Davis v. Montgomery

• Decision Date: 29 June 1907
• Parties: DAVIS v. MONTGOMERY et al., Appellants
• Court: Missouri Supreme Court

103 S.W. 979

205 Mo. 271

DAVIS v. MONTGOMERY et al., Appellants

Supreme Court of Missouri, First Division

June 29, 1907

Appeal from New Madrid Circuit Court. -- Hon. Henry C. Riley, Judge.

Affirmed.

Lawrence Fisher for appellants; C. H. Shubert of counsel.

(1) The circuit court erred in permitting respondent, over the objection of appellants, to introduce the files of the newspaper, the Weekly Record, in this collateral suit, to falsify and impeach the record of the tax judgment recital "Defendant having been duly notified by publication of the nature and institution of this suit." 1 Freeman on Judgments, sec. 131, p. 236; Rumfelt v. O'Brien, 57 Mo. 569; Dunham v. Wilfong, 69 Mo. 355; Sutton v. Cole, 155 Mo. 215; Atwood v Atwood, 55 Mo.App. 370; Long v. Long, 141 Mo 371; R. S. 1899, secs. 580, 581 and 3150; Bernecker v. Miller, 44 Mo. 102; Latrielle v. Dorleque, 35 Mo. 233; Kane v. McCown, 35 Mo. 181; Freeman v. Thompson, 53 Mo. 183; Foster v. Givens, 67 F. 684; 29 Am. and Eng. Ency. Law, 194; 27 Am. and Eng. Ency. Law, 826, 848; Cruzen v. Stephens, 123 Mo. 344. (2) Upon the face of the whole record in the case at bar as now before this court, the circuit court erred in finding for respondent. Same authorities as above, and: Jennings v. Dunham, 60 Mo.App. 255; Scott v. Nevada, 56 Mo.App. 189; Harper v. Morse, 114 Mo. 317; Bank v. Donnell, 195 Mo. 572; R. S. 1899, sec. 9303; State ex rel. v. Sack, 79 Mo. 661; Cowell v. Gray, 85 Mo. 169. (3) The words in the tax petition, "The unknown heirs of Robert C. Hayes," was a sufficient designation of all persons coming within that description or designation. Cruzen v. Stephens, 123 Mo. 344; Wall v. Land & Lumber Co., 175 Mo. 412. (4) The present action is clearly a collateral action, and is in no sense a direct attack on the tax judgment. 27 Am. and Eng. Ency. Law, 848. (5) If the judgment is not void as appears from the record, it is not subject to collateral attack. Meyers v. McRay, 114 Mo. 382.

J. R. Brewer for respondent.

(1) The contents of a lost record can be shown by parol evidence. Perry v. Walser, Admr., 57 Mo. 169; Foulk v. Colburn, 48 Mo. 225. (2) The allegations in the petition as to the unknown parties were insufficient to give the court jurisdiction in the case of State ex rel. Geo. W. Steele v. Unknown Heirs of Robert C. Hayes, for there was no attempt to describe in the petition the interest of the unknown parties further than to say "that Robert C. Hayes died the owner of said land, and his heirs are the owners thereof;" and there was no attempt to say what interest the defendants had, or that plaintiff was unable to state it for the reason that he did not know it. R. S. 1899, sec. 580; Land & Mining Co. v. Land & Cattle Co., 187 Mo. 420. (3) The order of publication is insufficient. Authorities, supra. (4) If the judgment is void, the sale can be attacked collaterally. Williams v. Monroe, 125 Mo. 585. (5) If the judgment is void, the purchaser at the tax sale acquired no title to the land in question. Harness v. Craven, 126 Mo. 233.

OPINION

WOODSON, J.

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, Revised Statutes 1899.

The answer was a general denial and a plea of the thirty-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, who departed this life prior to the year 1889. All of Hayes's 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:

1st. Petition and affidavit in case of State of Missouri at the relation of Geo. W. Steel, collector of the revenue of New Madrid County 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, Revised Statutes 1899, 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.

2d. The judgment based on said petition, recorded in tax judgment records of New Madrid county, in words and figures as follows (omitting certain other tracts not in controversy):

"New Madrid County Circuit Court, September Term, 1906. Case No. 2049.

"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 day 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 that the defendant is 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. 1/2 S.W. 1/4, Sec. 34, Twp. 24, R. 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."

3d. Order of filing proof of publication in case of Collector vs. 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.

Which 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 Sept. --, 1890."

4th. It was admitted that John A. Mott was circuit clerk of New Madrid county, 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, vs. the 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. I cannot find any book in my office containing any other...