Brown v. Walker

• Decision Date: 29 November 1881
• Citation: 11 Mo.App. 226
• Parties: CHARLES BROWN, Respondent, v. W. H. WALKER ET AL., Appellants.
• Court: Missouri Court of Appeals

11 Mo.App. 226

CHARLES BROWN, Respondent,

v.W. H. WALKER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 29, 1881.

1. In an action to collect back taxes, under the act of 1877, the circuit court does not exercise its jurisdiction in a special or summary manner, and its judgments therein are entitled to the same presumptions as attend its ordinary judgments.

2. In such a suit a single judgment against several distinct lots is erroneous; but the objection does not go to the jurisdiction.

3. In an ejectment suit, the fact that, in a back-tax suit, a single judgment was rendered against distinct lots, cannot be shown by parol, for the purpose of impeaching such judgment.

4. Mere irregularities in the suit which led to a sale under execution does not invalidate the sheriff's deed.

5. An imperfect description of land contained in the tax-bill, judgment, execution, and sheriff's deed, may, if the ambiguity is latent and susceptible of oral explanation, be made certain by extrinsic evidence; and it is sufficient that the description is such that the land can be located by one acquainted with the plats and surveys.

6. In an action of ejectment by a purchaser at a tax-sale, the fact that the sheriff sold two lots together cannot be set up as a defence.

7. A judgment in ejectment is properly rendered against both the landlord and the tenant in possession.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

BROADHEAD, SLAYBACK & HAEUSSLER and E. J. O'BRIEN, for the appellants: The ambiguity on the face of the sheriff's deed is a patent ambiguity, and could not be removed by extrinsic evidence.-- Campbell v. Johnson, 44 Mo. 247, 248; Ware v. Johnson, 66 Mo. 668; Andrews v. Todd, 50 N. H. 565. The deed from the sheriff under which respondent claims, is void for uncertainty. It vested no title in respondent to appellant's property, and the court below erroneously admitted it in evidence.-- Peck v. Mallams, 10 N. Y. 532, and cases cited; Hill v. Mowray, 6 Gray, 551; Nelson v. Brodhack, 44 Mo. 602; King v. Fink, 51 Mo. 209; Bell v. Dawson, 32 Mo. 79. The judgment of the circuit court in the tax-case is a nullity upon its face, the same being void for uncertainty in the description of the lands in question, and because the same is in personam against the owner when it should be in rem against each lot, and because it is in the aggregate instead of severalty on each particular lot.-- Olcott v. The State, 10 Ill. 481; Pidgeon v. The State, 36 Ill. 249. A tax-deed embracing several distinct tracts of land in its recital, and that two or more separate lots were sold en masse for a gross sum, is void on its face, and cannot be contradicted by evidence aliunde.-- Walker v. Morse, 2 Dill. 256; Ryan v. Cook, 21 Iowa, 393; Ferguson v. Heath, 21 Iowa, 438; Harper v. Sexton, 22 Iowa, 442; Ashley v. Sexton, 24 Iowa, 320; Hall v. Dodge, 18 Kau. 277; Pettus v. Wallace, 29 Ark. 476. The facts essential to the exercise of the special jurisdiction of the court in these cases must appear upon the record.-- Galpin v. Page, 18 Wall. 364 et seq.; Jordan v. Giblin, 12 Cal. 100.

D. W. SADLER, for the respondent: Irregularities in proceedings leading to a judgment and sale under execution, do not render the sale and the sheriff's deed void.-- Rector v. Hartt, 8 Mo. 448; Lissa v. Lindell, 21 Mo. 127; Wellshear v. Kelley, 69 Mo. 343; Bouldin v. Ewart, 63 Mo. 330. In ejectment the identity and location of the property may be established by parol evidence.-- Webster v. Blunt, 39 Mo. 500; Surget v. Little, 5 Smed. & M. 319; Shall v. Miller, 3 Wheat. 250; Parker v. Moon, 13 Vt. 183. A sheriff's deed cannot be assailed in ejectment by facts dehors the record.-- Hardin v. Ganse, 53 Mo. 255; Groner v. Smith, 49 Mo. 318. Nor can it be assailed for irregularities in the record.-- Norton v. Quinby, 49 Mo. 388; Whitman v. Fay, 60 Mo. 127.

THOMPSON, J., delivered the opinion of the court.

This is an action of ejectment. The plaintiff had judgment in the circuit court, and the defendants appeal. The defendant Walker claimed the property as owner, and the defendant Creeley was his tenant. There was a third defendant, Anderson, but the suit was dismissed as to him. The plaintiff claims title to the property in controversy by virtue of a sheriff's deed executed and delivered to him as purchaser at a sheriff's sale, under a special execution issued in pursuance of a judgment rendered in the circuit court of the city of St. Louis, against the defendant Walker and the property in controversy, under the act of April 12, 1877, known as the “Back-Tax Law.” The proceedings which resulted in this sale appear to have been taken, in all respects, in strict conformity with the statute, save as to an alleged irregularity in the description of the property itself. This irregularity, if it be such, runs through the whole proceedings, and it is this: In the petition in the back-tax suit, in the order of publication thereupon, in the publication as made in the newspaper designated for that purpose, in the judgment of the court, in the special execution which issued thereupon, and in the deed from the sheriff to the plaintiff as purchaser at the execution sale, the land is described as “lot numbered thirty-eight, and the west part of lot numbered thirty-seven, of block No. two of the Wash Estate Addition to the city of St. Louis.”

The position of the defendants' counsel, as we understand it, is, first, that the circuit court of the city of St. Louis had no jurisdiction to render the judgment, because it appears that the proceeding was instituted to enforce a single assessment and levy of taxes against two lots, or, what is equivalent to the same, against one lot and part of another lot; whereas, the act of 1872 requires a separate assessment and levy of taxes against each lot, and the act of 1877 contemplates a separate proceeding against each lot or portion of a lot. If we rightly understand the defendants' counsel, they also claim that, by reason of the vagueness and uncertainty in the description of the property in the petition, the circuit court acquired no jurisdiction at all to proceed in the case. But, aside from this, it is claimed that the sheriff had no power to sell the lot in question and the part of another lot in a lump, under a single judgment and levy for taxes, and that for this reason his deed is void. It is also contended that the sheriff's deed does not contain a description of the property which it attempts to convey to the plaintiff of sufficient certainty that it can be identified.

In our opinion, none of these positions are well taken. We will state and consider them separately, as we understand them. 1. Was the judgment against Walker in the back-tax suit void for want of jurisdiction? The defendants' counsel contend that it was, and they base their contention on the doctrine that, although the circuit court is a court of general jurisdiction, yet when it proceeds to exercise a special power created by statute, in a summary manner, contrary to the ordinary course of a court of common law or of equity, it is to be treated, in respect of the presumptions which support its jurisdiction when its judgments or decrees are collaterally assailed, as a court of special or limited jurisdiction; so that nothing will be presumed in favor of its jurisdiction, but all necessary jurisdictional facts must be made to appear by its record. This proposition of law is not at all questioned. It was considered at length by this court in the recent case of Werz v. Werz (11 Mo.App. 26); and although one of the judges disagreed as to the result, there was no disagreement as to this general proposition. There could not have been; it is a wellsettled principle of jurisprudence. The rule there laid down was in conformity with the rule laid down by the supreme court of the United States in Galpin v. Page (18 Wall. 364), that where a court of general jurisdiction is clothed by statute with a special power or jurisdiction, which it proceeds to exercise, not in a summary manner, but in the same manner in which it exercises its general jurisdiction, the same presumptions attend its jurisdiction, in the silence of its record, when its judgments or decrees are collaterally assailed, as in the case of judgments or decrees rendered in the exercise of its ordinary and general jurisdiction.

We have then to consider whether a suit brought in the circuit court to collect delinquent taxes under the act of April 12, 1877, is a suit in which the circuit court exercises the jurisdiction conferred by that statute in the way it exercises its ordinary jurisdiction, or in a special or summary manner, in derogation of the common law. There can be no doubt whatever as to how this question must be answered. There is no difference whatever between such a proceeding and an ordinary suit in the circuit court, commenced, in case of resident defendants, by summons, and in case of non-resident defendants, by attachment and publication. The same incidents attend the progress of such a suit as those which attend the progress of ordinary suits in the circuit court. The proceeding is begun by a formal petition. A summons issues against the owner of the property. If he can be found within the jurisdiction, it is served upon him, and he thus has actual notice of the proceeding. If he cannot be found within the jurisdiction, it is so returned, and then a formal publication is made in a newspaper, notifying him of the commencement of the suit against him, and of its general objects and purposes. He is allowed to appear in court and plead, answer, or demur to the petition. A formal trial is had, and, if judgment is rendered against him, he has his right of appeal to this court or to the supreme court, as in other cases. This is apparent from the language of the statute itself. Section 6 provides that “all notices and process in suits under this act shall be sued out and served in the same manner as...