Childers v. Schantz
| Decision Date | 19 February 1894 |
| Citation | 25 S.W. 209,120 Mo. 305 |
| Parties | Childers, Plaintiff in Error, v. Schantz et al |
| Court | Missouri Supreme Court |
Error to Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.
Affirmed.
Wm. O Mead for plaintiff in error.
(1) The first declaration of law asked for by the plaintiff should have been given; the court had and acquired no power or jurisdiction in the tax proceedings, under which the defendants hold, except by the order of publication, and that only notified the defendants in such tax proceedings of the petition then on file, and when the amended petition was filed it superseded the one of which they had notice and the court could not proceed further without again serving them with process. R. S. 1889, secs. 2107, 2108; Ward v Davidson, 89 Mo. 445; Tecknor v. Voorhies, 46 Mo. 110; Janney v. Spedden, 38 Mo. 395. (2) When Crocket bought the land in question at tax sale under the judgment of the circuit court, and conveyed to Norman the grantor of the defendants and both deeds were put to record there was such assertion of title and possession as the owners of the adverse claim of title could maintain an action of ejectment against Norman and his motion setting up such claim at the time of the sale by the sheriff to him and procuring the order directing the sheriff to pay him the amount of his bid in excess of the judgment and costs, was such claim and possession as imposed upon him the duty of paying the taxes for which he had bought the land and by such purchase he did not acquire any title, but such purchase and deed only operated as a payment of the taxes, and the second, third and fourth declarations of law asked by the plaintiff, should have been given. Revised Statutes, 1889, sec. 7698; Black on Tax Titles, 137, 147, 148; Smith v. Phelps, 63 Mo. 585; St. Joseph v. Saville, 39 Mo. 460; LeMoyne v. Harding, 132 Ill. 23; Lacy v. Davis, 66 Am. Dec. 524; Blake v. Howe, 15 Am. Dec. 581. (3) The service by publication shown in the tax proceedings, under which defendants hold, is made returnable according to the record on the --- Monday in November, A. D. 187 --. The presumption of law is, that it was published as made and such order of publication is as much a part of the record as the judgment and is of equal dignity, and by it the judgment may be impeached as having been rendered without jurisdiction or power in the court to do so. Hewett v. Weatherby, 57 Mo. 276; Brown v. Langlois, 70 Mo. 226; Otis v. Epperson, 88 Mo. 131.
Burton & Wight for defendants in error.
(1) The amendment of the petition by interlineation, making J. F. Norman a party defendant, did not change the object and nature of the suit, and no other or different judgment was rendered against the defendants notified by order of publication than that asked for in the original petition, and of which notice was given in said order of publication, hence no new order of publication was necessary. Janney v. Spedden, 38 Mo. 395; Holland v. Adair, 55 Mo. 40. (2) The judgment in State ex rel. v. James H. Godsey and James L. Nichols, rendered on May 16, 1878, was an absolute nullity for the reason that said James H. Godsey had been dead for sixteen years. (It was admitted that he died in 1862.) Crosley v. Hutton, 98 Mo. 196; Graves v. Ewart, 99 Mo. 13. Nichols never had any interest in the land. This is admitted by plaintiff in his statement. (3) Therefore, W. R. Crocket did not obtain any title to the land in question by deed of McGinnis, sheriff, of November 7, 1878, and his quitclaim deed of June 2, 1880, to J. F. Norman conveyed nothing. Crosley v. Hutton, 98 Mo. 196. (4) Said J. F. Norman never took possession. It is admitted that the land was unoccupied until the defendants in this cause took possession in August, 1885, hence it follows that J. F. Norman had a right to purchase the land at the sale upon the judgment in State ex rel. McGowan v. Elizabeth Banner et al. Atkinson v. Dixon, 89 Mo. 464; Coxe v. Gibson, 27 Pa. St. 160; Blackwood v. Van Vleit, 30 Mich. 118; Lybrand v. Haney, 31 Wis. 230. (5) The judgment roll being lost, the testimony of Rexrode, deputy clerk, was competent, from which it appears that the order of publication did designate the first Monday in November, 1880, and that the blank in the book was not changed through oversight. Miner v. Shipley, 94 Mo. 106; McClanahan v. West, 100 Mo. 309.
This was an action of ejectment for one hundred and sixty 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 fourth of 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 fifth of 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 seventh of 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's 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 fifteen 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 the date was filled out in the order sent to the...
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