Himmelberger-Harrison Lumber Company v. Deneen

Decision Date18 May 1909
PartiesHIMMELBERGER-HARRISON LUMBER COMPANY, Appellant, v. J. W. DENEEN
CourtMissouri Supreme Court

Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.

Affirmed.

Oliver & Oliver and Wammack & Welborn for appellant.

The trial court erred in hearing testimony on the respondent's objection to the introduction of the sheriff's deed before the appellant had closed its testimony. This practice is confusing and has been criticised by this court. Wheeler v. Reynolds Land Co., 193 Mo 288.

C. L Keaton and Houck & Houck for respondent.

The court did not err in hearing the evidence to prove that the tax title from the common source, J. W. Deneen, was absolutely void, immediately upon its being offered as a sole foundation and base on which appellant's title rested. It was a matter in the discretion of the court and "the plaintiff suffered no injury by this course; the chain of title under which he claimed was really ended with the void tax deed." The receiving of the evidence of defendant out of its order did not affect the merits of plaintiff's case. Wheeler v. Reynolds Land Co., 193 Mo. 279.

OPINION

FOX, J.

This action was commenced in the circuit court of Stoddard county on the 13th day of January, 1905, under the provisions of section 650, Revised Statutes 1899. It was sought by this action to ascertain and determine the title between the respective parties to this suit to three hundred and twenty acres of land, described as follows: The south half of section 23, township 27, range 12 east, situate in Stoddard county, Missouri.

The petition alleged that the plaintiff was the owner of the land in controversy, and further alleged that the plaintiff and its grantors had been in the actual, open, notorious, hostile, continuous, adverse possession under a bona fide claim of title for more than ten years prior to the institution of this suit.

The defendant answered, admitting that he made claim to the land, and asserted ownership in fee therein, and denied all other allegations in the petition.

Upon the trial in the court below it was agreed that J. W. Deneen, the defendant in this cause, was the record owner of this land on March 5, 1886, and that the deed recorded in the recorder's office of Stoddard county, Missouri, recited his residence or location as in Gentry county, Missouri.

Appellant in this cause claims title to the land in controversy upon three grounds: First, upon a sheriff's deed under tax judgment and special execution, dated September 16, 1891, and recorded in the land records of Stoddard county, Missouri, in record book 2, page 18, and by mesne conveyances from the purchaser under the tax deed to the plaintiff in this cause. Second, adverse possession for ten years by the appellant. Third, laches and estoppel on the part of the respondent.

When the plaintiff offered in evidence the sheriff's deed under the tax judgment, the defendant interposed an objection to such deed for the following reasons: "Because the court had no jurisdiction to render judgment, and there was a summons sent out dated the 29th day of May, 1890, returnable to the second Monday in September, 1890, and the sheriff returned it on the 12th day of June following, which is 88 days before the return day of the writ."

In support of this objection the defendant was permitted, over the objection of the plaintiff, to offer the following testimony: (a) The original petition for back taxes filed February 7, 1890. (b) The summons that was issued by the clerk of the Stoddard County Circuit Court, directed to the sheriff of Gentry County, Missouri, dated May 29, 1890, and made returnable to the second Monday in September, 1890, with the following endorsements thereon:

"Sheriff's return: Executed the within writ in the county of Gentry, on the 12th day of June, 1890, by searching for within named J. W. Deneen and (he) not being found in this county. W. S. Jennings, sheriff of Gentry county, Mo." And in the handwriting of the sheriff of Gentry county the following endorsement was made and written on said summons: "I can not find anyone that ever knew this man in this county."

(c) Next, an entry in the circuit court record of Stoddard county, Missouri, made on Saturday, November 22, 1890, it being the 12th day of the September term, 1890, of said circuit court, as the same appears in record book "N" page 263. Said entry recites that: "It appearing to the satisfaction of the court that the defendant herein can not be served with summons, it is ordered by the court that publication be made notifying the defendant that an action has been commenced against him," etc., using the appropriate and usual language used in making an order of publication in term time. (d) Next, the publication itself and the affidavit of the publisher showing the weeks in which the notice appeared in its paper, and the proof of publication.

This was all the testimony offered by the defendant in support of his objection to the introduction of the deed. Th...

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