Fontaine v. Hudson

• Decision Date: 14 November 1887
• Citation: 5 S.W. 692,93 Mo. 62
• Parties: FONTAINE and others v. HUDSON, Collector, etc., and others.
• Court: Missouri Supreme Court

5 S.W. 692

93 Mo. 62

FONTAINE and others v. HUDSON, Collector, etc., and others.

Supreme Court of Missouri.

November 14, 1887.

1. JUDGMENT — RENDITION AND ENTRY — RECORDS NOT SIGNED BY JUDGE.

It is not essential to the validity of the records of courts in Missouri that they should be signed by the judge, and a valid judgment will support an execution issued in conformity therewith, although the formal record evidence of its rendition may not have been in existence at the time execution issued.

2. QUIETING TITLE — VOID TAX JUDGMENT — REMEDY AT LAW.

Plaintiffs, claiming to be the owners of property sold under execution of a judgment for taxes, alleged that they had not been made parties to the tax suit, and that, therefore, the judgment was a nullity as to them, and that the title of purchaser under such execution was a cloud on their title. Held, that it was merely a question as to who held the paramount legal title, and presented no feature calling for the interposition of a court of equity.

Appeal from St. Louis circuit court; ELMER B. ADAMS, Judge.

F. T. Farish, for appellant. M. Hilton, for respondent.

BRACE, J.

In an action commenced in the circuit court of the city of St. Louis, to the October term, 1881, thereof, in which the state of Missouri, at the relation of Nathaniel C. Hudson, collector of said city, was plaintiff, and the "unknown heirs of Mary O. Smith" were defendants, for the recovery of delinquent taxes for the year 1879, due on "lot 98 in block 31 in North St. Louis Addition," the plaintiff, on the twenty-second of March, 1882, recovered judgment for the amount of taxes found to be due thereon for the year 1879, and costs. On the seventh of April, 1882, special execution was issued on said judgment, by virtue of which the sheriff, on the twenty-second of May following, sold said real estate to Mary Wing for the sum of $518; the said Mary Wing received the sheriff's deed for said real estate, and thereafter conveyed the same to Mary E. Tanner, who, on the tenth of June, 1882, gave a deed of trust on said real estate to John W. Collins, and thereafter made conveyances of said real estate to Anna M. Hilton. On the fifth of April, 1883, the present action was instituted in said circuit court by the plaintiff, Lamar Fontaine, and Lemuella S. Fontaine, his wife, Mary A. Brickell, W. S. Reid, John W. Reid, and M. M. Puryear, against the defendants, the said Nathaniel C. Hudson, collector, Mary Wing, Mary E. Tanner, John W. Collins, and Anna M. Hilton, and Matthew Hilton, husband of said Anna M., in which the plaintiffs claim that they are, and were at the date of the institution of said back tax suit, the owners of said real estate, but were not made parties thereto, and had no notice thereof, and by which they seek to have set aside and canceled the judgment rendered in said suit, the sale made by the sheriff thereunder, the sheriff's deed to Mary Wing, and the subsequent conveyances to the other defendants, for the reason that the same are a cloud upon the title of plaintiffs to said property. The defendants, in their answer, denied generally the allegations of the petition; the case was submitted to the court on the evidence introduced by plaintiffs, the defendants offering none, and, upon the hearing, plaintiffs' bill was dismissed, and judgment rendered against them for costs, from which they appeal, assigning for error that the judgment was against the law and the evidence in the case.

The material facts disclosed by plaintiff's evidence, as it appears in the record before us, are substantially as follows: W. C. Jamison testified that in the year 1844 or 1845, M. C. Cheatem, who, with H. B. Brickell, was trustee of the property in controversy under a conveyance made by Mary O. Smith in 1843, employed him to look after the lot and pay the taxes; that for some years he continued to pay the taxes on it; that for a time Mr. Cheatem sent him the money to pay the taxes on it, till finally he leased it to Messrs. Schulenberg & Boeckeler for the taxes; that he rented it to them between 1850 and 1860, they agreeing to pay the taxes; that thereafter he gave the matter no further attention, except that once he tried to sell the lot, and drew a deed conveying the same, which deed was signed by M. C. Cheatem and H. B. Brickell as grantors; that in all he did he acted for Cheatem, and knew no one else represented or interested in the lot; that it was assessed in the name of M. C. Cheatem from 1862 down to and including 1879, and after that, in 1880, 1881, and 1882, to Lamar Fontaine.

Charles W. Behrens testified that he was secretary of the Schulenberg & Boeckeler Lumber Company; that he has known the property in question for 15 or 16 years; that it was used by and in the possession of A. Boeckeler & Co., then of Schulenberg & Boeckeler, and then of the Schulenberg & Boeckeler Lumber Company; that these parties used said lot in connection with their mill, and for piling lumber; that they had always paid the taxes, except for 1879.

A. Boeckeler testified that he was president of the Schulenberg Lumber Company; that that company succeeded to the business of Schulenberg & Boeckeler; that Brotherton & Dryden first had possession of the lot from 1858 to 1864; that they were succeeded in the possession by Dryden, Overstoltz & Co., in 1864, and they by A. Boeckeler & Co. in 1869, and the latter concern afterwards by Schulenberg & Boeckeler, and they by the lumber company; that from 1864 to 1869 the lot was rented, the occupants agreeing to pay the taxes as rent; that in 1869 A. Boeckeler & Co. took it, and continued holding and using the same as their predecessor, and so since the successors aforesaid of A. Boeckeler & Co. have continued to hold and use the lot; that the lumber company and their predecessors had always paid the taxes, except those of 1879, which were overlooked;" and on cross-examination this witness testified: "We never had a lease from Cheatem. Knew that Jamison had control of the lot. Never had a contract with Jamison or Cheatem directly. We took possession and paid the taxes. It was so done by Dryden, Overstoltz & Co., and we stepped in their shoes. I never saw or heard of Mary O. Smith before the tax sale, nor of the plaintiffs in this suit."

It was further shown by the plaintiffs in...