Harvey v. Gregg

• Decision Date: 01 June 1915
• Docket Number: No. 16837.,16837.
• Citation: 177 S.W. 593
• Parties: HARVEY et al. v. GREGG et al.
• Court: Missouri Supreme Court

177 S.W. 593

HARVEY et al. v. GREGG et al.

No. 16837.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by James C. Harvey and another against R. C. Gregg and others. From the judgment, plaintiffs appeal. Affirmed.

Plaintiffs allege that they own the S. ½ of lots 1 and 2 of the S. W. ¼ and the S. ½ of the N. ½ of lot 2 of the S. W. ¼ of section 6, township 36, range 6 west, in Phelps county, Mo.; that all of defendants except one are nonresidents; that plaintiffs were injured by the cutting and removal of timber by the defendants and the destruction of fences on said land in 1908 and 1909. Two of the defendants, R. C. Gregg and J. M. Dougherty answered by cross-bill, alleging that defendant Gregg owned the land in fee, and that Dougherty occupied the same as his tenant, and praying that the title thereto be determined in their favor against the claim of plaintiffs, which it was averred rested upon a void judgment and sale in a tax suit. The reply denied that the plaintiffs' title to the S. ½ of the N. ½ of lot 2 of the S. W. ¼ of section 6, township 36, range 6 west, was based on the sheriff's deed referred to in the answer, but as to this particular parcel of land alleged that plaintiffs' title thereto was derived by mesne conveyances from the patentee of the government. The reply admitted that plaintiffs claimed title to the balance of the land in controversy under the sheriff's deed in a tax suit, but averred that said deed was valid, and the proceedings on which it was founded were in compliance with the statute. The other defendants defaulted as to publication for them. The cause was submitted to the court, and a judgment rendered in plaintiffs' favor as to a portion of the land claimed by them under deeds from the patentee of the government, and against plaintiffs as to the lands claimed by them under the deed from the purchaser at the tax sale. Plaintiffs duly appealed from said decree, assigning for error the ruling of the trial court that the tax proceedings upon which their title to a portion of the land rested were void.

Watson & Livingston and Holmes & Holmes, all of Rolla, for appellants. W. D. Jones, of Rolla, and C. H. Shubert, of Oklahoma City, Okl., for respondents.

BOND, J. (after stating the facts as above).

It is conceded in the able argument of the learned counsel for appellant that the sheriff's deed conveyed no title to the land therein described, if the tax proceedings upon which it was founded gave the court no jurisdiction of the person of the defendants to that suit. The trial judge held the proceedings insufficient for that purpose, by reason of what appears on the record as to the Order of publication made for the defendants in the tax suit. The record of that suit shows an order of publication sufficient in form, which was duly published, but it wholly fails to disclose the service and return of the alias summons issued to Dent county by the circuit court of Phelps county, wherein the tax suit was pending. The entire record is a blank so far as that summons is concerned. It fails to show that it was received by the particular officer of the county to which it was sent, or that it was served, or that it, was returned. Though silent as to all these matters, the record of the tax suit recites, in its order for the publication made at the next term of the court, to wit:

"It appearing to the satisfaction of the court that the defendants cannot be summoned in this action se that the ordinary process of law cannot: be served upon them, whereupon it is ordered by the court that the defendants be notified by publication that plaintiff has commenced suit against them in this court, the general nature and object of which is to collect taxes clue and unpaid on the aforesaid real estate situated in Phelps county, Mo., and to enforce the lien of the state of Missouri thereon, and...