Himmelberger-Harrison Lumber Co. v. McCabe.

• Decision Date: 30 March 1909
• Parties: HIMMELBERGER-HARRISON LUMBER CO. v. McCABE et al.
• Court: Missouri Supreme Court

119 S.W. 357

220 Mo. 154

HIMMELBERGER-HARRISON LUMBER CO. v. McCABE et al.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

Rehearing Denied May 18, 1909.

1. PROCESS (§ 91)—PUBLICATION—CONDITION PRECEDENT—RETURN OF SUMMONS.

Rev. St. 1899, § 567 (Ann. St. 1906, p. 596), declares that every original writ shall be dated on the day it is issued, and shall be made returnable on the first day of the next term thereafter, but if the first day of such term shall be within 15 days thereafter, then the writ shall be made returnable on the first day of the second term. Section 577 (page 604) provides that when summons shall be issued against any defendant in certain cases, and the sheriff shall return that the defendant cannot be found, the court, on being first satisfied that process cannot be served, shall make an order for publication. Held, that where a summons issued against a nonresident of the county, returnable on the second Monday in September, 1890, was returned "not found" on July 25, 1890, such return before the return day was premature and insufficient to confer jurisdiction on the court to grant an order for publication.

2. PROCESS (§ 131)—RETURN—TIME FOR.

Though an officer may execute a writ as soon as it is placed in his hands, he has no right to return it not executed until the return day, it being his duty in the interim to use reasonable diligence to serve it.

3. PROCESS (§ 141)—RETURN—PRESUMPTIONS.

Where a sheriff's return on a summons showed that he had returned it not executed prior to the return day, the fact that there was no memorandum of the clerk showing when it was filed in his office was insufficient to justify a presumption that the sheriff did his duty and kept the summons in his possession, seeking to execute it until the return day.

4. ADVERSE POSSESSION (§ 16) — ACTS OF OWNERSHIP—CUTTING TIMBER—PAYMENT OF TAXES.

Where land was unfit for agricultural purposes and valuable mainly for timber, that plaintiff and its grantors paid the taxes, annually visited the land, and cut such timber as was profitable to remove, protecting the remainder against trespassers, looking after the land, and making log roads, were acts of ownership and did not constitute adverse possession.

5. ADVERSE POSSESSION (§ 31)—KNOWLEDGE BY FORMER OWNER.

In a suit to quiet title, plaintiff claimed under a void tax deed. There was no actual possession sufficient to authorize the presumption of notice to the true owner that his possession was interrupted and his title endangered. No substantial improvements were placed on the land, plaintiff and its grantors having simply paid the taxes, and at various times, as the supply of their mills needed it, removed timber from the land, which constituted its chief value. Held, that defendant was not chargeable with laches precluding his assertion of title to the land.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Suit by the Himmelberger-Harrison Lumber Company against Squire L. McCabe and another. Judgment for defendants, and plaintiff appeals. Affirmed.

This suit was instituted in Stoddard county, Mo., on the 13th day of January, 1905. It is brought upon the provisions of section 650, Rev. St. 1899 (Ann. St. 1906, p. 667).

It was sought by this proceeding on the part of the plaintiff to ascertain and determine the title to 400 acres of land, described in the petition as the south half of the southwest quarter and the east half of section 12, township 26, range 12 east, situate in the county of Stoddard and state of Missouri. The suit was originally brought against defendant Squire L. McCabe, but on the 15th day of January, 1906, John M. Sallee was made defendant upon his own motion, by reason of being purchaser from Squire L. McCabe, and filed an answer to the petition. The petition alleged ownership of the land, and further alleged actual, open, notorious, continuous, adverse possession for more than 10 years, and averred that during all that time it and its grantors exercised all the acts of ownership over said land to which it was susceptible, under a bona fide claim of title.

Defendant Sallee denied in his answer ownership of the land by the plaintiff. Sallee averred ownership of the land in himself as purchaser of the same on February 21, 1905, from Squire L. McCabe and wife by good and sufficient deed. It was also alleged in the answer that plaintiff claimed title to the land in controversy by virtue of a sheriff's deed executed on the 16th day of September, 1891, by one John R. Barham, sheriff of Stoddard county, to Isaac and John H. Himmelberger. Then follows the averment in the answer that said sheriff's deed was made and executed in pursuance of an execution issued upon an illegal judgment of the circuit court of Stoddard county rendered on the 7th day of March, 1891, in favor of Joseph Howell, collector of the revenue of said county, and against Squire L. McCabe, for certain delinquent taxes. Finally, it is alleged in the answer that no legal or valid judgment was in fact rendered or entered by said court in said cause; that said circuit court had no jurisdiction or power to enter or render any judgment in said suit because there was no legal or valid order of publication notifying the said McCabe of the pendency of said suit, and that said court had no jurisdiction or power to make the order of publication therein, and that the judgment, execution sale, and sheriff's deed under such judgment were each and all void and of no effect.

The replication of plaintiff consisted of a denial of each and every allegation of the matter set up in the answer. Upon the trial of this cause it was admitted that Squire L. McCabe was the common source of title, and that he was the record owner of this land on the 18th day of April, 1883, and that his deed was recorded in the recorder's office of Stoddard county. The deed recited the residence of McCabe as Gentry county, Mo.

Plaintiff offered in evidence the sheriff's deed from J. R. Barham, sheriff of Stoddard county, to Isaac and John H. Himmelberger, dated September 16, 1891, filed for record October 2, 1891, and recorded in Book 2, p. 8, conveying the lands in controversy. There is no necessity for reproducing this sheriff's deed in this statement. It is concededly in regular form, and recites all the statutory essentials as required by the statute, and is properly acknowledged and dated September 16, 1891.

There seems to be no controversy about the other conveyances offered by the plaintiff. It is sufficient to simply state that numerous other conveyances were offered by the plaintiff showing a regular chain of title from the purchaser at the sheriff's sale to the present plaintiff in this case.

There was then oral testimony offered by the plaintiff tending to show the nature and character of the acts of ownership exercised over the lands in controversy by the plaintiff and its grantors subsequent to the execution and delivery of the sheriff's deed. This testimony tended to show that these lands were unfit for cultivation or for agricultural purposes of any kind at the time they were purchased in 1891 by appellant's grantor, and that they are still unfit for agricultural purposes until drained and reclaimed. The testimony further tended to show that these lands were purchased chiefly for the standing timber upon them, and to supply the sawmills owned by the appellant and its grantors. The testimony further tended to show that the plaintiff and its grantors annually visited said lands and cut from them such timber as it was profitable to remove, and protected the remaining timber from those who were inclined to trespass upon it.

The defendants, for the purpose of destroying the legal force and effect of the sheriff's deed upon which the plaintiff must rely for its paper title to this land, offered testimony as follows: First, the petition in the tax case of the state of Missouri, at the relation of Joseph Howell, collector of the revenue of Stoddard county, against Squire L. McCabe in the circuit court of Stoddard county, filed on the 10th day of February, 1890, with the exhibits and indorsements. Second, the original summons that was issued in that case, bearing date July 18, 1890, directed to the sheriff of Gentry county, and made returnable on the first day of the next term of the Stoddard county circuit court, to wit, on the second Monday in September, 1890, together with the sheriff's return and indorsement made on said summons. The sheriff's return is as follows: "Executed the within writ in the county of Gentry, on the 25th day of July, 1890, by searching for within named Squire L. McCabe, and he not being found in this county. Non est. Fees, 50¢. W. S. Jennings, Sheriff of Gentry County, Mo." On this summons in the same handwriting is written the following further indorsement: "This man lives in Harrison county, Missouri." Third, the order of publication made in said cause on November 22, 1890, it being the twelfth day of the September term of said court, as the same appears in Record N, pp. 270 and 271, of the circuit court of said county. This order of publication is set out in full in the abstract. Its opening sentence is as follows: "Now comes the plaintiff by his attorney, and it appearing to the satisfaction of the court that the defendant herein cannot be served with summons, it is ordered by the court that publication be made notifying defendant that an action has been commenced against him in this court," etc. Fourth, the proof of publication made in said cause. Fifth, the entry of the circuit court of Stoddard county showing the entering up of the final judgment against the defendant on March 7, 1891, for the taxes then due against this land. Sixth, a quitclaim deed from Squire L. McCabe and wife to John M. Sallee, dated February 21, 1905, recorded March 3, 1905, in Book 35, p. 520, conveying the land described in this suit. To this last offering the appellant...