Dunavant v. Pemiscot Land & Cooperage Co.

• Decision Date: 30 January 1915
• Docket Number: No. 1283.,1283.
• Citation: 188 Mo. App. 83,173 S.W. 747
• Court: Missouri Court of Appeals
• Parties: DUNAVANT v. PEMISCOT LAND & COOPERAGE CO.

173 S.W. 747

188 Mo. A. 83

DUNAVANT v. PEMISCOT LAND & COOPERAGE CO.

No. 1283.

Springfield Court of Appeals. Missouri.

January 30, 1915.

Rehearing Denied February 16, 1915.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Action by M. E. Dunavant, administrator of the estate of E. H. Young, deceased, against the Pemiscot Land & Cooperage Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

Ward & Collins, of Caruthersville, for appellant. N. C. Hawkins and Shepard, Reeves & McKay, all of Caruthersville, for respondent.

STURGIS, J.

This is a suit for trespass alleging that the defendant company cut, or caused to be cut, and removed, the timber on 160 acres of land in Pemiscot county, Mo., owned by plaintiff's intestate, E. H. Young, who died in 1912, shortly before this suit was brought. The suit is by Young's administrator, but, as the cause of action accrued to him during his lifetime, he will be spoken of as the plaintiff. Carl Bloker, secretary of the defendant company and its active manager, was originally a defendant, but the cause was dismissed as to him on proof that all his acts were for his company. The jury, under the court's instructions, returned a verdict for plaintiff for $1,250 and defendant appeals. The trespass was committed in 1909 and 1910, and there is no question but that the defendant, claiming the right to do so, sold the timber on said land and authorized and directed the timber to be cut and removed therefrom. Defendant denies plaintiff's ownership of the land, asserts title in itself, and the chief question at issue is that of title. The court treated plaintiff's title as fully established by the evidence, and instructed the jury on that theory.

The land has never been inclosed, improved, or in the actual occupation of any one. It is, or at least was until recently, swamp land, and chiefly valuable for its timber. On and prior to January 1, 1895, one S. H. Beverforden owned this land under a perfect chain of title. On that date he, jointly with his wife, Emma A., made and executed a warranty deed, which, as recorded, shows the land conveyed to Frank E. "Dervitt," of Jackson county, Mo. There has never been any conveyance from Frank E. Dervitt to any one, nor is there any evidence, direct or circumstantial, that any such person ever existed, except as may be inferred from the record of this deed. The next conveyance of the land is a deed from Frank E. "Dewitt," of Independence, Jackson county, Mo., to E. H. Young, of the same county. This deed is properly acknowledged before a notary public of that county. In March, 1897, E. H. Young paid the taxes on this land for four years, being 1892 to 1896, inclusive. The taxes for 1897 and 1898 being delinquent, a suit for delinquent taxes was instituted in 1900 against E. H. Young, resulting in a judgment and sale of the land and a sheriff's deed, dated February 22, 1901, conveying the land to one William Hunter. The defendant claims by mesne conveyances under this tax deed. At that time Young was a resident of Kansas, and service was had in the tax suit by publication. The purchaser at the tax sale, Hunter, sold and conveyed the land in 1902 to several persons, who then, or later, formed the defendant company, an Ohio corporation, and at once conveyed the land to it.

When the trespass was committed in 1909 and 1910, the defendant company, or Carl Bloker, who held the legal title for it, had and claimed no title to this land, except that derived from E. H. Young under the tax sale and deed above mentioned. It is shown that this tax sale and deed is void, and conveyed no title, because the petition in the tax suit failed to describe the land in controversy, which is in section 3, but described other land in section 13. The court obtains jurisdiction to render judgment against a particular tract of land and to sell same for delinquent taxes only by a petition correctly describing such land. It is held in O'Day v. McDaniel, 181 Mo. 529, 534, 80 S. W. 895, 896, that:

"It is unquestionably the law of this state that in a proceeding practically in rem to fix a lien upon property it is essential that the petition shall describe the property in some definite or appropriate way as a necessary part of the statement of the cause of action. It was so ruled in Milner v. Shipley, 94 Mo. 106 , and a judgment rendered in a tax proceeding under our statutes against property different from that described in the petition was void, and open to collateral attack; and in Vaughan v. Daniels, 98 Mo. 234 , that a judgment upon a petition describing no land at all was also void. * * * The subsequent proceedings are dependent on the jurisdictional facts required to be alleged in the petition. * * * But it was not within the power of the court to make the taxes a lien or charge upon property different from that described in the petition."

Nor does it aid the title based on such tax deed that the tax bill filed with the petition, the order of publication, the judgment, execution, and sheriff's deed correctly describe the land. Vaughan v. Daniels, 98 Mo. 230, 11 S. W. 573.

At the time of this trial the original petition and other papers constituting the roll in the tax suit were lost or destroyed. These papers were, however, in existence at the time the controversy arose over this land, and each party had a certified copy of the petition, which showed that the land described therein was not the same land as that described in the judgment and tax deed. The clerk who had made and certified to these copies testified that he was careful in making and comparing the same, and there was evidence of others who had examined the original petition and noted the erroneous description. There was no evidence to the contrary, and we think the court did not err in holding, as a matter of law, that no title passed under the tax sale, and defendant, therefore, had no title at the time of cutting this timber.

It is shown that defendant, or Bloker for it, brought a suit and obtained judgment to quiet title to this land in 1912 against Frank E. "Dervitt" and the unknown heirs, devisees, etc., of E. H. Young, deceased. This service was by publication, and, as E. H. Young was then living, a suit and judgment against his unknown heirs, etc., could and did avail nothing.

The judgment against Dervitt, assuming that there was such a person, and that he had title, and that the judgment conveyed same, was subsequent to the trespass complained of and could be given no retroactive effect. Such decree, however, though it adjudges the defendant, then plaintiff, to be the owner of this land, is so only as between it and Dervitt, and it can hardly be said to convey even Dervitt's title, if any, to this defendant. Its effect is to debar Dervitt, or any one claiming under him, from thereafter asserting title. "The effect of an ordinary decree to quiet title is only to preclude defendant, or any one claiming under him, from asserting against plaintiff, or his successors, any title to or interest in the real property affected, and such a decree does not have the effect of transferring to plaintiff, as against a stranger to the suit, the title theretofore held by defendant." 32 Cyc. 1384. See, also, Powell v. Crow, ...