Blodgett v. Schaffer

• Decision Date: 19 March 1888
• Parties: Blodgett, Appellant, v. Schaffer
• Court: Missouri Supreme Court

7 S.W. 436

94 Mo. 652

Blodgett, Appellant, v. Schaffer

Supreme Court of Missouri

March 19, 1888

Appeal from Johnson Circuit Court. -- Hon. Noah M. Givan, Judge.

Statement of the case, by Sherwood, J.

On January 22, 1885, plaintiff brought ejectment for the east one-half of the northeast quarter of the southeast quarter and the southwest quarter of the southeast quarter of section 24, township 47, range 26, in Johnson county, Missouri. Petition in usual form, alleging ouster on the twenty-fourth 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 eighteenth 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 that he resided in the city of St. Louis.

The 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 the plaintiff rested his case.

(1) The defendant offered in evidence a deed purporting to have been executed by John A. Shaw, sheriff of Johnson county Missouri, to John Newton. The deed recites that, on the tenth day of November, 1880, judgment was rendered in the circuit court of Johnson county, Missouri, in favor of the state of Missouri, at the relation and to the use of W. P. Hunt collector of the 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 southwest quarter of the southeast quarter of section 24, township 47, range 26; (2) the northeast quarter of the southeast quarter of section 24, township 47, range 26; (3) the north half of the southeast quarter of the southwest quarter of 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 twenty-fifth 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 twenty-sixth day of February, 1881.

To the introduction of the above mentioned deed in evidence the 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 by the court overruled; the deed was read in evidence, and plaintiff at the time excepted.

(2) The 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 southwest quarter of the southeast quarter; (2) the northeast quarter of the southeast quarter; (3) and the north one-half of the southeast quarter of southwest quarter, all in section 24, township 47, range 26; that the taxes and interest due and unpaid thereon is as follows: Upon said tract number 1 for the years 1868, 1869, 1870, 1871, 1872, 1874, 1875, 1876, 1877, 1878, $ 64.44; upon said tract number 2 for 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, 1878, $ 72.86; and upon said tract number 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 ten 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 in evidence the 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 by the court overruled; the judgment was read in evidence, and plaintiff at the time excepted.

(3) The 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.

(4) The defendant read in evidence, without objection, a deed dated October 16, 1882, from James H. Newton and wife to himself -- David Schaffer -- for the premises in question.

(5) The defendant read in evidence, without objection, a deed dated January 16, 1876, from Russell Hick to the Union National Bank of St. Louis for the premises in question.

(6) It was then admitted that neither the defendant nor said John Newton were ever in possession of the land prior to the tax sale.

On the foregoing testimony the defendant rested his case.

The 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:

The State of Missouri, at the relation and to the use of William P. Hunt, collector of the 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 were filed the back-tax bills, as made out and certified by the collector).

To the original petition there was attached a summons for the defendants, John Newton and Caroline F. McCown, and on that summons there is a return of the sheriff in words and figures as follows, to-wit:

"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 Aug. 18, 1880.

Z. H. Emerson, Sheriff.

Judgment $ 145.12.

Filed Aug. 26, 1880.

H. S. Witherspoon, Clerk.

When offered in evidence the summons attached to the counterpart sent to the city of St. Louis appeared as follows:

State of Missouri, County of Johnson.

In the Circuit Court.

The State of Missouri to the Sheriff of the City of St. Louis Greeting: -- We command you to summons

The Union National Bank of the City of St. Louis.

if he be found in your city, to appear before our circuit court, to be holden within and for the county of Johnson, at the courthouse in the city of Warrensburg, in said county, on the first day of the next term thereof, to be begun and held on the second Monday in October next A. D. 1880, then and there before the judge of our said cou...