O'Day v. McDaniel

• Decision Date: 10 May 1904
• Citation: 80 S.W. 895,181 Mo. 529
• Parties: O'DAY v. McDANIEL.
• Court: Missouri Supreme Court

80 S.W. 895

181 Mo. 529

O'DAY v. McDANIEL.

Supreme Court of Missouri, Division No. 2.

May 10, 1904.

JUDGMENT—COLLATERAL ATTACK—TAXATION — SALE—PETITION—DESCRIPTION OF LAND— SUFFICIENCY—STATUTE—DEED.

1. A petition for the sale of land for taxes, with no other description of the property than "Tract 1, West End Add. Und. ½ int. in lots 73-74 & 75," in a certain county and state, is insufficient to support a judgment collaterally attacked.

2. Rev. St. 1899, § 9328, providing for abbreviations in assessment lists, has no application to averments in a petition for the sale of land for taxes.

3. A judgment in a suit for the sale of land for taxes is void where it is attempted thereby to affect land not described in the petition.

4. A sheriff's deed, executed on the sale of land for taxes, is void where it attempts to convey property not described in the petition therefor.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Suit by Sarah J. O'Day against H. B. McDaniel. From a judgment for plaintiff, defendant appeals. Affirmed.

Benj. U. Massey, for appellant. Heffernan & Heffernan, for respondent.

GANTT, P. J.

This is a suit to quiet the title to the undivided half interest in lots 73, 74, and 75, West End Addition to the city of Springfield, Greene county, Mo. The petition alleges that plaintiff is the owner of said interest in fee, and that H. B. McDaniel, the defendant, makes some claim of title to said lots by virtue of a tax deed; that both plaintiff and defendant claim title through one James Reilly as a common source of title; that defendant has never been in possession of said lots, and in fact has no interest therein. The court is asked to ascertain and determine the estate of the parties, and adjudge that defendant has no interest therein. The answer asserts title to an undivided one-half interest in said lots. The judgment of the circuit court was for plaintiff as to the one-half interest formerly owned by said James Reilly in said lots; that defendant's tax deed did not convey said lots; that said lots are not situated in the city of Springfield, but in what is known as the "West End Addition," lying outside of said city. On the trial it was admitted that James Reilly was the common source of title in both plaintiff and defendant. Plaintiff introduced a sheriff's deed of date February 10, 1900, in due form conveying to plaintiff all of said James Reilly's right, title, and interest in said three lots under a judgment in plaintiff's favor against said Reilly of date September 23, 1895, for $1,322.50. Defendant, to maintain his defense, offered in evidence a sheriff's deed under a tax sale reciting a judgment of October 22, 1897, in the circuit court of Greene county, in favor of the state, to the use of G. M. Patterson, collector, against James Reilly, for $31.11, for delinquent taxes for state, county, and special taxes on said real estate. Defendant then rested. Plaintiff, in rebuttal, offered in evidence the original rolls and files in the said tax suit, which showed the suit was filed February 26, 1898, and that the same was to enforce the collection of state and county taxes for the years 1892, 1893, 1894, and 1895 against lots described as "Tract 1, `West End Add.' Und. ½ int. in lots 73-74 & 75," situate in Greene county, Mo.; the tax bills on which said suit was based, wherein the description of said real estate is set out, as follows: "No. 4,218. Jas. B. Reilly. West End Add. 1892, valuation $300. No. 4,229. John B. Reilly. Und. ½ Und. ½ 73-74-75, 1893, val. $300. No. 3,080. See abstract Und. ½ Und. ½ 73-74-75, 1894, val. $300. No. 3,026. See abstract Und. ½ Und. ½ 73-74-75, 1894, val. $250." The summons issued to James Reilly and John B. Reilly, and was served on James Reilly, and non est as to John B. Reilly. James Reilly appeared and answered, and the cause was dismissed as to John B. Reilly. The petition, as originally filed, was against James B. Reilly, and the letter "B" was stricken out of the petition and on the back of the files and crossed out on the tax bill filed with the petition, having been written in ink and scratched out with lead pencil. The summons was issued against James Reilly. It was admitted the lots in controversy are assessed on the assessment book to James B. Reilly and John B. Reilly. It was admitted said "West End Addition," was not in the corporate limits of Springfield, but is a platted addition, which adjoins the limits of Springfield on the west, and contains lots designated as 73, 74, and 75, and there is no other...