Cruzen v. Stephens

• Citation: 27 S.W. 557,123 Mo. 337
• Parties: Cruzen v. Stephens et al., Appellants
• Decision Date: 19 June 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 557

123 Mo. 337

Cruzen v. Stephens et al., Appellants

Supreme Court of Missouri, First Division

June 19, 1894

Appeal from Daviess Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Affirmed.

J. E Wait for appellants.

(1) -- Fisher is no name, and the advertisement, order of publication and judgment are fatally defective. Troyer v Wood, 96 Mo. 481; Skelton v. Sackett, 91 Mo 379. (2) Publication of notice must be for four weeks, and not four insertions. State ex rel. v. Tucker, 32 Mo.App. 620, and the authorities therein cited; R. S. 1889, sec. 2028. (3) The court must be satisfied that the defendants are nonresidents, or that process can not be served. R. S., sec. 2020. This means judicially satisfied (by evidence), sec. 2024, R. S. 1889. (4) A judgment reciting due publication, must yield to the notice itself. Adams v. Cowles, 95 Mo. 501. (5) And equity will relieve from the judgment, notwithstanding it finds due publication. Freeman on Judgments [Ed. 1892], sec. 495. (6) The finding in the judgment that the "defendants were duly notified, according to law," is wholly insufficient, and gives the court no jurisdiction. Moore v. Harris, 91 Mo. 414; Einstein v. Gay, 45 Mo. 62. (7) The deed was fatally defective. It was not sufficient for a common law conveyance, and does not purport to convey either the interest of the state or defendants. Blackwell on Tax Titles, sec. 435, cited and approved in Einstein v. Gay, above cited. (8) All the records of the tax suit may be used to attack the deed. Kinney v. Forsythe, 96 Mo. 414. (9) Where a case is tried on a certain theory below, the judgment ought not to be affirmed, because of a technical or doubtful pleading, when not raised in the court below, where it could have been amended. Leigh v. Ins. Co., 37 Mo.App. 542. (10) Party in possession need not bring his suit within three years to avoid the deed, but may attack it when suit is brought against him. Spurlock v. Dougherty, 81 Mo. 171.

Alexander & Richardson for respondent.

(1) The judgment of the circuit court in the tax suits is conclusive on defendants as to the validity of the assessment, and can not be attacked in this proceeding. State ex rel. v. Hunter, 98 Mo. 386; Allen v. Ray, 96 Mo. 545; Hill v. Sherwood, 96 Mo. 125; Jones v. Driskill, 94 Mo. 190; Allen v. McCabe, 93 Mo. 138; Bunn v. Walker, 85 Mo. 262; Wellshear v. Kelley, 69 Mo. 343. (2) The objection that the judgment in a back tax suit is not against each tract separately for the amount found to be due on each, while erroneous, and subject to correction on error or appeal, it is not void; and the circuit court having jurisdiction of the person and subject-matter, the title of the purchaser at execution sale under such judgment is not affected by such error. Jones v. Driskill, 94 Mo. 190. (3) The order of publication was regularly made. R. S. 1889, sec. 7682. In this case a summons was first issued, and returned, non est, none of the defendants being found in Daviess county. The return of the sheriff is conclusive. State ex rel. v. Finn, 11 Mo.App. 400; same case, 87 Mo. 310. (4) The court in making the order of publication acts judicially, and when regularly made, the order of publication can not be attacked collaterally. State ex rel. v. Finn, supra; Schmidt v. Niemeyer, 100 Mo. 207; Payne v. Lott, 90 Mo. 676; Wellshear v. Kelley, 69 Mo. 343; Brawley v. Ranney, 67 Mo. 280; Rumfelt v. O'Brien, 57 Mo. 569. A domestic judgment, rendered by a court of general jurisdiction, can not be impeached by the parties to it, merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally conclusive on the parties thereto, whether it recites, or whether it fails to recite, that jurisdiction has been acquired. McClanahan v. West, 100 Mo. 309; Allen v. McCabe, 93 Mo. 138. (5) The judgment in the tax suit is valid against William H. Lyle, George W. Lyle and Etta R. Fisher. Although John W. Fisher had been made party to the tax suit, and if for any reason the judgment was void as to him, it would still be binding as to the other parties thereto. The rule that a judgment, if void as to one, is void as to all, has no applicability to cases like this, where judgment is as to land. Dickerson v. Chrisman, 28 Mo. 134; St. Louis v. Lanigan, 97 Mo. 180; Enos v. Capps, 12 Ill. 255.

Barclay, J. Black, C. J., and Brace and Macfarlane, JJ., concur.

OPINION

Barclay, J.

This is an action of ejectment for a tract of land in Daviess county. The petition is in ordinary, statutory form. R. S. 1889, sec. 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 in 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 non-residents of this state, so that the ordinary process of law can not be served," etc., as the order states.

No affidavit of nonresidence of defendants 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 can not be had by ordinary summons, shall be the same as now provided by law in civil actions affecting real estate, etc. R. S. 1889, sec 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 can not be found, the court, being first satisfied that process can not be served," shall make an order of publication against such defendants. Revised Statutes, 1889, section 2024, same as section 3496 in 1879.

Upon the return of "not found," on the summons to defendants, the court had power to grant the order of publication "being satisfied," as stated in the section last quoted.

The fact that the court made such an order, after the return of not found, is sufficient of itself to indicate that it was "satisfied" of the required fact. For it should be assumed of a court, in the absence of any showing to the contrary, that it acts in conformity to, not in violation of, the law.

Verbal testimony was put in by defendants, at the trial of this case, with a view to prove that the court made the...