Jones v. Driskell

• Decision Date: 20 February 1888
• Citation: 94 Mo. 190,7 S.W. 111
• Parties: JONES v. DRISKELL et al.
• Court: Missouri Supreme Court

7 S.W. 111

94 Mo. 190

JONES v. DRISKELL et al.

Supreme Court of Missouri.

February 20, 1888.

1. TAXATION — COLLECTION BY SUIT — ACT MO. 1877 — IMPEACHMENT OF JUDGMENT.

A judgment of the circuit court in a back-tax suit, under the Mo. act of 1877, by the state, for the collection of taxes, is the judgment of a court of general jurisdiction, proceeding under the common law, and having a jurisdiction independent of the act, and the objections that the assessor's book was not verified, and that certain taxes had been paid before the suit was instituted, are matters of defense to the suit, but cannot be used in a collateral attack upon the judgment, in that action.

2. SAME — SALE — JUDGMENT — SEVERAL TRACTS.

Although a judgment in a tax suit is not against each tract separately for amount due on each, in accordance with Acts Mo. 1877, p. 386, § 6, and is for that reason erroneous, it is not void; and having been rendered by a court having jurisdiction of the person and subject-matter, the title of a purchaser of property bought at execution sale, under such judgment, is not affected by such error.

3. SAME — SALE — DEED — MISRECITAL.

A misrecital in a sheriff's deed of the date of a judgment, in a back-tax suit, under Acts Mo. 1877, is cured by the recital in the deed of the execution, which correctly recites the date of the judgment.

4. SAME — TAX TITLE — REVIEW OF JUDGMENT.

When plaintiff had become puchaser of property at a tax sale, for a valuable consideration, under a valid and subsisting judgment at the time such sale was made, and the deed made in pursuance thereof, and the judgment was afterwards reviewed in a proceeding to which plaintiff was not a party, evidence as to such proceeding is inadmissible.

5. WRITS — PUBLICATION — EFFECT OF JUDGMENT.

The judgment of a court which has jurisdiction of the subject-matter, and acquires jurisdiction of the person of the defendant, by notice published as required by law, is as final and conclusive as if actual notice had been given, except that Rev. St. Mo. 1879, § 3684, etc., provide that such judgment may be reviewed within three years, and, for good cause, set aside.

Appeal from circuit court, Cedar county; C. G. BURTON, Judge.

The plaintiff, G. S. Jones, claims title to the land in controversy under a sale for taxes made under the back-tax law of 1877. The defendant Isaac W. Holland was then owner of the land. A suit was instituted in the circuit court of Cedar county against said Holland and Waldo P. Johnson, to enforce the lien of the state against the lands for the taxes of 1869, 1871, and 1875. Johnson had no interest in the property. Holland was a non-resident of the state, and the defendant Abner Driskell was in possession of the property as the tenant of Holland. He had no actual notice of the proceeding. There was only constructive service by publication. He had, in fact, paid the taxes for the years 1871 and 1875, and held the collector's receipt therefor. The assessor's book for 1869 was not verified as required by law, or in any other manner. Judgment by default was rendered. The judgment was not against each tract separately for its own taxes, but was a general one for the entire taxes and costs found to be due. The lands were sold under this judgment, and D. P. Stratton became the purchaser of same for $10.51. His deed recited a judgment rendered on the 23d of September, 1879, whereas no judgment was rendered on that day. At the March term, 1881, the defendant Holland asked to have the judgment against him in the tax suit set aside, under sections 3684, and following. This was done, and upon trial the court found that the taxes for 1871 and 1875 had been paid, and rendered judgment for the taxes of 1869, which defendant at once paid, together with all costs. Stratton conveyed the land to Mary A. Pritchard, and she conveyed it to John Lassiter, by quitclaim. Lassiter executed a deed of trust to Stratton, trustee, to secure certain promissory notes made by him to his vendors. This deed of trust was foreclosed by sale, made by the sheriff of Cedar county at the request of Stratton, who held the notes secured thereby. The sale was made on the 30th of August, 1883, and the plaintiff became the purchaser. The deed to Lassiter, and the deed of trust, as well as the trustee's deed, were subsequent to the proceedings for review of the judgment in the tax proceedings. Judgment for plaintiff, and defendants appeal.

Thomas Shackelford and Draffen & Williams, for appellants. R. F. Bouller, for respondent.

BRACE, J.

This is an action of ejectnent, in usual form, to recover possession of the N. E. ¼ of the S. E. ¼ of section 29, and the N. W. ¼ of the S. W. ¼ of section 28, in township 35, range 27, in Cedar county, Missouri, instituted against defendant Driskell, who was in possession of the premises as tenant of defendant Isaac W. Holland, who appeared, and, on motion, was made a party defendant to the suit. The plaintiff had judgment in the circuit court, from which defendants appeal. Plaintiff claims title under a sheriff's deed to one D. P. Stratton, who purchased said real estate at execution sale on a judgment rendered by the circuit court of said county against defendant Holland in a back-tax suit, and by mesne conveyances from said Stratton to himself. The defendants contend that plaintiff failed to acquire defendant Holland's title to said real estate by virtue of said conveyances, because — First, the judgment rendered in said tax proceeding is void; second, the sheriff's deed fails to properly recite the judgment; and, third, the judgment, upon review, was set aside before plaintiff purchased and received a conveyance of said real estate. The particular objections urged to the validity of the judgment are that the suit in which it was rendered was for delinquent taxes for the years 1869, 1871, and 1875; and that the assessor's book for 1869 was not verified as required by law; and that the taxes for 1871 and 1875 had been paid before the suit was instituted; and that the suit was for taxes assessed upon two distinct tracts of land; and the judgment was in solido for the gross amount found due on both tracts. These objections to the validity of the judgment may be considered together, for, unless they go to the jurisdiction of the court in which the judgment was rendered, they can avail the defendants nothing.

The authorities cited by counsel for appellant to sustain these objections, and the proposition that the facts stated may be shown in impeachment of, and are sufficient to avail the judgment in question in this case, are cases in which the judgments being considered were rendered by courts of limited jurisdiction, proceeding in a summary manner, under revenue laws in force prior to the act of 1877, i. e., county courts, specially charged with many duties relating to the assessment, levy, and collection of the revenues of the state. This judgment is to be distinguished from those, in that it is the judgment of the circuit court of...