Evarts v. Missouri Lumber & Mining Co.

• Decision Date: 22 February 1906
• Citation: 92 S.W. 372,193 Mo. 433
• Parties: EVARTS et al. v. MISSOURI LUMBER & MINING CO.
• Court: Missouri Supreme Court

92 S.W. 372

193 Mo. 433

EVARTS et al. v. MISSOURI LUMBER & MINING CO.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

1. TAXATION — TAX SALES — BONA FIDE PURCHASER — HOLDER OF UNRECORDED DEED.

A purchaser at a tax sale under a judgment for taxes, where the record owner was made a party defendant, acquired a good title as against the holder of an unrecorded deed from such apparent owner.

2. SAME — COLLATERAL ATTACK — PARTIES.

A judgment in a tax suit cannot be collaterally attacked by one who was defendant therein and who was properly served, either personally or by publication.

3. SAME — TAX SALES — TITLE OF PURCHASER — VALIDITY — PAYMENT OF TAXES.

The title of a purchaser under a tax judgment cannot be defeated by proof that taxes for which the judgment was rendered had been paid either before the institution suit, before judgment, or before sale.

4. SAME — ACTIONS — SERVICE — ORDER OF PUBLICATION — NONRESIDENCE.

Rev. St. 1899, § 9303, provides that notice and summons in back tax cases shall be sued

out and served in the same manner as in ordinary civil actions, and that the general laws of the state as to practice and proceedings in civil cases shall apply to tax cases. Section 575 declares that in suits to enforce liens against real property, if complainant shall allege in his petition or by affidavit thereafter filed that part or all of the defendants are nonresidents, the court shall make an order directed to such nonresidents, which may be served by publication. Held, that an unverified petition in a back tax suit alleging that the defendant owner was a nonresident was sufficient to sustain an order for publication of process.

5. SAME — DESIGNATION OF DEFENDANTS — NAMES.

Land sold for taxes under a tax judgment was assessed to "H. E. Evarts." The tax attorney who brought the suit knew that the plaintiffs "Henry E. Evarts" and another were the owners. Henry E. Evarts was a nonresident and did nothing to induce any one to believe that his name was H. E. Evarts. Held, that an order for publication of process directed to "H. E. Everts" was insufficient to sustain a judgment and sale divesting plaintiff's title in the land.

6. SAME — JUDGMENT — FRAUD OF ATTORNEY — EFFECT — BONA FIDE PURCHASERS.

The misconduct and fraud of a back tax attorney in bringing suit against a nonresident owner of certain land for whom the attorney had acted as agent, after he knew that the taxes had been paid, did not prevent such owner from interposing a defense of payment to the suit, and was therefore not available to vacate the title of a bona fide purchaser of the land under a tax judgment recovered in such proceedings.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by Henry E. Evarts and others against the Missouri Lumber & Mining Company. From a judgment for defendant, plaintiffs appeal. Reversed.

J. W. Chilton, for appellants. John C. Brown, for respondent.

MARSHALL, J.

This is an action under section 650, Rev. St. 1899, to ascertain and declare the rights of the parties hereto to lot 3 and the W. ½ of lots 1 and 2, and the E. ½ of lot 4 of the N. E. ¼ of section 3, and the W. ½ of lots 2, 3, and 4 of the N. W. ¼ of section 2, all in township 29, range 6 W., in Shannon county, Mo. There was a judgment for the defendant in the trial court, and the plaintiffs appealed.

The issues: The petition alleges the corporate capacity of the defendant, and that the plaintiffs own and claim the fee-simple title to the land in controversy, and that the defendant claims an interest therein by virtue of a sheriff's deed purporting to convey the land to one A. E. McGlashen, made in 1896, for alleged delinquent taxes, for the year 1892, and that the sheriff's deed, under the tax judgment, is null and void, because the judgment in the tax case was obtained by fraud, and because the court rendering the judgment had no jurisdiction to render the same. The petition further alleges that the plaintiffs have owned the land since 1885, and have paid the taxes thereon ever since then, including the year 1892, which last were paid in the year 1894; that prior to the payment thereof, in 1894, the land had been returned delinquent by the collector; that in the year 1895 the collector employed one L. L. Munsell to bring suit to enforce the state's lien for back taxes, in Shannon county, and that, when the collector delivered to Munsell the back-tax book of said county, he noted thereon the fact of plaintiffs' payment of said delinquent taxes on said land, and cautioned Munsell not to bring the action against the plaintiffs' land, for the reason that all taxes had been duly paid thereon; that Munsell, being so employed to bring the back-tax suits, entered into an unlawful agreement with the publisher of a certain newspaper in Shannon county, to the effect that Munsell procured orders of publication in cases pending for the enforcement of taxes to be published in said newspaper, and that in consideration thereof the publisher of the newspaper agreed to pay Munsell one-half of all fees realized by him for publishing such notices; that in order to make money unlawfully for himself, and in pursuance of said unlawful agreement, and without letting the back-tax book show the filing of a suit against the plaintiffs, Munsell fraudulently brought suit against the plaintiffs' land for the taxes for the year 1892, and obtained a judgment for said taxes, and caused the land to be sold therefor; that plaintiffs were then, and are now, nonresidents of the state of Missouri, and knew nothing of the tax suit, or of the sale under the judgment therein, until five months next before the beginning of this suit, and that the collector and tax attorney knew that the taxes for that year on this land had been paid, and knew that the plaintiffs owned the land, but never caused a process to be served on them notifying them of the pendency of said suit; that the payment by them of the taxes extinguished the lien of the state for taxes, and that the procurement of the judgment, in manner aforesaid, was a fraud upon the court, and that the judgment and sale were void, and passed no title to the purchaser. The answer is a general denial, except an admission that the defendant claims title to the land.

The case made is this: It was agreed that Peter Duffield, the patentee from the government, is the common source of title, and the plaintiffs introduced a warranty deed from said Duffield to one John M. Stull, dated August 11, 1858, recorded February 12, 1859; also a deed from said Stull to Julius King and T. J. McLain, dated August 6, 1869, recorded August 20, 1869; also a quitclaim deed from said King to said McLain, dated March 10, 1869; recorded November 14, 1869; also an assignment by McLain to Washington Hyde, as assignee, dated May 27, 1876, recorded June 30, 1876; also a deed from said Hyde as assignee and trustee of McLain, to Isaac Smith and Job J. Holliday, dated December 27, 1879, recorded January 10, 1880; also a quitclaim deed from said Smith to Holliday, dated January 9, 1880, recorded February 24 1880; also a quitclaim deed from Holliday to Henry E. Evarts and Mary Everts, dated July 17, 1885, and recorded April 7, 1900. Thereupon the plaintiffs rested.

The defendant then offered a sheriff's deed purporting to convey the interest of David Wilson, Job J. Holliday, and H. E. Evarts in the land to A. E. McGlashen, dated September 17, 1896, and recorded September 17, 1896, and said deed recited a judgment for back taxes for the year 1892 against said land amounting to $8.85, and a sale under said judgment by the sheriff to said McGlashen. The plaintiffs objected to the introduction of said deed because the court had no jurisdiction of the plaintiffs in this case, the defendants in that case, they not having been served with process; also because the court had no jurisdiction of the land, because the taxes on the land for the year 1892 were paid before the suit was instituted, the judgment rendered, or the sale made; also because the judgment in the tax suit was obtained by the fraudulent contrivance of the tax attorney representing the state. In support of those objections the plaintiffs introduced the files in the tax suit. That suit was entitled the State of Missouri, at the Relation and to the Use of F. M. Chilton, Collector of the Revenue, etc., Plaintiff, v. David Wilson, Job J. Holliday, and H. E. Evarts, Defendants. Mary E. Evarts, the other plaintiff herein, was not made a party to that suit. The files in the tax case further showed that there was no service of process on any of the defendants, and that the defendants were brought in by an order of publication based upon the allegation in the petition that the defendants in said suit were nonresidents of the state, and that no affidavit showing that the defendants were nonresidents was filed at any time in that case. It nowhere appears, from the abstract of the record, that the petition in the tax case was verified. In further support of the objection the plaintiff called as a witness, F. M. Chilton, who testified that from 1891 until March, 1897, he was the collector of the revenue of Shannon county. He identified the delinquent tax book for the year 1893 and all prior years, called the "Consolidated Delinquent Tax Book," and further testified that the land in question was entered on that book as delinquent for the year 1892, but that subsequent to his receiving the book the taxes were paid, and that he marked them paid on the book, and that they were paid to him, and that he accounted for them in his settlements as collector, and that he instructed the tax attorney not to bring suit therefor. He further testified that on the delinquent tax book for 1893 H. E. Evarts was entered as the owner of this land by the county clerk; that, as collector, he had previously had correspondence with Mr. Evarts about the payment of his taxes, but that Mr. Evarts had...