Chamberlain v. Blodgett

• Citation: 10 S.W. 44,96 Mo. 482
• Parties: CHAMBERLAIN v. BLODGETT.
• Decision Date: 20 December 1888
• Court: United States State Supreme Court of Missouri

10 S.W. 44

96 Mo. 482

CHAMBERLAIN v. BLODGETT.

Supreme Court of Missouri.

December 20, 1888.

TAXATION — NOTICE OF TAX SALE — ERROR IN NAME — IDEM SONANS.

Under Rev. St. Mo. § 3494, providing that in proceedings to enforce a lien against the property of a non-resident, he must be named in the order of publication, a tax sale of land owned by "M. B. Millen," under a publication of notice to "M. B. Miller," is void, the two names not being idem sonans; and it is immaterial, as against a grantee of "Millen," that the name of "Miller" appears on the tract-books of the county as owner of the land. Following Troyer v. Wood, ante, 42.

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

Ejectment by C. W. Chamberlain against C. A. Blodgett. Judgment for defendant, and plaintiff appeals.

George Hulbert, for appellant. Norman Gibbs and T. M. Allen, for respondent.

SHERWOOD, J.

Ejectment for S. E. ¼ of section 3, township 24, range 28, in Barry county. Plaintiff relies upon tax proceedings in Barry circuit court, instituted against M. B. Miller, resulting in sale of the land aforesaid, and deed by the sheriff to Talbert and Hesse, under whom plaintiff claims by mesne conveyances. The county tract-book showed for more than 10 years past that the property in suit had been located and entered in 1857, by said M. B. Miller. The defendant, Blodgett, is the tenant of Allen, who bought the land and received a deed from McPherson B. Millen, the patentee from the United States government in 1860, which patent was put to record in 1885, after the occurrence of the tax sale. The deed of the patentee to Allen is signed "M. B. MILLEN." Under the provisions of the statute, where proceedings are instituted against a non-resident, in order to the enforcement of a lien against his property, he must be named in the order of publication. Section 3494. If not thus named, and named correctly, the substituted service of process is as void and valueless as if a blank had been left where the wrong name was inserted. A case of this sort does not rest upon the same footing, by any means, as the service of personal process upon the right party by the wrong name. Such service as that is generally held to be good, (Wade, Notice, § 1318;) but the distinction between the two methods of service and their legal effect is most obvious. In the case of substituted service, or service by publication, no one is served who is not named, or, what amounts to the same thing, who is incorrectly named; while in case of personal service, the right party is actually served by delivery of the writ, though he is not correctly named therein. The publication...