Childers v. Schantz

Decision Date19 February 1894
Citation25 S.W. 209,120 Mo. 305
PartiesCHILDERS v. SCHANTZ et al.
CourtMissouri Supreme Court

Ejectment by J. H. Childers against Fred Schantz and others. Judgment for defendants. Plaintiff brings error. Affirmed.

Wm. O'Mead, for plaintiff in error. Burton & Wright, for defendants in error.

BLACK, C. J.

This was an action of ejectment for 160 acres of land in Vernon county. James H. Godsey owned the land at the time of his death. He died in 1862, leaving a widow, Elizabeth, and two sons, namely, William E. and James H. Godsey. The widow married John Banner. She and Banner and the two sons conveyed the lands to the plaintiff in this suit by a quitclaim deed dated the 4th February, 1888. The defendants, for title, rely upon the following proceedings and deed: In 1880 the collector commenced a suit against William Godsey, Elizabeth Banner, and John Banner, her husband, and the unknown heirs of James H. Godsey, to enforce the state's lien for taxes for the year 1878. The defendants were notified by a vacation order of publication. At the return term, — that is to say, November term, 1880, — and after the order of publication had been made, the petition was amended by inserting the name of J. F. Norman as an additional defendant, and he entered his appearance. Judgment was then entered against all the defendants, it being a judgment by default as to all except Norman, who had appeared. The land was sold under a special execution issued on this judgment, and Norman became the purchaser, and received a sheriff's deed, dated 5th May, 1881. All the title acquired by Norman passed through several persons by warranty deeds to John C. Taylor, who conveyed to the defendants by warranty deed dated in August, 1885. At that date the land was open prairie, unoccupied, and had never been fenced or broken. The plaintiff, to defeat the above-mentioned sheriff's deed to J. F. Norman, produced in evidence another sheriff's deed to William R. Crockett, dated the 7th November, 1878, based upon a special execution issued upon a judgment rendered upon an order of publication in a suit of the collector against James H. Godsey and James L. Nichols, to enforce the state lien for delinquent taxes for the years 1869 to 1876, and a quitclaim deed from Crockett to J. F. Norman. These deeds were recorded in June, 1880. James H. Godsey died, it will be seen, some 15 years before the commencement of the last-mentioned tax suit; and Nichols, the other defendant, had no interest in the property.

1. We will first notice the objections made to the sheriff's deed to J. F. Norman, upon which the defendants rely for title. That deed stands upon the judgment in the suit instituted by the collector against William Godsey, Elizabeth Banner, and John Banner, her husband, and the unknown heirs of James H. Godsey. The petition in that case, as has been said, was amended by adding the name of J. F. Norman as a defendant after the publication against the other defendants had been made; and the first objection is that there should have been a new order of publication. This case is unlike that of Janney v. Spedden, 38 Mo. 395, to which we are cited. That was a suit to enforce a vendor's lien. Janney had been notified by publication only, and the plaintiff then dismissed his petition as to all that part asking for the enforcement of the lien, and on the order of publication took a personal judgment against Janney. The court held that the object and nature of the suit was wholly changed by discontinuing as to that part of the petition seeking the enforcement of a vendor's lien, and that the personal judgment rendered was void. Here the plaintiff amended by adding a new defendant, nothing more; the cause of action remained the same after as before the amendment. As the amendment did not in the least change the cause of action, it was not necessary to take out a new order of publication.

The next objection to this deed is that the order of publication is worthless, because it did not notify the defendants when to appear. The papers and files in that case were lost when this one was tried. That suit was commenced in 1880. The person who was deputy clerk at the time testified that a book was kept in the office, known as the "Book of Orders of Publication in Vacation;" that the book contained printed forms, with blank spaces for names of parties, description of land, dates, etc.; and that it was his custom to issue orders of publication, and then copy them in this book, and send the originals, signed and under the seal of the court, to the printer. The copy of the order of publication found in this book, produced in evidence, is conceded to be formal, except that part which is in these words: "And unless they be and appear at the next term of said court, to be holden at the courthouse in the city of Nevada, in the county and state aforesaid, on the first Monday in November, 187 , and on or before," etc. The deputy clerk testified further that he was satisfied...

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