Huiskamp v. Miller

• Decision Date: 30 March 1909
• Citation: 220 Mo. 135,119 S.W. 633
• Parties: HUISKAMP et al. v. MILLER et al.
• Court: Missouri Supreme Court

119 S.W. 633

220 Mo. 135

HUISKAMP et al. v. MILLER et al.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

Rehearing Denied May 18, 1909.

PROCESS (§ 96)—SERVICE—PUBLICATION—AFFIDAVIT.

The publication of process against nonresident individual defendants is not invalid because the affidavit of nonresidence on which the order of publication is based does not also allege, in the language of Rev. St. 1899, § 575 (Ann. St. 1906, p. 601), that such defendants cannot be served "in this state in the manner prescribed in this chapter," the quoted phrase being applicable to foreign corporations, and not to individuals.

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

Action by Herman J. Huiskamp and others against John N. Miller and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded, with instructions to enter judgment for defendants.

This suit was brought in Stoddard county, Mo., by the plaintiffs, under the provisions of section 650, Rev. St. 1899, by which it was sought to have the circuit court of Stoddard county ascertain and determine the estate, title, and interest of the plaintiffs and defendants herein, respectively, in and to all of the N. E. ¼, section 18, township 24, range 12 E., containing 160 acres more or less. The petition was in the usual and ordinary form, alleging that the plaintiffs were the owners in fee simple of the real estate described. The defendants John N. Miller and Albert H. Carter filed an answer, in which they denied each and every allegation contained in the petition, except the one in which it was alleged that they claimed title to the land described in the petition. Further answering, these defendants alleged that they were the owners in fee simple, and claimed title, to the land involved in this suit. There was also embraced in the answer a plea of the statute of limitations, in which it was alleged that the defendants had been in the exclusive, open, continuous, adverse possession, under claim and color of title, to said land for more than 10 years prior to the institution of this suit by the plaintiffs, and had regularly paid all taxes levied and assessed against the same, and during all that time, neither the plaintiffs, nor any one for them, have made any claim of ownership or interest in and to said property.

Upon the trial of this cause it was agreed that Herman J. Huiskamp was the common source of title through whom plaintiffs and defendants claim, and that he acquired title to the premises in controversy June 21, 1870, by warranty deed, which was placed upon record August 5, 1870. The plaintiffs then offered a quitclaim deed from Herman J. Huiskamp and wife to C. L. Keaton and W. C. Keaton, dated October 3, 1905, record October 21, 1905, in Book 42, p. 35, of the land records of Stoddard County, conveying the lands in controversy. At this stage of the trial Mr. Keaton, representing the plaintiffs, took a nonsuit as to the northeast quarter of the northeast quarter, the Matless land. Upon this testimony the plaintiffs rested their case. The defendants then offered in evidence a sheriff's deed for taxes from J. R. Barham, sheriff of Stoddard county, Mo., to Emil Weber, dated September 10, 1890, filed for record September 11, 1890, and recorded in Sheriff's Deed Book No. 1, p. 301, of the Land Records of Stoddard County, conveying the interest of Herman J. Huiskamp in the west half of the northeast quarter of section 18, township 24, range 12 East. To the introduction of this deed plaintiffs interposed an objection, on the ground that the tax proceedings upon which such deed was based were absolutely void and subject to collateral attack, and for the further reason that the court had no jurisdiction of the person of the owner of the real estate therein sought to be conveyed, and had no jurisdiction of the subject-matter of said suit. The plaintiffs, in support of said objection, offered the petition in the tax suit by the collector of Stoddard county against Herman J. Huiskamp. The form of this petition is not challenged, except as to the allegation of nonresidence of the defendant. Therefore it is unnecessary to reproduce in full the petition in such tax suit. The petition contained the following averment as to the residence of the defendant; and as this entire legal controversy hinges upon that averment, it is well that we quote the allegation respecting the nonresidence of the defendant. It was averred: "Plaintiff further states that said defendant Herman J. Huiskamp is not a resident of the state of Missouri." In addition to this there was attached to the petition the affidavit of R. P. Owen, attorney for the collector, in which it is stated that the statement in the foregoing petition in regard to defendant being a nonresident is true, to the best of his knowledge and belief; signed R. P. Owen, and subscribed and sworn to before a proper officer. Plaintiffs, in further support of their objection to the sheriff's deed, offered the order of publication, which was in the usual form, alleging, among other things, that the plaintiff comes and files his petition and affidavit, alleging, among other things, that the defendant is not a resident of the state of Missouri. Following that is the publication as ordered by the clerk. There was also introduced the affidavit of the proof of publication by the publisher of a weekly newspaper published in the county of Stoddard and state of Missouri. Next plaintiffs offered in support of their objection to the sheriff's deed the judgment in the tax suit. The form of this judgment is not challenged. Therefore there is no necessity for a reproduction of it. It was simply the ordinary judgment in a tax proceeding rendered by the circuit court of Stoddard county, Mo., on March 6, 1890, against Herman J. Huiskamp, for taxes on the land involved in this controversy. Upon this showing the court sustained the objection of plaintiffs to the introduction of the tax deed by the defendants, and said deed was excluded, to which ruling and action of the court the defendants excepted.

The sheriff's deed, which was excluded by the court, was in the usual and ordinary form, and there is no challenge on the part of the plaintiffs as to its sufficiency. Therefore there is no necessity for incorporating the deed in this statement. Defendants next offered a sheriff's deed for taxes from J. R. Barham, sheriff of Stoddard county, Mo., to C. A. Kitchen, dated September 12, 1890, filed for record July 9, 1891, and recorded in Sheriff's Deed Book 2 at page 2 of the Land Records of Stoddard County, conveying the interest of Herman J. Huiskamp in the S. E. ¼ of the N. E. ¼ of section 18, township 24, range 12 E. The plaintiffs interposed the same objection to this deed as was made to the other sheriff's deed indicated in this statement, and offered in support of such objection the same testimony—the petition, the order of publication, the affidavit for publication, and the proof of publication. These files being the same as those heretofore indicated in support of plaintiffs' objection to the sheriff's deed made to Emil Weber, there is no necessity for making any further reference to such files. The objection of the plaintiffs to the introduction of this tax deed was sustained, and the deed excluded, to which action of the court the defendants excepted at the time. This last sheriff's deed is in the usual and ordinary form, and there is no controversy over the form of the deed. Hence there is no necessity for incorporating this deed in the statement.

Following these two sheriff's deeds, defendants offered a special warranty deed from C. A. Kitchen and wife to Miller, Ladd & Co., dated July 6, 1891, filed for record July 9, 1891, and recorded in Book 10, p. 575, conveying the S. E. ¼ of the N. E. ¼ of section 18, township 24, range 12 E. An objection was interposed to the introduction of this deed, on the ground that the grantor had no title, and could convey none. The objection of plaintiffs was by the court sustained, to which action of the court the defendants excepted at the time. Defendants next offered a special warranty deed from Emil Weber, who was single, to Miller, Ladd & Co., dated September 25, 1891, recorded September 26, 1891, in Book Y, page 387, conveying the W. ½ of the N. E. ¼ of section 18, township 24, range 12 E. The same objection was made by the plaintiffs to the introduction of this deed—that is, that the grantor had no title and could convey none—and the objection was by the court sustained, to which action of the court the defendants excepted at the time. Finally defendants offered a quitclaim deed from F. M. Ladd and wife to J. N. Miller and A. H. Carter, composing the firm of Miller & Carter, dated September 5, 1892, filed for record September 6, 1892, and recorded in Book 2 at page 496, conveying the lands in controversy. The same objection was offered to this deed as was made to the immediately two preceding deeds offered in evidence, and the objection was sustained, and the deed excluded, to which action of the court the defendants excepted.

Albert H. Carter, one of the defendants in this cause, was sworn and introduced on the part of the defendants. His testimony was to the effect that he was a member of the firm of Miller, Ladd & Co., which was composed of J. N. Miller, F. M. Ladd, and himself. It was a copartnership, and was voluntarily dissolved about 1892, by Mr. Ladd withdrawing from the firm. The business thereafter was conducted by Miller and Carter under the firm name of Miller & Carter. This witness testified that he was acquainted with the land in controversy, and had known it ever since he and his partner bought it in 1891. There is none of it under fence, and none of it in cultivation. He stated that the defendants had a farm adjoining it, which had been in cultivation a number of years, and the only use then made of the land in controversy was to take...