Cruzen v. Stephens

• Decision Date: 19 June 1894
• Citation: 27 S.W. 557
• Parties: CRUZEN v. STEPHENS et al.
• Court: Missouri Supreme Court

27 S.W. 557

CRUZEN v. STEPHENS et al.

Supreme Court of Missouri, Division No. 1.

June 19, 1894.

TAX JUDGMENT — VALIDITY — NOTICE BY PUBLICATION — NONRESIDENT OWNER — COLLATERAL ATTACK.

1. Service of process by publication, addressed to "Etta R. Fisher and ____ Fisher, her husband," is valid, as against a collateral attack.

2. Notice by publication in a tax suit is sufficient, under Missouri statutes, where it names the defendants so as to clearly indicate their identity.

3. Under a law authorizing notice by publication on a return of "Not found," "the court being first satisfied that process cannot be served," an order of publication, granted upon the unsworn statement of an attorney, is not for that reason void in a collateral proceeding.

4. Under such a law, the fact that the court acted by making the order is enough to indicate that it was "satisfied" of the required fact, and verbal testimony that the court acted upon an insufficient showing is incompetent.

5. In tax suits in Missouri, notices and process are required to be served as in ordinary civil actions affecting real estate.

6. Surplusage in an order of publication does not vitiate it, if it be otherwise valid.

7. The decision in Haywood v. Russell, 44 Mo. 252, as to time of publication of notices, followed, as a rule of property.

8. A tax judgment is not void collaterally because each tract of land is not especially charged with the items of tax applicable to it only.

9. The sheriff's deed under a tax judgment conveying all the estate which the grantor might sell under the judgment, held valid, in respect of form, under the Missouri statute.

(Syllabus by the Judge.)

Appeal from circuit court, Daviess county; Charles H. S. Goodman, Judge.

Action by Nathaniel G. Cruzen against J. W. Stephens and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. E. Wait, for appellants. Alexander & Richardson, for respondent.

BARCLAY, J.

This is an action of ejectment for a tract of land in Daviess county. The petition is in ordinary statutory form. Rev. St. 1889, § 4631.

The original defendant, Mr. Stephens (who was sued alone), answered, admitting his possession as tenant of the Lyle heirs. The latter also appeared and became parties defendant on their motion, viz. Messrs. W. H. Lyle and George W. Lyle, and Mrs. Etta R. Fisher and Mr. John Fisher, her husband. They filed a separate answer, alleging possession of the land by their tenant Mr. Stephens, and denying the other allegations of the petition. They then charged that plaintiff's claim of title was under a judgment and sale in a certain tax suit, entitled State ex rel., and to the use of, N. B. Brown against "defendants in this answer," which suit terminated in the same court at the February term, 1889, and that plaintiff had no other interest in the property. The answer then continues thus: "That defendants herein are and have ever been, since 1880, residents of Illinois and had no information of said suit. That there was no allegation in said petition for taxes that the defendants were nonresidents, nor was there any order of publication by this court, nor was the tax book under which said suit was brought ever examined and completed as required by law, and the said suit and execution, and the sale thereunder, was and is wholly void; and defendants therefore pray that the said deed be set aside, and the cloud which is so made thereby on defendants' title be removed; that the defendants have title to said land, subject to a certain mortgage not yet foreclosed. And defendants ask for such further orders, judgments, and decrees as they may be entitled to." To this answer the plaintiff filed a reply consisting of a general denial. Upon the trial it was admitted that the defendants Lyle and Fisher were the owners of the land, and that Stephens was their tenant, unless the proceedings in the tax suit and sale thereunder had transferred the title to plaintiff, in which event he should recover. The monthly rents and profits were also agreed upon. It was further stipulated that the sheriff's deed to plaintiff under the tax sale should be considered in evidence, subject to be finally received or rejected by the court after hearing all the other evidence, and the objections thereto by defendants. The sheriff's deed was then produced in evidence, and plaintiff rested. Defendants then offered the court record, and all the papers in the tax suit. It will not be necessary to set them out at length. The points at which fatal deficiencies therein are said to appear will be noted in the course of the opinion in connection with the discussion of the defendants' objections. At the close of the testimony the court overruled the objections to the sheriff's deed, and gave judgment for plaintiff. Defendants then appealed, after taking the usual steps for a review.

1. The first objection to the sheriff's deed under the tax judgment is that the defendants in the judgment were not properly brought into court, because the order of publication was granted without proper foundation. The record shows that a writ of summons was issued January 7, 1889, to all the defendants. The sheriff's return upon the writ was this: "Non est. None of the within-named defendants found in my said county." Thereupon, the court ordered publication, February 12, 1889 (at the February term), "it appearing to the court, among other things, that the defendants are nonresidents of this state, so that the ordinary process of law cannot be served," etc., as the order states. No affidavit of nonresidence of defendant was filed, nor does the petition in that suit allege that fact. Under the revenue law, all notices and process in suits for the collection of back taxes are required to be sued out and served in the same manner as in civil actions in the circuit court, and the proceedings against nonresident or other parties on whom service cannot be had by ordinary summons shall be the same as now provided by law in civil actions affecting real estate, etc. Rev. St. 1889, § 7682 (same as section 6837 of 1879). The sufficiency of the order of publication is hence to be determined by the rule applicable to that subject in the Code governing ordinary actions. The Code provides that in a case to enforce a lien on real property, when "summons shall be issued against any defendant, and the sheriff to whom it is directed shall make return that the defendant or defendants cannot be found, the court, being first...