Corrigan v. Schmidt

• Decision Date: 09 January 1895
• Citation: 28 S.W. 874,126 Mo. 304
• Parties: Corrigan et al. v. Schmidt et al., Appellants
• Court: Missouri Supreme Court

28 S.W. 874

126 Mo. 304

Corrigan et al. v. Schmidt et al., Appellants

Supreme Court of Missouri, Second Division

January 9, 1895

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

""M. Hilton for appellants.

(1) A middle letter is no part of a name, and its omission is not a misnomer or variance. ""Smith v. Ross, 7 Mo. 463; ""Orme v. Shephard, 7 Mo. 606; ""Tallmadge v. Franklin, 5 Johns. 84; ""Keene v. Mead, 3 Pet. S.Ct. U.S., p. 1. (2) When personal service is had on a defendant, jurisdiction is obtained, although he may be sued by the wrong name; and even when summoned by publication, it is sufficient to employ the Christian name by which he is generally known. ""Steinman v. Strimple, 29 Mo.App. 478. (3) Where the name by which the defendant was published is ""idem sonans with his real name, he was properly served; and when they sound nearly alike as popularly pronounced, they are ""idem sonans. State v Pullens, 81 Mo. 387. (4) "Possibly the fact that the sheriff sold the entire addition in a lump would have been ground for setting aside the sale, had timely proceedings been taken for that purpose, but the sale is not void. Such a complaint would not be heard, even in a proceeding to set aside the sale at this late day and after the rights of third persons have attached; much less is the sale void or voidable for any such reason." Freeman on Executions, sec. 307; ""Bouldin v. Ewart, 63 Mo. 330. There may be laches within the statute of limitations. Minors may be guilty of laches. ""Kline v. Vogel, 90 Mo. 239; ""Fuller v. Montague, 53 F. 204. (5) The answer of the minors in the tax suit by their guardian ""ad litem was sufficient. ""Pevely v. Skinner, 33 Mo. 28; ""Baldwin v. Whaley, 78 Mo. 186; Freeman on Judgments, sec. 487. (6) A purchaser at a tax sale under the law of 1877, acquires whatever title defendant in the execution had and none other. It follows that where there are several tenants in common, one alone may be divested of his title at a tax sale. ""Watt v. Donnell, 80 Mo. 195; ""Lott v. Payne, 90 Mo. 676; ""Boyd v. Ellis, 107 Mo. 394; ""Campbell v. Gas Light Co., 84 Mo. 366. (7) Plaintiff's bill should have been dismissed as to any one of them not sued or served as defendant in the tax suit, for the interest of such party was not affected by the tax sale, and he or she had a clear remedy in ejectment. ""Humphreys v. Milling Co., 98 Mo. 542; ""Fontaine v. Hudson, 93 Mo. 62.

""J. E. & J. F. Merryman for respondents.

(1) The tax sale was void as to John O. Corrigan, who was proceeded against as Owen Corrigan. ""Skelton v. Sackett, 91 Mo. 379. (2) Elizabeth Corrigan was not a party to the suit and had no notice of it, but one Elisha Corrigan was made a party and the evidence shows that Patrick Corrigan had no child by the name of Elisha. (3) The property should have been sold in parcels. ""Gordon v. O'Neil, 96 Mo. 350; ""Nelson v. Brown, 23 Mo. 13; ""State ex rel. v. Yancy, 61 Mo. 399.

OPINION

Burgess, J.

This is an action to set aside a judgment for taxes and sale thereunder and to set aside a deed by John J. Kane, the purchaser at said sale, to the defendants Brownley and wife, and from Brownley and wife to defendants Schmidt and judgment for possession of the premises, and monthly rents and profits against said Schmidts. The salient facts of the case as disclosed by the record are about as follows:

The mother of the plaintiffs died in 1879, and their father, Patrick J. Corrigan, died on the seventh day of October, 1880, leaving the following children his only heirs at law: Mary A., aged fifteen years; John O., aged fourteen years; Francis J., aged thirteen years; Leonard, aged ten years, and Elizabeth F. Corrigan, aged four years. At the time of his decease, Patrick J. Corrigan owned the following real estate, situate in the city of St. Louis, and described as follows: The south half of lot 12 in Gimblin's addition, now block 4255, city of St. Louis on Bellefontaine road, having a front on said road of fifty-nine feet and six inches (59 ft. 6 in.) and four hundred and ninety-eight feet and two inches in depth (498 ft. 2 in.), and upon which lot he had built a blacksmith and wagon shops of the value of $ 700 fronting on the Bellefontaine road, now Broadway street; and on the other end of the lot, fronting on Church street, he built a dwelling house, a brick smokehouse, stable and other outhouses.

On the twelfth day of October, 1882, the defendant Nathaniel C. Hudson as collector of the revenue for the city of St. Louis commenced an action in the circuit court of the city of St. Louis, state of Missouri, wherein the state of Missouri, at the relation and to the use of Nathaniel C. Hudson, collector of the city of St. Louis, in the state of Missouri, was the plaintiff, and Mary Corrigan, a minor; Frank Corrigan, a minor; Owen Corrigan, a minor; Leonard Corrigan, a minor; Elisha Corrigan, a minor, were defendants; on which a summons issued to the sheriff of the city of St. Louis and was returned executed on Mary Corrigan, Frank Corrigan and Leonard Corrigan, and a return of "not found" was made as to Owen Corrigan and Elisha Corrigan. And at the December term of said court and on the twenty-second day of January, 1883, an order of publication was granted by the court as to Owen Corrigan and Elisha Corrigan, which was published in the St. Louis Post-Dispatch, a newspaper printed in the city of St. Louis, and proof of the same was filed the twenty-eighth day of February, 1883, in said cause. The object of said suit was to enforce the lien of the state of Missouri for the delinquent taxes against said lot for the years 1878, 1879 and 1880 for the sum of $ 33.30 together with interest and costs.

At the April term of said court, 1883, Charles H. Chapin was appointed by said court guardian ad litem for Mary Corrigan, Frank Corrigan, Owen Corrigan, Elisha Corrigan and Leonard Corrigan, who filed answer as such guardian. On the twenty-third day of April, 1883, a judgment in rem was rendered in said cause for the sum of $ 46.65 together with costs of suit; and the said real estate, or so much thereof as would satisfy the debt and costs, was ordered to be sold. A special execution was issued on said judgment on the seventeenth day of May, 1883, commanding the sheriff of the city of St. Louis, Isaac M. Mason, that of the property hereinbefore described, or so much thereof as may be necessary, he cause to be made the judgment, interest and costs as aforesaid. And on the twenty-third day of June, 1883, said real estate was sold at public sale by the said defendant, Isaac M. Mason, as sheriff as aforesaid; and John J. Kane became the purchaser for the sum of $ 405. Mason returned the execution with an indorsement that he had sold the said real estate as sheriff as aforesaid for the sum of $ 405 to John J. Kane and that, after satisfying said judgment and costs, there remained a surplus in his hands of $ 296.75. And on the second day of July, 1883, the said John J. Kane having paid the purchase money, a deed was executed and acknowledged in open court by said Mason to the said John J. Kane of said real estate.

In the tax suit Elizabeth Corrigan was not made a party and had no notice of it, but one Elisha Corrigan was made a party, and the evidence is, that Patrick Corrigan had no child by the name of Elisha. The evidence further discloses the fact that John O. Corrigan was sued, if by any name, by the name of Owen Corrigan and there was a return of the officer as to him and also as to Elisha Corrigan of "not found," and they were notified, both Owen and Elisha, by an order of publication. From the time of the institution of the suit to the day of the rendition of the judgment Elizabeth Corrigan and John O. or Owen Corrigan were living in St. Louis county or the city of St. Louis.

The lot was over four hundred and ninety-eight feet (498 ft.) in depth, and on Church street, the west end of the lot, and on all the lots in that block, there were valuable residences, and on the cast end of the lot and most all the lots in the block there were business houses, fronting on Bellefontaine or Broadway. The evidence establishes the fact that the property was susceptible of division and some of the lots in the block located on both the north side and the south side have been divided and sold; the west end for residences and the east for business houses.

The court rendered a decree in favor of the plaintiff, setting aside the sheriff's sale, on the nineteenth day of June, 1893. Defendants Schmidt and wife filed a motion for a new trial, and defendant Kane filed a motion to reform the judgment and decree, claiming the money. On the twenty-fourth day of July the court overruled the motion for a new trial and also the motion of Kane to reform judgment, and at the same time there was a judgment and decree rendered reforming the first, and rendering another full and final judgment and decree in the case, in which the former judgment is changed by charging Schmidt and wife $ 6 per month rent instead of $ 10 as found in the former judgment, and also the court ascertained and found the value of the improvement made by Schmidt and wife on the property and rendered a decree in their favor for $ 135. In the judgment and decree of the court modifying the former decree all the parties acquiesced as there were no exceptions taken and no motion for a new trial filed by either of the parties with respect thereto.

John O and Mary A. Corrigan died subsequently to the rendition of the judgment in the tax suit, and before the institution of this suit, unmarried, leaving the plaintiffs their only heirs at law. ...