Davis v. Montgomery

• Decision Date: 29 June 1907
• Citation: 103 S.W. 979,205 Mo. 271
• Parties: DAVIS v. MONTGOMERY et al.
• Court: Missouri Supreme Court

103 S.W. 979

205 Mo. 271

DAVIS v. MONTGOMERY et al.

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

1. JUDGMENT — CONCLUSIVENESS OF RECITALS.

Where the validity of a judgment in an action to enforce a lien for taxes is brought in question in a suit to determine the title to real estate, the recital in that judgment that the defendants therein had been duly notified by publication will not prevent a showing that the order of publication did not comply with the provisions of law.

2. EVIDENCE — BEST AND SECONDARY — CONTENTS OF JUDICIAL RECORDS.

In a suit to determine the title to real estate, where the validity of a judgment in an action to enforce a lien for taxes on the property involved was questioned, and the record of the order of publication in the tax lien case and the certified copy thereof delivered to the publisher were both lost or destroyed, it was proper to admit the files of the paper containing the publication of the order when the editor testified that the published order contained therein was a correct copy of the order delivered to him by the clerk for publication.

3. PROCESS — SERVICE — PUBLICATION — STATUTORY PROVISIONS.

Rev. St. 1899, § 580 [Ann. St. 1906, p. 606], provides that, if any plaintiff alleges in his petition that there are persons interested in the subject-matter of the petition whose names cannot be inserted because they are unknown to him, and describes the interest of each of such persons and how derived so far as his knowledge extends, the court shall make an order as in the case of nonresidents, reciting the allegation in relation to the interest of such unknown parties. In an action to enforce a lien for taxes, a petition and order of publication alleged that one H. was the owner at the time of his death of certain premises, and his heirs are now the owners thereof, and they are unknown to plaintiff, for which reason their names cannot be inserted. Held, that the petition and order did not sufficiently comply with the statute, and that a judgment based thereon was void.

4. EXECUTION — SALE — COLLATERAL ATTACK.

Where a sale is made under an execution based on a void judgment, it may be attacked in collateral proceedings.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by W. E. Davis against J. T. Montgomery and others. From a judgment for plaintiff and an order overruling a motion for new trial, defendants appeal. Affirmed.

The plaintiff instituted this suit in the circuit court of New Madrid county. The petition states that plaintiff was the owner of certain lands described in the petition, and that defendants claimed some interest therein under and by virtue of a certain tax deed, which plaintiff alleged was void for want of proper service on the defendants and prayed that the title and interest of all parties in and to said land be ascertained and determined by the court, as provided for by section 650, Rev. St., 1899 [Ann. St. 1906, p. 667]. The answer was a general denial and a plea of the 30-year statute of limitations. The replication was a general denial of the new matter set up in the answer.

At the trial it was admitted that New Madrid county was the common source of title. On April 3, 1861, said county, by patent duly executed, conveyed said land to Robert C. Hayes, and that he departed this life prior to the year 1889. All of Hayes' heirs by quitclaim deeds conveyed all their rights, title, and interests in and to said land to the plaintiff. This was all the evidence introduced by plaintiff in chief.

Defendants introduced in evidence a sheriff's deed, dated March 19, 1891, purporting to convey all the rights, title, and interests of the unknown heirs of said Robert C. Hayes in and to the lands in controversy to Francis J. Peter. The defendants, on December 18, 1899, through mesne conveyances, acquired the title and interests of said Francis J. Peter. W. O. Pool testified that he knew the defendants and that they had been in possession of said land one whole year next before the filing of this suit and that they had built a tram road over it and had taken timber off of same; that the road was constructed three years before the suit was instituted, and they had used it continuously ever since. This was all of defendants' evidence.

In rebuttal, the plaintiff introduced the following evidence:

(1) Petition and affidavit in case of state of Missouri at the relation of Geo. W. Steel, collector of the revenue of New Madrid county, Mo., v. Unknown Heirs of Robert C. Hayes, for delinquent taxes on the land in controversy, filed June 17, 1890, upon which the sheriff's deed offered by appellants is based.

The allegations of petition and affidavit relative to the interests of the unknown parties, how derived, etc., which was assailed by plaintiff as being insufficient under section 580, Rev. St. 1899 [Ann. St. 1906, p. 606], is as follows, and will be sufficient to get an understanding of the points in controversy: "That one Robert C. Hayes was the owner at the time of his death of the above-described premises and real estate, and his heirs are now the owners thereof, and they are unknown to the plaintiff for which reason their names cannot be inserted in this petition." The rest of the petition was in the usual form, and was not questioned by either side. The part given above is all that is in dispute.

(2) The judgment based on said petition, recorded in tax judgment records of New Madrid county, Mo., In words and figures as follows (omitting certain other tracts not in controversy): "New Madrid County Circuit Court, September Term, 1906. Case No. 2,049. Civil Action to Enforce Lien for Taxes. Final Judgment. The State of Missouri, at the Relation and to the Use of George W. Steel, Collector of the Revenue of New Madrid County, in the State of Missouri, Plaintiff, vs. Unknown Heirs of Robert C. Hayes, Defendant. Now at this date comes the relator by his attorney, defendant having been duly notified by publication of the nature and institution of this suit, and failing to answer plaintiff's petition. Wherefore it is ordered by the court that the petition of the plaintiff against defendant be taken as confessed, and all and singular the matters contained in the petition are by the relator submitted to the court, and the court after hearing the testimony doth find the defendant the owner of the real estate described in the petition, and the court doth further find that there are due and unpaid delinquent taxes, including interest thereon, on each tract of the following described real estate situated in New Madrid county, Missouri, for the years and amounts set opposite each tract, viz: * * * Number 4, parts of sections S. ½ S. W. ¼, section 34, township 24, range 15, years for which tax due 1877 to 1888, both inclusive; tax, $9.31; interest, $7.16; total, $16.47. Wherefore it is ordered and adjudged and decreed by the court that the plaintiff have and recover from this defendant special judgment for the said sum of fifty-seven dollars and fifty-six cents, so found due on the land as aforesaid with costs of suit, and that this judgment shall draw ten per cent. interest from rendition thereof, and further that there be levied and collected as other costs in this case four per cent. commission for collection for Henry C. Riley, plaintiff's attorney, and attorney's fee of eight per cent. of the judgment collected and that the aforesaid judgment and costs are a special lien and judgment against said tracts of land, respectively, as hereinbefore described, and that the plaintiff have an execution therefor."

(3) Order of filing proof of publication in case of Collector v. Unknown Heirs of Robert C. Hayes. (Objected to by counsel for defendants for the reason it does not disclose in what newspaper it was ordered published. Objection overruled. Exception saved.) Such order is as follows (caption omitted): "Now comes plaintiff and files proof of publication of notice to defendants of the institution and nature of this suit" — which order was dated in September, 1890.

(4) It was admitted that John A. Mott was circuit clerk of New Madrid county, Mo., from 1889 until 1900, and as such clerk he kept a book similar to one shown in court, which book had on the back of it "Orders of Publication."

Geo. M. Summers testified: "I am deputy circuit clerk of this county. I have made a diligent search over the records of New Madrid county circuit court to find an order of publication made in the case of Geo. W. Steel, Collector of Revenue, v. Unknown Heirs of Robert C. Hayes, but do not find it. I found a book similar to the one handed me, and marked "Orders of Publication" on the back. I do not find any other besides it. In the book I have the first order of publication is dated January 30, 1893. I don't know whether or not it contains any order of publication in tax suits for the year 1890. I looked through it, but did not find the one I was looking for. I don't remember seeing any in it made in 1890."

J. W. Jackson testified: "I am circuit clerk of New Madrid county, Mo. I cannot find any book in my office containing any other publication prior to the year of 1890. I have made diligent seach."

E. A. Wright testified: "I was publishing the Weekly Record in New Madrid county, Mo., in the year 1890. I don't think the Chronicle was running that year. I published the orders of publication in the tax suits for the September term of the circuit court for that year. I got them from Mr. Mott, then circuit clerk. Q. State whether or not you published an order of publication in the case of Geo. W. Steel, Collector, v. Unknown Heirs of Robert C. Hayes, a certified copy...