Davidson v. Laclede Land & Improvement Co.

• Decision Date: 06 December 1913
• Citation: 161 S.W. 686,253 Mo. 223
• Parties: DAVIDSON et al. v. LACLEDE LAND & IMPROVEMENT CO.
• Court: Missouri Supreme Court

161 S.W. 686

253 Mo. 223

DAVIDSON et al. v. LACLEDE LAND & IMPROVEMENT CO.

Supreme Court of Missouri. Division No. 1.

December 6, 1913.

1. APPEAL AND ERROR (§ 361)—MOTION TO DISMISS—AFFIDAVIT.

Defendant gave notice of motion to dismiss appeal, and the record showed the filing of an affidavit and the granting of the appeal thereon, but the record showed that the jurat which purported to have been executed by the circuit clerk was unsigned. Depositions showed that the clerk personally entered the minutes of the filing of the affidavit for appeal, its allowance, etc., and he testified that he did not know why the jurat was unsigned. Appellant's attorney testified positively that he signed and was sworn to the affidavit and filed the same with the clerk, and there was nothing except the absence of the clerk's signature tending to overthrow the testimony and the tendency of the record entries to corroborate it. Held that it sufficiently appeared that the affidavit was sworn to, and plaintiffs were not entitled to a dismissal of the appeal because the jurat did not contain the clerk's signature.

2. PLEADING (§ 403)—DEFECT—CURE BY ANSWER — CORPORATE CAPACITY.

Failure of plaintiffs' petition to allege defendant's incorporation was cured by an answer expressly admitting that defendant was a corporation.

3. QUIETING TITLE (§ 34)—PLEADING.

Where, in a suit to set aside a tax deed and to quiet plaintiffs' title, the petition did not disclose that defendant claimed alone through a fatally defective record, it did not appear that no cloud was cast on the title so that the petition was insufficient.

4. JUDGMENT (§ 490)—COLLATERAL ATTACK— NOTICE BY PUBLICATION.

Where, in tax proceedings, the petition for the enforcement of a tax lien on real property alleged the nonresidence of the defendants, including the common source of title, and there was no claim that the clerk did not actually issue an order of publication in the proper manner and form or that there was any error or defect in the time or place of its publication, and the judgment itself recited that all the defendants save one, although served with legal process, came not, but made default, plaintiffs in a suit to quiet title as against a deed executed pursuant to such proceedings could not question the sufficiency of the notice by publication on the ground that the order of publication was not spread of record by the clerk.

5. TAXATION (§ 776)—TAX DEED—CONSTRUCTION —PROPERTY CONVEYED.

A tax deed, after reciting the rendition of judgment finding that a specified sum was due for taxes on specified subdivisions of sections 33, 34, and 36 in township 32, etc., declared that an order had been made directing a sale "of said real estate or so much thereof as may be necessary to satisfy" the judgment, and that publication had been made, and the L. Land Company being the highest bidder for the following described real estate, to wit, the S. ½ of the N. E. ¼ of section 33, the W. ½ of section 34, and the E. ½ of section 36, township 32, range, etc., for $37.62 "the said last above described tract" was stricken off and sold to the L. Land Company for the sum bid therefor by it as above set forth. Held that such deed should be construed as conveying only the east half of section 36, that being the "last above described tract," and did not convey the other land mentioned in the description.

Appeal from Circuit Court, Reynolds County; Joseph J. Williams, Judge.

Action by M. J. Davidson and others against the Laclede Land & Improvement Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. B. Daniel, of Centerville, for appellant. R. I. January, of Centerville, and Arthur T. Brewster and Sam M. Brewster, both of Poplar Bluff, for respondents.

BLAIR, C.

This is an appeal from a judgment of the Reynolds circuit court setting aside and canceling a tax deed and quieting in respondents the title to the west half of section 34, twp. 32, range 2, west, in Reynolds county. In 1859 the land in question was patented to Joshua F. Hancock. Respondents are his widow and heirs, who claim a one-half interest, having conveyed a like interest to the remaining respondent, January. Hancock died intestate in 1889, owning the land involved here unless his title was devested by the proceedings culminating in the tax deed assailed.

As grounds for canceling the tax deed the petition alleges, among other things: (1) That in the tax suit Joshua F. Hancock was neither served with summons nor notified by publication; (2) that the judgment rendered included the tract in question and two others and was rendered against the whole; and (3) that the land involved was never stricken off and sold to appellant.

Respondents tender a return of all proper sums found due appellant and pray the court to "try, ascertain and determine the estate, title and interest of plaintiffs and defendants, respectively," in the land in question, that the tax deed be set aside, the interests of the respective parties adjudged, and for general relief.

Appellant, by its answer, admitted its incorporation and claim of title, denied the other allegations of the petition and pleaded the bar of the ten years statute of limitation.

On the trial it was admitted that Joshua F. Hancock entered the land in question and is the common source of title; that respondents, other than R. I. January, are the sole heirs of Joshua F. Hancock and have executed deeds to January conveying to him one-half of whatever interest they took, as such heirs, in the lands involved. Respondents called a witness whose testimony tended to show no order of publication in the tax suit had ever been spread of record. Appellant, over objections, offered the tax deed. Respondents then offered the pleadings and judgment in the tax suit.

1. A motion to dismiss the appeal has been filed. The ground of the motion is that the affidavit for appeal was not sworn to. This rests upon the fact that the jurat is not signed by the clerk or other officer. Notice of the motion was given January 14, 1913, the case being set for argument here January 20, 1913. The record of the trial court shows the filing of an affidavit for appeal and the granting thereon of an appeal to this court December 17, 1909. Depositions have been taken and are on file which disclose that the circuit clerk personally entered the minutes of the filing of the affidavit for appeal, the allowance of the appeal, etc., but he testifies he does not know why the jurat was unsigned. He has no direct recollection of the happenings at the time, but testifies the orders were taken in this and several other cases during the hurry of the closing hours of the term. By deposition appellant's attorney testifies positively he signed and was sworn to the affidavit in this case and in another at the same time and filed both affidavits with the clerk.

There is nothing, except the absence of the clerk's signature, tending to overthrow this testimony and the tendency of the record entries to corroborate it. The clerk personally made the minute showing the filing of an affidavit for appeal and the following minute of the court's order, based thereon, granting an appeal. He had served three years as clerk and it is presumed he knew an affidavit for appeal must be sworn to. He received and filed this paper as such an affidavit. This and the court's action in granting the appeal are to be considered in connection with the evidence mentioned.

Under the rule approved in Clark v. Railroad, 242 Mo. loc. cit. 589, 593, 148 S. W. 472, it sufficiently appears the affidavit was in fact sworn to and it will be treated as sworn to, there being no necessity of going through the now "bare and meaningless formality" of literally inserting the clerk's name above his official designation as it now appears in the affidavit. Darrier v. Darrier, 58 Mo. loc. cit. 234.

2. The sufficiency of the petition is challenged in this court.

(a) Whatever the effect the failure of the petition to allege appellant's incorporation otherwise might have been, the answer expressly admits appellant is a corporation and eliminates the question.

(b) The allegations of the petition do not disclose that appellant claims alone through a fatally defective record, and, consequently, the rule stated in Turner v. Hunter, 225 Mo. loc. cit. 82, 123 S. W. 1097, is inapplicable. In that case the petition alleged no judgment had ever been rendered in the tax suit, and Judges Woodson and Valliant were of the opinion this allegation rendered the petition fatally insufficient. There is no such allegation in the petition in this case.

In view of this the question whether the rule mentioned could, in any event, apply to a petition containing allegations that title is in plaintiff and that defendant claims some interest and praying the court to ascertain and determine the respective interests of the parties (section 2535, R. S. 1909; Spore v. Land Co., 186 Mo. 656, 85 S. W. 556) need not be discussed.

3. It is contended the judgment in the tax suit was and is void because the order of publication was not spread of record by the clerk. The petition in the case alleged the nonresidence of the defendants, including Joshua F. Hancock, and there is no pretense the clerk did not actually issue an order of publication in proper manner and form, and it is not contended there was any error or defect in the time or place of its publication. The record in the case shows that on November 27, 1886, "plaintiff, by attorney and leave of court, files proof of publication of notice to nonresident defendants," and the judgment itself recites all the defendants save the Ozark Land Company, "although served with legal process herein, come not, but make default." In these circumstances plaintiffs cannot be heard, in this proceeding, to question the sufficiency of the notice by publication on the ground mentioned. Brawley v. Ranney, 67 Mo. loc. cit. 283. The Missouri cas...