Fleming v. Tatum

• Decision Date: 28 February 1911
• Citation: 232 Mo. 678,135 S.W. 61
• Parties: FLEMING v. TATUM et al.
• Court: Missouri Supreme Court

135 S.W. 61

232 Mo. 678

FLEMING v. TATUM et al.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

1. TAXATION (§ 642)—DESIGNATION OF PARTIES—UNKNOWN PARTIES.

Rev. St. 1899, § 626 (Rev. St. 1909, § 1828), providing that either party may allege any fact or title alternatively, declaring his belief of one alternative or the other, and his ignorance of whether it be the one or the other, does not apply to the title, mentioned by Rev. St. 1899, § 592 (Rev. St. 1909, § 1794), as one of the three parts of the petition, but only to the second part, stating facts constituting the cause of action, and a petition and order of publication on which a tax judgment is founded sufficiently designate the defendants as "F., if living, or, if dead, his unknown heirs or devisees."

2. TAXATION (§ 642)—SERVICE OF PROCESS— PUBLICATION.

Rev. St. 1899, § 580 (Rev. St. 1909, § 1776), authorizing notice by publication against unknown persons, and requiring the plaintiff to state, verified by affidavit, that there are, or he believes there are, persons interested in or who claim to be interested in the subject-matter of the petition, whose names he cannot insert because they are unknown to him, and to describe the claims or interests of such unknown parties and how they are derived so far as known to him, is sufficiently complied with in a petition for a tax judgment, by allegations that, if F. be dead, there are persons interested in the subject-matter of the suit whose names cannot be inserted because they are unknown to affiant, and that the interest of such persons and how derived, so far as known to affiant, are described as follows, viz., that, if F. be dead, his unknown heirs or devisees claim or might claim

an interest or right in the land by descent, inheritance, devise, or operation of law, and that, if F. be living, he is a nonresident of the state.

3. TAXATION (§ 642)—SERVICE OF PROCESS—PUBLICATION—TIME FOR PUBLICATION.

Though the order of publication in a tax suit is dated June 7th, and the petition was filed June 8th, and the first publication was June 8th, a recital in the order of publication that on the day thereof the plaintiff filed her petition is conclusive and sufficient to sustain the order.

4. PROCESS (§ 138)—SERVICE—PUBLICATION— PROOF.

Under Rev. St. 1899, § 581 (Rev. St. 1909, § 1777), requiring notice to nonresident defendants, or unknown defendants, to be published once a week for four weeks successively, an affidavit of the publisher that the publication was made in a weekly newspaper for four weeks successively, in Nos. 16, 17, 18, and 19 of volume 26, dated June 8th, 22d, 23d and 29th, is sufficient to show proper publication for four weeks in succession, beginning June 8th and ending June 29th, notwithstanding the error as to the date of the second and third publications.

5. ACTION (§ 36)—NATURE AND FORM—EQUITABLE DEFENSES IN ACTION AT LAW.

In an action at law, if the defendant pleads an equitable defense going to the life of the cause of action, and prays equitable relief, the action is converted into a suit in equity.

6. JUDGMENT (§ 747) — CONCLUSIVENESS— JUDGMENTS CONCLUSIVE—EJECTMENT.

In ejectment, an answer of general denial and a special plea of title under tax sale, and a reply denying that defendants hold any title, and alleging that their pretended deeds are void, do not convert the action into an equitable one, and do not render the ejectment record admissible in a subsequent suit between the same parties to quiet title; the judgment in ejectment not being res judicata of the title.

7. APPEAL AND ERROR (§ 1051)—REVIEW— HARMLESS ERROR—ADMISSION OF EVIDENCE.

In an action to quiet title, where the defendants showed good title under a tax deed, the admission in evidence of the record of an action in ejectment in which judgment was rendered for defendants did not injure plaintiff.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by Lucy T. Fleming against George Tatum and others. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded, with directions.

Hamlin & Seawell, for appellant. O. R. Puckett and Benton & Ruark, for respondents.

VALLIANT, J.

This is a suit to quiet title under section 650, R. S. 1899. The land described in the petition is the N. ½ of section 30, township 23, range 33; but the land in dispute is really only the N. W. ¼ of that section—that at least is the only part of the section to which the defendants introduced any proof of title. The mistake runs through the pleadings and final judgment, which decrees absolute title in defendant Griffin to the whole N. ½ of that section. The mistake is plain on the face of the record. The defendants' title arises out of a sheriff's sale under a tax judgment. The petition under which the tax judgment was rendered ran against the N. ½ of the section, and the judgment condemned the whole to be sold; but at the sale the sheriff, as in duty bound, offered the land in the small legal subdivisions of 40 acres each, and when he had sold four 40's he realized enough money to pay the taxes and costs on the whole half section; therefore he did not sell the N. E. ¼, but that remained to the owner. The purchaser at the sheriff's sale sold the W. ½ of the N. W. ¼ to F. and T. J. Friend and the E. ½ to Price. These titles come by mesne conveyances to Tatum, who conveyed the same to defendant Griffin taking a mortgage back for the purchase money. That is the title claimed by the defendants Griffin and Tatum in this suit. It was admitted at the trial that the half section of land described in the petition belonged to one David Fleming in his lifetime, who died in 1898 testate leaving the plaintiff herein, Lucy Fleming, his wife, his sole devisee. She owns the land now if the title did not pass from her at the sheriff's sale under the tax judgment in January, 1901. The plaintiff now contends that that sale was void because the petition on which the tax judgment was founded does not state any one as the defendant. The parties are named in the caption of the petition as follows: "The State of Missouri, at the Relation and to the Use of A. W. Noel, Collector of the Revenue in and for the County of McDonald, in the State of Missouri, Plaintiff, v. David Fleming, if living, or, if dead, his Unknown Heirs or Devisees, Defendant." The sufficiency of the petition is not challenged, except in one other respect, which will be noticed hereinafter. On filing the petition and affidavit attached, the clerk in vacation made an order of publication which was published. The style of the case in the order of publication was the same as that in the caption of the petition as above shown; in all other respects the order was in due form. While F. and T. J. Friend held the title, they acquired to the W. ½ N. W. ¼ of this section by deed from the purchaser at the sheriff's sale, and Price held the like title to the E. ½ of that quarter, the plaintiff in this suit brought two ejectment suits, one against the Friends and the other against Price, to recover the parts held by them respectively. The defendants in those two suits filed answers in which they set up as the foundation of their titles the sheriff's deed above mentioned, and deeds from the purchaser to them, and the plaintiff filed a reply saying that "the pretended deeds held by them are void." The suit against the Friends went to final judgment in their favor, and the plaintiff dismissed the suit against Price. In the case at bar defendants plead the judgment in the Friends suit as res adjudicata, saying that that suit was by the answer converted into a suit in equity in which the validity of the sheriff's deed was in issue and adjudged. The record in that case was admitted in evidence on the trial in this case over the plaintiff's objection. As already said, the judgment was for the defendants, vesting the whole half section in defendant Griffin, and the plaintiff appealed.

1. Appellant's main point is that "the petition does not definitely state any one as defendant." Appellant in her brief says that it should have stated either that David Fleming was dead, in which event the notice should have been to the "unknown heirs and devisees of David Fleming, deceased"; or the pleader should have "declared his belief that Fleming was either dead or living and his ignorance whether it be one or the other," under the terms of section 626, R. S. 1889, now section 1828, R. S. 1909. That section is: "Eit...