Dent v. Investors' Security Ass'n

• Decision Date: 04 October 1923
• Docket Number: No. 22825.,22825.
• Citation: 300 Mo. 552,254 S.W. 1080
• Parties: DENT et al v. INVESTORS' SECURITY ASS'N et al.
• Court: Missouri Supreme Court

254 S.W. 1080

300 Mo. 552

DENT et al v. INVESTORS' SECURITY ASS'N et al.

No. 22825.

Supreme Court of Missouri, Division No. 2.

October 4, 1923.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Suit by J. Frank Dent and another against the Investors' Security Association and others. Judgment for defendants Security Association and Shaw, and plaintiffs appeal. Reversed and remanded.

G. C. Dalton, of Atlantic, Iowa, for appellants.

Wm. P. Elmer, of Salem, for respondents.

DAVID E. BLAIR, P. J.

Suit to quiet title to 80 acres of land in Dent county. From a judgment in favor of defendants Investors' Security Association and E. F. Shaw, plaintiffs have appealed. An opinion was handed down at the April term, 1922, affirming the judgment of the trial court. Upon motion of appellants a rehearing was granted, and. the case was again briefed and submitted at the present term.

The common source of title is Jerome H. Gregory. Appellants' evidence consisted of a sheriff's deed, dated November 27, 1917, conveying to them the land in controversy, and the testimony of J. Frank Dent to the effect that he purchased said land at the sheriff's tax sale in good faith, believing he was getting good title, and that he had paid the taxes on said land for the years 1917, 1918, and 1919. Plaintiffs also introduced in evidence a letter from the secretary of state, John L. Sullivan, dated March 24, 1920, advising counsel for plaintiffs that be was unable to find the Investors' Security Association On the records of his department.

Defendants offered in evidence warranty. deed from J. V. Gregory and wife to E. R. Coffin, dated August 11, 1910; general warranty deed from E. R. Coffin to W.. G. Burris, dated January 21, 1911; warranty deed from Walter G. Burris and wife to F. B. Rogers, dated February 9, 1911; general warranty deed from F. B. Rogers and wife to F. M. Parmenter, dated November 14, 1911; general warranty deed from F. N. Parmenter, single, to Leo Picard, dated November 6, 1914; and deed of trust from Leo Picard and wife to E. W. Bennet, trustee for defendant Investors' Security Association, dated September 8, 1916, to secure payment of a note of the same date for $1,000, with 6 per cent. interest per annum, payable on September 8, 1919, to said Investors' Security Association. All of the above instruments properly described the land in controversy, and were recorded in said Dent county prior to the date of the institution of the suit for taxes hereafter referred to. The considerations stated in the warranty deeds varied from $1,200 to $3,000, as shown by respondents' additional abstract. Defendants also offered in evidence said note for $1,000, together with assignment thereof to defendant E. F. Shaw, which assignment was dated May 5, 1917, and was duly recorded.

Defendants then offered in evidence the petition in the case of State of Missouri ex rel. A. R. Stephens, Collector, etc., v. Jerome H. Gregory, Leo Picard, and Investors' Security Association, a corporation, No. 2871, filed in the office of the clerk of the circuit court of Dent county on June 9, 1917. Said petition is in conventional form, asking for judgment for the state and county taxes, due on the land in controversy, for the year 1914, together with interest, amounting in all to $3.69, and praying for the sale of the land and for fieri facies, and alleging that the defendants were the owners of said land. Said petition concluded as follows:

"Plaintiff further states that the defendants, Jerome H. Gregory, Leo Picard, Investor's Security Association, a corporation, are nonresidents of the state of Missouri."

Defendants then offered in evidence the order and proof of publication in said tax suit, which need not be noticed here, further than to quote a statement in the order of publication, as shown by appellants' abstract of the record, as follows:

"Now at this day comes the plaintiff by counsel, before the undersigned clerk of the circuit court of Dent county, Mo., in vacation, and files herein its petition and affidavit stating, among other things, that the defendants, Jerome H. Gregory, Leo Picard, and Investors' Security Association, are nonresidents of the state of Missouri, and cannot be summoned in this action in this state by the ordinary process of law as provided by article 4, chapter 21, Revised Statutes of Missouri 1909."

Respondents have filed an additional abstract, claiming that appellants' abstract is erroneous, and that the order of publication does not contain the words we have italicized. Since appellants make no denial in their reply brief of the alleged error in their printed abstract, and the original files are not brought before us, we must regard the italicized words as not being a part of the original order of publication.

Defendants then offered in evidence a judgment in the tax suit rendered August 18, 1917, which is in ordinary form, and recites that defendants did not appear, although publication was duly made notifying them of the proceeding. The judgment was for $3.69 and costs, and ordered sale of the land and special fieri facies.

Finally defendants offered in evidence a quitclaim deed to the land in controversy from Jerome H. Gregory and wife to J. Vernon Gregory, dated December 16, 1919, and describing the land in controversy. Said quitclaim deed contained the following recital:

"This deed is made to supply a deed heretofore made between the same parties hereto, and which was never recorded, arid has become lost or destroyed."

The foregoing comprised all the evidence in the case. The trial court found the issues for defendants Investors' Security Association and E. F. Shaw, declaring that the deed of trust from Leo Picard to Investors' Security Association, securing a note for $1,000 with 6 per cent. interest, constituted a valid lien against the lands in controversy to the extent of $1,180.

I. The order of publication in the tax suit, as corrected by respondents' additional abstract, stated that plaintiffs had alleged in the petition and affidavit that defendants "are nonresidents of the state of Missouri and cannot be summoned in this action." The italicized words were not used in the petition. If they were in an affidavit, such affidavit does not appear in the record. Respondents contend that the attempted service by publication on defendant Investors' Security Association was not good, because not in compliance with section 1770, R. S. 1909 (now section 1196, R. S. 1919). The allegation in the petition is not sufficient to authorize publication service upon a foreign corporation. Nor is the allegation referred to in the order of publication sufficient. If said defendant was a nonresident corporation, it must be that it was organized under the laws of some other state, kingdom, or country. Section 1770, R. S. 1909, authorized service by publication upon such corporation only when

"plaintiff or other person for him shall allege in his petition, or at the time of Sling same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are nonresidents of the state, or is a corporation of another state, kingdom or country, and cannot be served in this state in the manner prescribed in this chapter."

The words we have italicized comprise the allegations essential to authorize publication service on a foreign corporation. Huiskamp v. Miller, 220 Mo. 135, 110 S. W. 633. "It is well settled that, where constructive service is authorized, there must be a strict compliance with the statutory requirements." McMenamy Inv. & R. E.. Co. v. Stillwell". Catering Co., 267 Mo. 340, 184 S. W. 467. See cases cited therein. Unless there is a strict compliance with the statute, a judgment rendered upon constructive service is void, and can be attacked at any time, even in a collateral proceeding. McMenamy Inv. & B. R. Co. v. Catering Co., supra; Kunzi v. Hickman, 243 Mo. 103, 147 S. W. 1002. The failure of plaintiff in the tax suit to allege in the petition or in an affidavit, filed therewith or thereafter, that defendant investors' Security Association is a corporation of another state, kingdom, or country, and cannot be served, etc., rendered the attempted constructive service entirely ineffectual. The allegations made were clearly not a compliance with section 1770, R. S. 1909, leaving the judgment rendered thereon void as to said corporation defendant, and subject to colateral attack, and said judgment does not cut off the interest of said Investors' Security Association, or its assignee, in the land in controversy.

II. Appellants contend that said corporation, Picard, and preceding grantors are ail strangers to the title, and that the records show that Jerome H. Gregory was the owner of the land; that said Gregory was properly served by publication in the tax suit, and they purchased at the sheriff's sale all of his right, title, and interest in the land, and that they are therefore owners in fee simple. How stands the...