Coombs v. Crabtree

• Decision Date: 29 June 1891
• Citation: Coombs v. Crabtree, 105 Mo. 292, 16 S.W. 830 (Mo. 1891)
• Parties: COOMBS et al. v. CRABTREE.
• Court: Missouri Supreme Court

16 S.W. 830

105 Mo. 292

COOMBS et al. v. CRABTREE.

Supreme Court of Missouri, Division No. 1.

June 29, 1891.

TAX-DEED — VALIDITY — COLLECTOR'S AFFIDAVITS — TAX-SALES — PUBLICATION OF NOTICE — DEED.

1. Where the order of publication of notice has been properly served, the judgment in a suit for delinquent taxes cannot be attacked collaterally because of defect in the collector's affidavit for the order of publication.

2. The collector's affidavit for an order of publication of notice need not aver that service could not be had on the non-resident owner by ordinary summons, as the law assumes that service by ordinary summons cannot be had on a nonresident.

3. Under Gen. St. Mo. 1865, c. 164, § 17, providing that in delinquent tax-suits "every order against non-resident, absent, or unknown defendants shall be published in some newspaper published in this state," such orders need not be shown to have been published in a newspaper published "and circulated" in the county in which the proceedings were had, as required by Gen. St. 1865, c. 174, § 5, in other cases.

4. The fact that in a tax-deed the dollar-mark is omitted in the tabular statement of the amount found by the judgment to be due on each tract does not vitiate the deed, where the aggregate amount in dollars and cents is written at length in the deed and judgment.

Appeal from circuit court, Barton county; D. P. STRATTON, Judge.

Thomas & Hackney, for appellants. Buler & Timmonds, for respondent.

BRACE, J.

This is an action in ejectment for a tract of land in Barton county, in which defendant obtained judgment, and the plaintiffs appeal. Thomas Carr is the common source of title. It is conceded that plaintiffs are entitled to recover unless the title of said Carr was divested by virtue of two sheriff's deeds, of date 26th of April, 1879, from Dennis Springer, sheriff of said county, one to R. A. Ford and one to G. F. Burkhart, executed in pursuance of a sale under execution on a judgment in a suit for delinquent taxes rendered by the circuit court for said county in favor of the state, at the relation of Earll, collector of said county, against the land in question, in which said Carr was the party defendant. The points made are:

First. That the affidavit of the collector for an order of publication of notice is insufficient, in that it is made on information and belief. We held in Allen v. Ray, 96 Mo. 542, 10 S. W. Rep. 153, that such an affidavit was a substantial compliance with the requirements of the statute. Besides, the order having been properly served, the judgment is not subject to collateral attack for a defect in the affidavit. Burnett v. McCluey, 92 Mo. 230, 4 S. W. Rep. 694. In Troyer v. Wood, 96 Mo. 478, 10 S. W. Rep. 42, the publication was not directed against Troyer; consequently there was no service at all on Troyer, and the judgment against him was a nullity. These decisions are entirely consistent. This point is not well taken. A further objection is made, that the affidavit should have shown by direct averment that service could not be had upon the non-resident owner by ordinary summons. This contention finds no support in the statute under which these proceedings were had, by which it was provided "that all notices and process in suits under this act shall be sued out and served in the same manner as in civil actions in circuit courts; and, in case of suits against...