institution of the ejectment suit, without notice to defendant therein, or the sheriff, the relator.

2. SAME — TAX TITLE — IMPEACHMENT — LIMITATION.

In ejectment, on appeal, where defendant held under a tax deed, valid on its face, he contended that plaintiff's action was barred, because defendant's deed had been recorded more than three years. Held, that this defense could not avail, because (1) it was not raised in the court below; (2) the record did not disclose when it was recorded, and the court could not go outside; (3) the sale was after Rev. St. 1879, and, by section 3160, the special revenue act of 1872, § 221, under which such limitation was claimed, was repealed.

Appeal from circuit court, Johnson county; NOAH M. GIVAN, Judge.

On January 22, 1885, plaintiff, Blodgett, brought ejectment against defendant, Schaffer, for the E. ½ of the N. E. ¼ of the S. E. ¼, and the S. W. ¼ of the S. E. ¼, of section 24, township 47, range 26, in Johnson county, Mo. Petition in usual form, alleging ouster on the 24th of the preceding October. Defendant, in his answer, admitted possession of the premises, but the other allegations of the petition he denied. On the trial, it was stipulated that the Union National Bank of the City of St. Louis was the common source of title; that on and prior to the 18th day of August, 1880, and at the time of the delivery of a copy of the summons and a copy of the petition by the sheriff of the city of St. Louis, or his deputy, to Thomas H. Larkin, in the tax suit under which defendant claims title, the Union National Bank of the City of St. Louis was a corporation; that said Larkin was the president and chief officer thereof, and resided in the City of St. Louis. Plaintiff offered in evidence without objection a deed from the Union National Bank of St. Louis, dated October 22, 1884, conveying the land in question to himself. On this evidence plaintiff rested his case. Defendant offered in evidence a deed purporting to have been executed by John A. Shaw, sheriff of Johnson county, Mo., to John Newton. The deed recites that on the 10th day of November, 1880, judgment was rendered in the circuit court of Johnson county, Mo., in favor of the State of Missouri ex rel. W. P. Hunt, collector of revenue of Johnson county, etc., against John Newton, Caroline F. McCown, and the Union National Bank of the City of St. Louis, for the sum of $145.12, on account of certain delinquent state, county, and special taxes assessed and found by said court to be due and unpaid upon the following described real estate, to-wit: (1) The S. W. ¼ of the S. E. ¼, section 24, township 47, range 26; (2) the N. E. ¼ of the S. E. ¼, section 24, township 47, range 26; (3) the N. ½ of the S. E. ¼ of the S. W. ¼, section 24, township 47, range 26. The deed also recites the years for which the taxes were levied; that said taxes were adjudged a lien on said real estate; that so much thereof was ordered sold as might be necessary to satisfy said judgment and costs; that a special execution was issued on said judgment; that, by virtue thereof, said sheriff, on the 25th day of February 1881, after giving due notice, etc., sold said real estate to John Newton (one of the defendants in the tax suit) for $383. The deed then, by apt words, purports to convey, by virtue of said judgment and execution and sale, all the right, title, and interest of said John Newton, Caroline F. McCown, and the Union National Bank of the City of St. Louis in and to said real estate to said John Newton. The deed was signed and sealed by said sheriff, and purported to have been executed and acknowledged in open court on the 26th day of February, 1881. To the introduction of the above-mentioned deed plaintiff objected, because the same was incompetent for the reason that no jurisdiction was acquired by the court, in the suit under which said land was sold, over the party (the Union National Bank of St. Louis) through whom plaintiff claimed title. The objection was overruled, the deed was read in evidence, and plaintiff excepted. Defendant then offered in evidence the judgment under which said land was sold by the sheriff, and on which his deed was based; said judgment being in words and figures as follows, to-wit:

"State ex rel. W. P. Hunt, Col., vs. John Newton, Caroline McCown, and the Union National Bank of the City of St. Louis, in the State of Missouri. (Suit for Back Taxes.)

"Now comes said plaintiff by attorney, and said defendants, being duly summoned and solemnly called, come not, but make default, wherefore plaintiff ought to recover by reason of the premises; and this suit being on a back tax bill, by which the amount of plaintiff's demand is ascertained, the court finds that said defendants are the owners of the following-described real estate, situate in the county of Johnson, state of Missouri, to-wit: (1) The S. W. ¼ of the S. E. ¼ (2) the N. E. ¼ of the S. E. ¼; (3) and the north ½ of the S. E. ¼ of the S. W. ¼, — all in section 24, township 47, range 26. That the taxes and interest due and unpaid thereon is as follows: Upon said tract No. 1 for the years 1868, 1869, 1870, 1871, 1872, 1874, 1875, 1876, 1877, 1878, $64.44; upon said tract No. 2 for 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, $72.86; and upon said tract No. 3 for 1874, 1875, 1877, and 1878, $7.82,—making in the aggregate the sum of $145.12, which said sum is a lien upon said land in favor of the state of Missouri. Wherefore it is ordered, adjudged, and decreed by the court that the default aforesaid be made final; that the law of the state be enforced against said premises; that plaintiff have and recover judgment against said defendants for said sum of $145.12, so found due and owing as aforesaid, with 10 per cent. interest, and costs of this suit; that said lands be sold to satisfy this judgment, and that a special execution issue therefor."

To the introduction of which judgment plaintiff objected, for the reason that the court acquired no jurisdiction over plaintiff's grantor in the cause in which said judgment was rendered, and because said judgment was void as to plaintiff. The objections were overruled, the judgment read in evidence, and plaintiff excepted. Defendant read in evidence, without objection, a deed dated March 8, 1881, from John Newton and wife to James H. Newton for the premises in question; and also a deed dated October 16, 1882, from James H. Newton and wife to himself for the premises in question; also a deed dated January 16, 1876, from Russell Hick to the Union National Bank of St. Louis for the premises in question. It was admitted that neither defendant nor said John Newton were ever in possession of the land prior to the tax sale. On the foregoing testimony defendant rested his case. Plaintiff, in rebuttal, offered in evidence the original judgment-roll in the tax suit of "State of Missouri ex rel. Hunt v. Newton et al.," to-wit: The original petition, tax-bills, writ, and return of sheriff thereon; the counterpart, writ, and return thereon; also certain indorsements in pencil on the original petition and counterpart; the special execution in said cause, and the return and report of sale thereunder. The petition in the tax suit was entitled as follows:

"PETITION IN SUIT FOR BACK TAXES ON DELINQUENT AND FORFEITED LANDS.

"The State of Missouri, at the Relation and to the Use of William P. Hunt, Collector of Revenue of Johnson County, in the State of Missouri, vs. John Newton, Caroline F. McCown, and The Union National Bank of the City of St. Louis, in the State of Missouri.

"In the Circuit Court of Johnson County, October Term, 1880."

The body of the petition is in the usual form in such cases. It states that the taxes were duly assessed and levied; gives the kind of tax, and the amount due each year, on each tract; alleges that defendants were the owners of the land; that they had neglected and refused to pay the taxes; that the taxes were a lien; and prays for judgment, special execution, etc. With the petition was filed the back-tax bills, as made out and certified by the collector. To the original petition there was attached a summons for defendants John Newton and Caroline F. McCown, and on that summons there is a return of the sheriff in words and figures as follows: "Executed the within petition and writ in the county of Johnson and state of Missouri on the 23d day of August, 1880, by delivering a certified copy thereof to the within-named defendant John Newton. I further certify that on the 11th day of September, 1880, I delivered to the within-named defendant Caroline F. McCown a true copy of

                the within writ.          Z. H. EMERSON, Sheriff of Johnson County
                                                          "By C. H. HEWITT, Deputy."
                

On the back of the original petition is the following indorsement: "Petition in suit on delinquent lands. State of Missouri vs. John Newton, Caroline F. McCown, Union National Bank of St. Louis. [The following is in pencil:] `Counterpart to City of St. Louis for Union National Bank, to be served on T. H. Larkin.' Received August 18, 1880. Z. H. EMERSON, Sheriff. Judgment $145.12. Filed August 26, 1880. H. S. WITHERSPOON, Clerk."

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