Charles v. Morrow

• Decision Date: 27 January 1890
• Citation: 99 Mo. 638,12 S.W. 903
• Parties: CHARLES et al. v. MORROW.
• Court: Missouri Supreme Court

12 S.W. 903

99 Mo. 638

CHARLES et al. v. MORROW.

Supreme Court of Missouri.

January 27, 1890.

LIMITATION OF ACTIONS — ACTIONS AGAINST NON-RESIDENTS.

1. Rev. St. Mo. 1879, §§ 3225, 3226, relating to limitations in cases of certain equitable titles, have no application to ordinary actions of ejectment, where the contest is between two purely legal titles.

2. In actions against unknown parties, the court acquires no jurisdiction, unless the statement in regard to their interest is verified under oath, as required by Rev. St. Mo. 1879, § 3499, relating to publication against unknown parties.

Appeal from circuit court, Newton county; M. G. McGREGOR, Judge.

Plaintiffs brought ejectment for the W. ½ of the S. W. ¼ section 4, township 26, range 33, Newton county. Answer, general denial. On trial it was agreed between the parties that both claimed title under John W. Charles, who entered and purchased the land in question from the United States. Plaintiffs' evidence in chief consisted of exemplification of the application of John W. Charles, of Adams county, Miss., to the United States land-office, for location of land-warrant on this land, dated May 23, 1857, with indorsement showing its location, and the subsequent issue of patent, June 10, 1859. Also, deposition of Emily Charles, Andrew Charles, Sarah J. Swann, showing that John W. Charles was a bachelor, residing in Natchez, Adams county, Miss., when he entered this land; that he removed to the city of New York after the war of 1861 arose, and died there, December 25, 1877, without issue, and intestate, leaving as his only heirs two brothers and a sister, Andrew Charles, Sarah J. Swann, plaintiffs herein, and George E. Charles; that George E. Charles died February 25, 1881, leaving a will which was probated in New York, and by which plaintiff Emma Charles, his widow, took his interest in his land. Also, a duly-certified copy of the will of George E. Charles, above referred to, with judgment of the surrogate court in New York, showing probate thereof March 14, 1881; said will, etc., having been recorded in Newton county, Mo., November 9, 1885. At the conclusion of plaintiffs' case as above, defendant prayed the court to declare the law as follows: "The court declares the law to be that, under the evidence introduced by plaintiffs in this case, they are not entitled to recover; that there is no evidence before the court that the John W. Charles through whom plaintiffs claim owned the land in controversy. If the court finds from the evidence that neither John W. Charles nor plaintiffs have been in possession of the land in controversy for thirty consecutive years, and that neither John W. Charles nor plaintiffs have paid taxes on the same during all that time, and that the title to said land has passed from the government more than ten years previous to February 27, 1874, then plaintiffs cannot recover in this action." The court refused to do so. Defendant then offered in evidence a sheriff's deed, dated August 11, 1881, purporting to be by James R. McElhany, sheriff of Newton county, to John M. Sherwood, and reciting that the state ex rel. Hiram J. Cummins, collector of said county, obtained judgment in the circuit court of said county, May 2, 1881, against "the unknown heirs of John W. Charles, and all other persons interested," (no names being set out, or reason given why,) "for the sum of fourteen and 71-100 dollars, for certain delinquent state, county, and special taxes and interest, as hereinafter set forth, assessed and found by said court to be due and unpaid upon the following described real estate," (setting out description of the land sued for in this case, and mentioning taxes for 1872, 1873, and 1875,) "and also certain costs which have been taxed in the sum of eighteen dollars and eighty cents; which said several sums of taxes, interest, and costs were declared by said court to be a lien in favor of the state of Missouri upon the above-described tracts of real estate." This deed further recites issue of special execution upon said judgment against "the said unknown heirs of John W. Charles, and all other persons interested," (no names being given,) directing sale of said real estate to satisfy the judgment; that notice and sale were duly made and had; and that John M. Sherwood became the purchaser of the land for $26. The plaintiffs objected to this deed because void on its face, in not purporting to be under judgment against any definite person, nor being otherwise in conformity to law; but the court overruled this objection, and admitted the deed in evidence. To which action of the court below, plaintiffs duly excepted at the time. Defendant also put in evidence a deed of quitclaim from Sherwood to Isaac Lewis, dated September 6, 1881, and offered evidence tending to prove that neither John W. Charles nor plaintiffs have ever been in actual possession of, or paid taxes upon, this land, which plaintiffs objected to as incompetent and irrelevant; but the court overruled the plaintiffs' objection, and admitted the evidence. To which action of the court, plaintiffs duly excepted at the time.

By the way of rebuttal, plaintiffs, to impeach the sheriff's deed, and the judgment therein recited, introduced "all the record and proceedings in the tax-suit," as follows: (1) The petition of the state ex rel. the collector, expressing the action as against "the unknown heirs of John W. Charles, deceased, and all defendants, being signed only by relator's attorney, but otherwise framed as usual, except that at its conclusion, just before the prayer for relief, it is said, by way of description of defendants: "Plaintiff's said attorney and H. J. Cummins, said collector, further state: That they believe there are persons interested in the subject-matter of this petition, whose names they cannot insert therein, because they are not known to plaintiff and affiants. That the said unknown parties are the heirs at law of John W. Charles, deceased, and...