Harrison Machine Works v. Bowers
| Decision Date | 22 December 1906 |
| Citation | 98 S.W. 770,200 Mo. 219 |
| Parties | HARRISON MACHINE WORKS, Appellant, v. BOWERS |
| Court | Missouri Supreme Court |
Appeal from Texas Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded (with directions).
M. T January for appellant.
(1) The fact that the deed from Lewis M. Clark to John H. Clark was acknowledged before a justice of the peace in Livingston county did not impair its effect as notice, having been recorded in 1867. Secs. 3118, 3119, R. S. 1899; Williams v. Butterfield, 182 Mo. 181; Geer v. Lumber & Mining Co., 134 Mo. 94; Bank v. Corandel, 150 Mo. 570. (2) All irregularities in the assessment of taxes are concluded by the tax judgment and can not be inquired into in a collateral proceeding. Warren v. Manwarring, 173 Mo. 21; Stevenson v. Black, 168 Mo. 549; Lovitt v. Russell, 138 Mo. 474; State ex rel. v Hunter, 98 Mo. 386; Allen v. Ray, 96 Mo. 542; Jones v. Driskell, 94 Mo. 190. (3) Because land was sold in a body instead of by smallest subdivisions will not authorize a collateral attack on the sale. Yeaman v Lepp, 167 Mo. 61. (4) The description of land in the order of publication and judgment in tax sale of 1888 against Elinor F. Wells was sufficient. State ex rel. v. Vaile, 122 Mo. 33; Auditor-General v. Sparrow, 116 Mich. 586; R. S. 1899, sec 9328; Chestnut v. Harris, 43 S.W. 977. (5) Defendant is estopped to deny the title of the common source unless he can trace back to the true owner. Smith v. Lindsey, 89 Mo. 76; Grandy v. Casey, 93 Mo. 595; Gage v. Cantwell, 91 S.W. 119. (6) A suit for taxes is properly brought against the record owner, or the real owner. If against neither, title will not pass by sale under the judgment. Vance v. Corrigan, 78 Mo. 94; Allen v. Ray, 96 Mo. 542. (7) A suit is not begun against a party until he is made a defendant. Jaicks v. Sullivan, 128 Mo. 177; Smith v. Barrett, 41 Mo.App. 460.
A. E. McGlashan for respondent.
(1) Lucy T. Collier acquired the title to this land by her purchase at the tax sale of 1879. Lewis M. Clark was the apparent record owner. (2) The tax deed to W. R. Shuck for the taxes of 1886 is absolutely void and conveyed no title: (a) Because the land described in the sheriff's deed was not the same land described in the order of publication. Stewart v. Allison, 150 Mo. 344; Winningham v. Trueblood, 149 Mo. 575. (b) Because there was no adequate description of the land in the order of publication. (c) Because there was no adequate description of the land in the judgment. (d) Because the order of publication, the judgment and the sheriff's deed each described different land. (e) Because the tax attorney, W. R. Shuck, was the purchaser at the tax sale. (f) Because the assessment book on which the tax for 1886 was levied was not certified to at all by the assessor. (g) Because the defendant Elinor F. Wells was a resident of the State, as shown by the deed record. Payne v. Lott, 90 Mo. 676. (h) Because Elinor F. Wells was not notified before the sale of her land, as provided by section 3199, Revised Statutes 1899. (i) Because there is no statement in the order of publication that defendants are non-residents of the State. (j) Because the tax judgment was only for $ 6, while the execution and sheriff's deed show judgment for $ 6.59. (k) Because the land was sold in bulk, not having first been offered in 40-acre subdivisions. Roth v. Gabbert, 123 Mo. 30; Yeaman v. Lepp, 167 Mo. 61. (3) Under the maxim, "expressio unius," only such letters can be used in tax proceedings as is provided in section 9328, Revised Statutes 1899, and when so used as provided in said section, they will still be insufficient unless the land is so described that it can be identified and located. Lowe v. Ekey, 82 Mo. 286. (4) There was no evidence to prove that it was common usage to describe the land as described in the order of publication, or to show that it could be identified and located by such description. (5) When constructive service is had in lieu of personal, there must be a strict compliance with the statute to bring defendant into court and give the court jurisdiction of the subject-matter. Wade on Notice (2 Ed.), 1030; Charles v. Morrow, 99 Mo. 638; Harness v. Cravens, 126 Mo. 588. (6) The tax attorney, W. R. Shuck, is chargeable with all precedent irregularities, whether he was aware of them or not. Hence, his sheriff's deed was void. 2 Freeman on Executions (2 Ed.), sec. 340; Harness v. Cravens, 146 Mo. 259. (7) There is no common source of title. Plaintiff has no title. (8) Defendant can attack plaintiff's title, and if he proves it invalid, the plaintiff is not entitled to a decree. Gage v. Cantwell, 191 Mo. 699; Graton v. Land Co., 189 Mo. 322; Wheeler v. Reynolds, 193 Mo. 279.
This is a suit to ascertain, determine and quiet title under section 650, Revised Statutes 1899, in and to the south half of section 9, township 31, range 7, in Texas county. Plaintiff claims ownership and title (tracing its title back to the government), and avers that defendant makes a claim adverse to its estate, based on a sheriff's deed executed on a sale of said lands for taxes, at which one Dooley became the purchaser -- defendant holding under mesne conveyances from said Dooley.
The answer was a general denial.
The finding was that plaintiff had no title to the land, and it was adjudged that plaintiff take nothing, that defendant go hence without day and recover his costs, etc.
From that judgment plaintiff appealed.
It will simplify the case to say that both parties litigant introduced a chain of title and stood on dry, paper titles -- purporting to deal with the fee, there being no contingent, reversionary or equitable interests involved and no possession under color of title, or otherwise, in either party -- the land being wild and uninclosed, as we understand it.
Plaintiff, to sustain the issues on its part, introduced the following muniments of title:
1. A platbook of original entries showing the land entered by Erastus Day in 1859.
2. A deed from Erastus Day to Lewis M. Clark, dated February 31 (?) 1859, recorded October 30, 1866.
Plaintiff offered the record of this deed, and defendant objected for the reason it was "not the best evidence."
Thereupon plaintiff (to account for the absence of the original deed) read the deposition of Cyrus Thomson, president of plaintiff, who said plaintiff sold farm machinery to one John Hinkle and took notes in payment, secured by a deed of trust on the land in question; that plaintiff had the deed of trust until November 15, 1891, when it was sent to one Leavitt at Houston, Missouri, to foreclose, because the notes were unpaid; that at such foreclosure the property was bought in by plaintiff and a trustee's deed executed, which was filed for record in the office of the recorder of deeds of Texas county and there remained until December 14, 1903, at which time it came into possession of Mr. January, plaintiff's attorney at Nevada, Missouri; that plaintiff never had possession of said trustee's deed, nor of said trust deed since it was sent to Mr. Leavitt, and never had possession of any title deeds to the land in controversy and witness knows nothing of the whereabouts of said deeds, and says it is not in plaintiff's power to produce any of them. On the production of this testimony, defendant's objection to the record of the deed from Day to Clark was overruled.
3. A warranty deed from Lewis M. Clark and wife to John H. Clark, dated April 2, 1867, and recorded May 20, 1867.
This deed narrates that grantors and grantee reside in Livingston county, Missouri, and the acknowledgment was taken in that county before one Eli Hannah, a justice of the peace there. Defendant objected to this deed for the following reasons: because it was not acknowledged by a notary authorized to take acknowledgments in Texas county; and because it was acknowledged before a justice of the peace of Livingston county who had no authority to take acknowledgments of deeds to Texas county lands. These objections were overruled.
4. A warranty deed from John H. Clark and wife to Elinor F. Wells, dated April 17, 1879, and recorded April 25, 1879.
5. A sheriff's deed from McBride, sheriff of Texas county, selling the interests of Elinor F. Wells, Rexford Wells, Ashford H. Stone, J. Sherman, W. R. Shuck, and S. M. Hubbard in the land, under a tax judgment dated May 30, 1888, for the taxes of the year 1886, to W. R. Shuck -- said deed dated November 21, 1888, and recorded December 5, 1888.
To this deed, defendant interposed the objection that the land was sold in bulk and not by subdivisions; that the assessment upon which the tax was based was void; that the judgment upon which the deed was based was void in not describing the land in question; and that Wells had no title at the time of the sale. This objection was overruled.
6. A quitclaim deed from W. R. Shuck to Spencer M. Hubbard, dated December 27, 1888, and recorded December 28, 1888.
This deed was objected to by defendant for the reason Shuck had no title; and the objection was overruled.
7. A warranty deed from Spencer M. Hubbard and wife to John W. Hinkle, dated December 10, 1889, and recorded May 4, 1891.
Defendant objected to this deed for the reason Shuck had no title, which objection was overruled.
8. A trust deed, with power of sale in the sheriff on failure or refusal of the trustee named to act, from John W. Hinkle and wife to G. W. Rhey, trustee for plaintiff, dated May 4, 1891, and recorded May 5, 1891.
The abstract states that "this deed was a trust deed in usual form." It says nothing about the acknowledgment. Defendant objected to the deed and gave as his reason that "it is not a deed under sale and was not such an instrument as...
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