Keaton v. Jorndt

• Decision Date: 09 March 1909
• Citation: 220 Mo. 117,119 S.W. 629
• Parties: KEATON v. JORNDT et al.
• Court: Missouri Supreme Court

119 S.W. 629

220 Mo. 117

KEATON v. JORNDT et al.

Supreme Court of Missouri, Division No. 2.

March 9, 1909.

On Rehearing, May 18, 1909.

1. 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.

On Rehearing.

2. TAXATION (§ 647) — SALE OF LANDS FOR TAXES—ENFORCEMENT OF LIEN.

A judgment, in a tax suit against nonresidents, notified by publication, who are described in the proceedings as "Mollie H. Lemen" and "Birdie E. Stone," instead of "Mary A. Lemen" and "Hattie E. Stone," is void as to them.

3. TAXATION (§ 647) — SALE OF LAND FOR TAXES—ENFORCEMENT OF LIEN.

The judgment is not void although defendant is described in the caption of the petition as an heir of a decedent and in the tax bill as the widow.

4. TAXATION (§ 647) — SALE OF LANDS FOR TAXES—ENFORCEMENT OF LIEN.

The judgment is not void because a defendant is described in the proceedings as "Kate A. Viger," instead of "Katie Antoinette Viger."

5. NAMES (§ 3)—MIDDLE NAMES.

The middle name of a person is not part of his name.

6. TAXATION (§ 647) — SALE OF LANDS FOR TAXES—ENFORCEMENT OF LIEN.

A judgment in a tax suit may be void as to some of the parties defendant and valid as to others.

7. TAXATION (§ 647) — SALE OF LANDS FOR TAXES—ENFORCEMENT OF LIEN.

A judgment, in a tax suit against the true owners, is not void because the land was not assessed to them.

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

Action by C. L. Keaton against Albert A. Jorndt and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions to enter judgment for defendants as to the interests of Carrie E. Thurber and Katie A. Viger.

Wammack & Welborn, for appellants. Keaton & Keaton, for respondent.

BURGESS, J.

Action under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to quiet title to lands in Stoddard county, Mo., and described as the N. E. ¼ and the E. ½ of the S. E. ¼, and the E. ½ of the N. W. ¼, and the E. ½ of the S. W. ¼ of the S. E. ¼, of section 4, township 23, range 12 E. Plaintiff claims title to all the lands described. Defendants F. A. Brannock, James B. Buck, and Walter W. Walker claim title to the northeast quarter. Defendants F. A. Brannock and M. W. Brannock claim title to the east half of the southeast quarter, and defendant Jorndt, to an undivided one-half interest in the east half of the northwest quarter, and the east half of the southwest quarter of the southeast quarter of said section of land. Nathan T. Thurber was the common source of title. He died some time prior to April 21, 1896, leaving a will dated March 14, 1896, which will was probated April 21, 1896, and recorded in Stoddard county on the 3d day of January, 1903. By this will Nathan T. Thurber bequeathed $1,500 to Katie Antoinette Viger and Austin H. Lemen, in trust for three of testator's grandchildren. The will further provided:

"Second. After the payment of the foregoing bequest, I give, devise and bequeath all the remainder and residue of my property, both real and personal of every kind and nature, and wherever situated, to my wife, Carrie E. Thurber, for the term of her natural life, with full power to sell and dispose of the same for her support, maintenance and for any other purpose whatever, as she shall see fit, it being my intention that she shall have the same rights to use, dispose of and convey said property as though the same were bequeathed to her forever.

"Third. After the death of my said wife, Carrie E. Thurber, I give devise and bequeath all the residue and remainder of my property, both real and personal, not disposed of by my said wife during her lifetime to my three daughters, Hattie E. Stone, Katie Antoinette Viger and Mary A. Lemen, in equal shares, and to their heirs and assigns forever.

"I hereby nominate and appoint Carrie E. Thurber, Austin H. Lemen and William B. Stone, executors of this will, and request that they be not required to give bond. I hereby authorize and empower my said executors to sell, convey and dispose of my property in such manner as the best interest of my estate may in their opinion require, hereby authorizing them to execute and deliver any and all conveyances or instruments of any kind necessary and proper in the management of said estate and to deal with said property in all respects as though the same were their own individual property."

Plaintiff obtained his title by a special warranty deed from Samuel F. Campbell, who obtained his title by two deeds. The first of these was a quitclaim deed, dated March 27, 1902, and filed for record January 3, 1903, from Carrie E. Thurber, Permelia L. Stone, and Harry L. Stone, purporting to convey an undivided one-half interest in said section 4 and other lands, in all about 1,120 acres, for a consideration of $200. This deed was witnessed by J. W. Bailey and Hattie E. Stone. The second of these deeds was a quitclaim deed from Carrie E. Thurber, witnessed by J. W. Bailey and Hattie E. Stone, purporting to convey an undivided one-half interest in said section 4, and 480 acres of other land, for a consideration of $500. Defendants claim title under a sheriff's deed to the land in controversy, and by mesne conveyances from the purchasers at the sheriff's sale to the defendants. The sale for taxes was had on the 9th day of March, 1898, and the sheriff's deed, offered in evidence, recites that the judgment was rendered on the 23d day of November, 1897, for taxes in the sum of $21.19 for the years 1894 and 1895, and $30.05 costs, and that the land was stricken off and sold for the sum of $80. The plaintiff objected to the introduction of said sheriff's deed in evidence, on the ground that the tax proceedings upon which it was based were void and subject to collateral attack, and that the court had no jurisdiction of the persons of the owners of the real estate therein sought to be conveyed, nor of the subject-matter—the real estate in controversy. Said tax suit was instituted by publication, and the plaintiff objected that the affidavit upon which the order of publication was based was insufficient, that the defendants in the suit were not correctly named, and that the sheriff's deed showed upon its face that the land was not sold in the smallest legal subdivision. Throughout the tax proceedings the defendants therein are named as Carrie E. Thurber, Mollie H. Lemen, and Austin H. Lemen, her husband, Katie A. Viger and Edward R. Viger, her husband, Birdie E. Stone, and Harry L. Stone, her husband, heirs at law of Nathan T. Thurber, deceased. Attached to the petition in the tax proceeding, and made part thereof, was an affidavit by the collector of the county, which stated, among other things, that the "above-named defendants are nonresidents of the state of Missouri, and the ordinary process of law cannot therefore be served upon them." In the petition in said tax proceeding Carrie E. Thurber is designated as one of the "heirs at law of Nathan T. Thurber, deceased," while in the tax bill, attached to the petition and made part thereof, she is designated as "widow of Nathan T. Thurber, deceased." Defendants pleaded and proved that they, and those under whom they claimed, had paid the taxes levied and assessed against said land since the year 1894, and that plaintiff had not offered in his petition to refund to them such payments in the event he should be successful in this suit. The court found the issues in favor of plaintiff, and that the sheriff's deed under which defendants claim was void, and conveyed no title in and to the premises, for the reason that the court in said tax proceeding did not obtain jurisdiction, and its judgment was void and subject to collateral attack. The court further found that the title to the premises in controversy is in plaintiff, and decreed that the same be determined and vested in him. After unavailing motions for a new trial, and in arrest of judgment, the defendants appealed to this court.

One of the questions for solution in this case is whether, under the amendment of 1889 to section 3494, Rev. St. 1879, and embodied in section 2022, Rev. St. 1889, the simple allegation of nonresidence in the verified petition in the tax suit gave the court jurisdiction of the defendants therein for the purpose of ordering the publication by the clerk against them. The plaintiff contends, and the court found, that actual personal service upon said defendants was necessary to confer such jurisdiction upon the court, while defendants insist that the notice by publication was all-sufficient. The allegation of nonresidence in the tax suit named was as follows: "A. L. Harty, the above-named collector of Stoddard county, Mo., being duly sworn upon his oath states that Carrie E. Thurber, Mollie H. Lemen, Austin H. Lemen, Katie A. Viger, Edward R. Viger, Birdie E. Stone, and Harry L. Stone, heirs at law of Nathan T. Thurber, deceased, the above-named defendants, are nonresidents of the state of Missouri, and that the ordinary process of the law cannot be served upon them." It was contended by plaintiff, and so ruled by the trial court, that, since the tax suit was brought after the amendment of 1889 to the statute providing for service by publication (section 575, Rev. St. 1899 [Ann. St. 1906, p. 601]), this allegation of nonresidence was insufficient to warrant the clerk in issuing the order of publication, but that, in addition to reciting that the "defendants are nonresidents of the state of Missouri, and that the ordinary process of law cannot be served upon them," the allegation should have included the...