O'Day v. McDaniel
| Decision Date | 10 May 1904 |
| Citation | 80 S.W. 895,181 Mo. 529 |
| Parties | O'DAY v. McDANIEL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.
Affirmed.
Benj. U. Massey for appellant.
(1) The tax deed to McDaniel is regular on its face, contains all the essential recitals conferring jurisdiction; the property is completely and correctly described, and the legal title to same is thereby well vested in McDaniel, and said deed is not subject to attack in this collateral proceeding, unless the judgment upon which it is based is absolutely void. Wellshear v. Kelley, 69 Mo. 343; Gray v Bowles, 74 Mo. 419; Smith v. Nelson, 110 Mo 552; Brown v. Walker, 11 Mo.App. 233; Knoll v Woelken, 13 Mo.App. 275. (2) The tax judgment against Reilly, upon which said tax deed is based, is in due form. The court in the trial of that cause had jurisdiction of the subject-matter of the suit, and of the person of Reilly, and the question of the incomplete or insufficient description of the property was a matter of defense at that trial, and was by the judgment in that case finally adjudicated and determined, and that matter can not in this proceeding be again inquired into, nor the judgment in that case now be set aside or be in anywise disturbed. Wellshear v. Kelley, 69 Mo. 351; Lewis v. Morrow, 89 Mo. 174; Allen v. McCabe, 93 Mo. 138; Hill v. Sherwood, 96 Mo. 125; Smith v. Nelson, 110 Mo. 552; Knoll v. Woelken, 13 Mo.App. 275. (3) It was competent on the trial of the tax suit, and at the hearing of this, to introduce testimony to explain any ambiguity or vagueness in the description of the premises involved, for the purpose of identifying same, and the testimony introduced here identifies the property mentioned in the tax petition as the same property described in tax deed. Hammond v. Johnson, 93 Mo. 214; Bollinger Co. v. McDowell, 99 Mo. 637; Turner v. Dixon, 150 Mo. 423; Brown v. Woody, 64 Mo. 547; Smith v. Nelson, 110 Mo. 552; Charles v. Patch, 87 Mo. 450; Brown v. Walker, 85 Mo. 262.
Heffernan & Heffernan for respondent.
(1) Before the court could acquire jurisdiction, it was essential that a petition be filed containing a description of the real estate to be affected by the proceeding. R. S. 1899, sec. 575; Schell v. Leland, 45 Mo. 289; Vaughan v. Daniels, 98 Mo. 235. (2) When there is no land described in the petition, there can be no jurisdiction of the subject-matter in such case, and without jurisdiction the judgment is void and open to collateral attack. Bowling v. McFarland, 38 Mo. 460; Vaughan v. Daniels, 98 Mo. 231; Railroad v. Atchison, 137 Mo. 230. (3) Neither the petition, judgment nor special execution described the property in controversy. The defendant James Reilly had no notification of the tax due on the land in controversy, or his day in court, of the property described in McDaniel's deed. The difference is not much less than it would have been if the suit had been dismissed and a new one commenced. The proceedings by the sheriff in selling land not described in the special execution were utterly null and void. Janny v. Spedden, 38 Mo. 402; Jones v. Yore, 142 Mo. 45; Milner v. Shipley, 94 Mo. 109. (4) A suit for the collection of delinquent taxes against land is a proceeding in rem; there can be no personal judgment against the owner even when there is personal service. It is only by the petition that the court acquires jurisdiction of the property and the defendant. Stewart v. Allison, 150 Mo. 343; State v. Wear, 145 Mo. 226. (5) In tax suits the court acquires jurisdiction of the property of the defendant by the filing of the petition, etc., and no judgment can be rendered against property different from that described in the petition, which would not be void and open to collateral attack. Milner v. Shipley, supra.
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, Missouri. 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 $ 31.51 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 situate in Greene county, Missouri. The taxbills on which said suit was based wherein the description of said real estate is set out are as follows:
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 taxbill 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 West End Addition to said city.
From the foregoing statement of the facts appearing in the record, it will be observed that the real estate described in the petition in the tax suit, and in the assessor's book and in the certified taxbill, was
In the tax judgment it was described as "Springfield, Mo. West End Addition undivided one-half interest in lots 73, 74 and 75," and the same description is found...
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