Howard v. Brown
| Decision Date | 19 June 1906 |
| Citation | 95 S.W. 191,197 Mo. 36 |
| Parties | WILLIAM A. HOWARD v. HENRY P. P. BROWN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.
Reversed and remanded (with directions).
W. H Haynes for appellant.
(1) The trial court erred in admitting in evidence, over the objection of appellant, city tax deed. The same does not in any particular comply with the law in force at the time it was made, nor does the notice of sale comply with the law in such cases. (2) The trial court erred in admitting in evidence, over the objection of appellant, the papers records and judgment in the case of Barber Asphalt Co. v Mary A. Brown et al.; the respondent herein, Henry P. P. Brown, was described in the order of publication as Henry T. Brown, and the proof of publication does not show that it was published as required by law at that time; that is, for four weeks successively, the last insertion to be at least four weeks before the commencement of the term at which defendant is required to appear. R. S. 1879, sec. 3500. (3) The court erred in admitting in evidence, over the objection of appellant, the sheriff's deed to Silas Woodson, under special execution sale, in case of Barber Asphalt Co. v. Mary A. Brown et al., for the reason that the judgment against this appellant was void for want of service on him in said cause, the publication not stating his name, nor was it published as required by law at that time. R. S. 1879, sec. 3500. (4) The court erred in admitting in evidence, over the objection of appellant, the deed from Silas Woodson and wife to Parmelia J. Brown, for the reason that it is a quit-claim and at the time it was made, September 26, 1888, Silas Woodson had no interest in the premises mentioned in same; and for the further reason that the sheriff's deed to him, offered in evidence, had not been executed and was not executed until September 27, 1888. (5) The court erred in admitting in evidence the deed of Samuel H. Smith, administrator of Parmelia J. Brown, deceased, to William A. Howard, the respondent herein, over the objection of appellant, for the reason that the respondent failed to show any authority upon the part of Smith, the administrator, to sell the property. (6) The court erred in admitting in evidence, over the objection of the appellant, the contract between the parties, Exhibit A; but, when admitted, it shows that the appellant, Henry P. P. Brown, by agreement of all the parties, had an interest in the property; and the court erred in finding that he had no interest therein.
Grant S. Watkins for respondent.
(1) Notice was good as to Henry P. P. Brown. The middle letter is not a necessary portion of his name. In order to raise the question, it was necessary for defendant to plead it. Young v. Schofield, 132 Mo. 650. (2) The objection and the exceptions saved by appellant were general exceptions and without merit; neither could it be raised by collateral attack. The notice to Henry P. P. Brown and others in the case of the Barber Asphalt Paving Company was good and sufficient. The publication was sufficient. The first publication was on the 15th day of March, second on 22d, third on 29th, the fourth on the 5th of April, which was more than four weeks before the 7th day of May. The publication shows that it was first published on the 15th day of March, and was published five times weekly thereafter. Robbins v. Boulware, 88 S.W. 674; Russell v. McCoy, 165 Mo. 89; Ratcliff v. McGee, 165 Mo. 467; State v. Jones, 168 Mo. 401; Haywood v. Russell, 44 Mo. 252. The sheriff's deed proved itself. This deed could not be attacked in a collateral proceeding. R. S. 1899, sec. 3210; Saches v. Clingingsmith, 97 Mo. 406; Jordan v. Sunghnor, 107 Mo. 520; Robbins v. Boulware, 88 S.W. 674. The objection to said deed was not specific and raises no question in this court. Adair v. Mette, 156 Mo. 507; Drey v. Doyle, 99 Mo. 459; Schmidt v. Railroad, 163 Mo. 645; Taylor v. Pullen, 152 Mo. 440; Stephens v. Railroad, 87 Mo.App. 28. (3) Woodson took title from the date of the sale, and besides there was no objection made to the deed or exception saved in the trial court. Said deed was executed September 10. Strain v. Murphy, 49 Mo. 337; Schumate v. Reavis, 49 Mo. 333; Porter v. Mariner, 50 Mo. 364; Land & Lumber Co. v. Franks, 156 Mo. 689; Robbins v. Boulware, 88 S.W. 674; Young v. Schofield, 132 Mo. 650; Tleskenstein v. Baxter, 114 Mo. 493. For the further reason that it affirmatively shows that Woodson paid for property on September 10, on day of sale. (4) The administrator's deed had all of the necessary recitals and was prima facie evidence of the facts therein stated. It conveyed the title to Howard, and there were no exceptions made or saved at time of trial. R. S. 1899, sec. 172; Bray v. Adams, 114 Mo. 486.
Suit under statute to quiet title to real estate in St. Joseph.
George W. Brown, now deceased, was the common source of title. He left a widow, Mary Ann, who has since died, and nine children, all of whom are now dead except two daughters, Evelyn Knapp, widow of George Knapp, Ella Howard, wife of plaintiff, and Henry P. P. Brown, the defendant. None of the deceased children left issue except Mrs. Floyd, who left one child, Paul Floyd. One of the children of George W. Brown, Pearl, before her death, conveyed her interest by quit-claim deed to her mother, Mary Ann. The only one of the children of George W. Brown, deceased, whose title is in dispute here is the defendant, Henry P. P. Brown.
The plaintiff claims title under Parmelia Brown, one of the children of Geo. W. Brown, deceased, by the following chain of title:
1. By a quit-claim deed of August 24th, 1888, Parmelia acquired the title of all the heirs then living except Henry P. P. Brown and Paul Floyd.
To prove title as to the interests of Henry P. P. and Paul the plaintiff introduced the following:
2. A deed from the tax collector of the city of St. Joseph dated November 3d, 1887, reciting that the taxes on the land due the city for the years 1884 and 1885 were unpaid, that the regular proceedings as to advertisements, etc., were had, the property was offered for sale and struck off to one W. L. Buechle, to whom a certificate of purchase was given, which he had duly assigned to Parmelia Brown, and the statutory period of two years having expired therefore the land is sold to her.
When this deed was offered it was objected to on the ground: The Court: "Consider it in subject to the objection." Exception taken.
3. The record of the circuit court in a suit to enforce special taxbills against the land in suit wherein the Barber Asphalt Paving Company was plaintiff, and the widow, Mary Ann, and the heirs of Geo. W. Brown then living, were named as defendants. The defendant in the suit at bar was not described in that suit by the name of Henry P. P. Brown, but by the name of Henry T. Brown. The petition stated that the defendants William B. Floyd, Paul Floyd, George W. Brown and Henry T. Brown were non-residents of this State, and the court made an order of publication for them. The order of publication was made March 14, 1888, returnable the first day of the next term, which was May 7, and was published March 15, March 22, March 29 and April 5, 1888.
At the May term, 1888, all the defendants, except Paul Floyd, a minor who answered by guardian ad litem, made default, and after hearing proof the court rendered judgment declaring the tax bills sued on special liens on the respective lots and awarding special executions on the same. Executions issued and the property was sold by the sheriff to the highest bidder, Silas Woodson, on September 10, 1888, and sheriff's deed in due form delivered.
When that record was offered counsel for defendant made the following objection: "We object to it because it does not convey the interest of Henry T. Brown and others and the notice of publication against this defendant is insufficient." And when the sheriff's deed was offered it was objected to "as incompetent and irrelevant and as not affecting the interest of H. P. P. Brown in the premises." The objections were overruled and exceptions taken.
4. A quitclaim deed from Woodson and wife to Parmelia J. Brown dated September 25, 1888.
5. A deed from the administrator of the estate of Parmelia J. Brown deceased conveying lot 4, which is the lot in question in this suit, to the plaintiff, dated May 20, 1902, reciting due proceedings in the probate court and order to sell.
It appears from the oral evidence in the case that lots 5, 6 and 7, which are the subject of another suit between these parties, were sold by the administrator of the Parmelia Brown estate to one Shoup, and that proceedings were instituted by the heirs in the probate court to set aside that sale, and negotiations with Shoup were on foot to obtain the title from him. It also appears that Grace Brown, wife of defendant Henry P. P., had in 1899 bought a tax title under a sale for city taxes to lot 4, which lot is the subject of this suit. Information of those facts is necessary to understand the following agreement which was introduced in evidence by the plaintiff:
To continue reading
Request your trial