Lovell v. Homes

• Decision Date: 02 March 1920
• Docket Number: No. 20574.,20574.
• Parties: LOVELL et al. v. HOMES et al.
• Court: Missouri Supreme Court

219 S.W. 939

LOVELL et al. v. HOMES et al.

No. 20574.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Suit to quiet title by Sarah A. Lovell and others against Frederic B. Homes and others. From judgment for plaintiffs, defendant Lucius Kingsbury appeals. Reversed, with directions to set aside judgment and to enter judgment for defendant Kingsbury.

Arthur T. Brewster and Sam M. Brewster, both of Ironton, for appellant.

John H. Keith, of Ironton, for respondents.

SMALL, C.

I. This is a suit to quiet title. Petition in the usual general form.

Defendant Lucius Kingsbury filed answer, admitting that he asserted title to a portion of the land mentioned in the petition, and averring that he was the owner thereof in fee simple, and denying all other allegations of the petition.

The plaintiffs claimed title under certain proceedings under the Back Tax Act (chapter 117, art. 8, Rev. St. 1909). The petition in the tax case was against Lucius "Kingbury" and others, as defendants. The petition alleged "that the above-named defendants are nonresidents of the state of Missouri, and the ordinary process of law cannot be served upon them." There was no personal service, but there was service by publication. In the order of publication and all subsequent proceedings, including the judgment, execution, and sheriff's deed, the defendant named in the petition as "Kingbury" was stated to be "Kingsbury." The defendant and appellant, Lucius Kingsbury, introduced in evidence a patent to the part of the property claimed by him, issued by the United States, dated September 1, 1859, and recorded in the General Land Office, in volume 58, at page 476, in which his name was properly spelled "Kingsbury." The sole question in the case was whether the tax proceedings were valid or void because the petition was against Lucius "Kingbury" and the name of the owner of the property was Lucius "Kingsbury." The lower court ruled the proceedings were valid, and divested appellant of his title, and rendered judgment accordingly for the plaintiffs. Defendant Kingsbury appealed to this court.

II. We rule that the tax proceedings were void as against the appealing defendant in this case, Lucius Kingsbury, because his name, Lucius "Kingsbury," is not idem sonans with Lucius "Kingbury," the name of the defendant in the petition in the tax case. There was no personal service of summons in the tax case, but the service was by publication. In such cases the statute relating to the procuring of jurisdiction over the defendant must be strictly construed and strictly followed. In the petition in the tax case, shown in evidence, the name of the defendant was Lucius "Kingbury," and the jurisdictional allegation in the petition necessary to authorize a publication of summons against defendants was that "the above-named defendants" are nonresidents, etc.; that is, that defendant Lucius "Kingbury" was a nonresident. There was no allegation in the petition that Lucius "Kingsbury" was a' nonresident, unless "Kingbury" and "Kingsbury" are idem sonans. If they are not idem sonans, then the publication against Lucius Kingsbury and all subsequent proceedings thereunder were void for lack of an allegation in the petition that the defendant Lucius Kingsbury was a nonresident. So that the whole question in this case resolves itself into one of idem sonans in proceedings under the Back Tax Act to foreclose the lien of the state for back taxes. Our decisions have spoken decisively on this subject, and have ruled that if to the attentive ear there would be no difficulty in distinguishing between "Kingbury" and "Kingsbury," they cannot be held to be idem sonans. Myers v. 113 Lisle, 259 Mo. 511, 168 S. W. 676, 52 L. R. A (N. S.) 937; Graton v. Land & Lumber Co., 180 Mo. loc. cit. 338, 339, 87 S. W. 37; Williams v. Grudier, 264 Mo. loc. cit. 228, 174 S. W. 387; Geer v. Mo. L. & M. Co., 134 Mo. 85, 34 S. W. 1099, 56 Am. St. Rep. 489; Scarry v. Lumber Co., 233 Mo. loc. cit. 690, 136 S. W. 294. The subject is thoroughly covered by this court in an opinion by Blair, C., in Myers v. De Lisle, supra. On page 509 of 259 Mo., on page 677 of 168 S. W. (52 L. R. A. [N. S.] 937), in the Myers Case, the court said:

"1. In a tax suit was the notice by publication directed to J. A. Myer sufficient to support a judgment against J. A. Myers? It is not disputed that to bind J. A. Myers by the judgment it was necessary to make him a party nor that notice to him was essential to that end (Chamberlain v. Blodgett, 96 Mo. l. c. 484 ), but it is said, and the trial court found, that the names `J. A. Myers' and `J. A. Myer' are idem sonans, and therefore the publication constituted notice and the judgment and deed are valid.

"The clear weight of authority is that in a case like this the omission of a final `s' from a name is a fatal variance (29 Cyc. p. 276; 100 Am. St. Rep. 324; Scarry v. Lumber Co., 233 Mo. l. c. 689 ), though there are some decisions to the contrary.

"In this state the general rule was applied in State v. Mohr, 55 Mo. App. 325, and a contrary view was taken by this court, the omission affecting defendant's given name, in State v. Havely, 21 Mo. 498. All other cases we have discovered out of harmony with the general rule are criminal cases, except Stevens v. Stebbins, 4 Ill. [3 Scam.] 25, in which defendant was personally served and the question arose on an objection to the admission in evidence of a note sued on.

"In Gonzalia v. Bartelsman, 143 l. c. 640 , the same court which decided Stevens v. Stebbins, supra, held that in an affidavit of service of notice of a tax sale `the doctrine of idem sonans cannot be made to apply to two such distinct names as "Meyer" and "Meyers."' * * * There are good reasons for refusing to countenance laxity in proceedings to sell land for taxes on notice by publication, and they have heretofore been well stated: `No man may judicially lose his property without his day in court. A day in court proceeds on notice. So due process of law and jurisdiction depend on notice. By Revised Statutes, § 9303 (1899), it is ordained that tax suits shall be brought "against the owner of the property." By this is meant the record owner unless the fact is known, or the purchaser have notice that the record owner is not the true owner." When summons is actually served on the right individual by the wrong name, the error becomes immaterial, because he has notice of the suit and may appear if he choose and plead a misnomer. But absent actual notice when the law for convenience substitutes a constructive notice, the name of the individual defendant obviously becomes one of the essentials and of the very life of the notice. * * * If the law tolerated slovenliness or pranks in this regard, then slovenliness and pranks might ripen into a custom and open the door to great mischief. Constructive service at best is harsh. It is service not in substance and fact, but of a sort to which the name of service is attached from necessity. That method of service, being highly technical, must be strictly pursued.' Ohlmann v. Sawmill Co., 222 Mo. L c. 68, 67 [120 S. W. 1155, 28 L. R. A. (N. S.) 432, 133 Am. St. Rep. 506].

"In Emeric v. Alvarado, 90 Cal. 465 , it was even held that for reasons somewhat like those just quoted the doctrine of idem sonans does not apply to tax proceedings at all, but that `different letters will make different names, though the sound be the same.' "Other cases are Chamberlain v. Blodgett supra, Troyer v. Wood, 96 Mo. 478 [10 S. W. 42, 9 Am. St. Rep. 367], and Turner v. Gregory 151 Mo. l. c. 105,106 , cited in the Ohlmann Case, supra.

"To the attentive ear there is no difficulty in distinguishing between `Myer' and `Myers,' and under the applicable general rule they cannot be held idem sonans."

In Geer v. Lumber Co., 134 Mo. 85, 34 S. W. 1099, 56 Am. St. Rep. 489, the tax proceedings were by publication against Michael "Lane," whereas the name of the owner of the land was Michael "Leane," and the court held the proceedings void as'"Lane" and "Leane" were not idem sonans, because they "do not have such a similarity of sound when pronounced that a difference would not be observed by an attentive ear."

In the case before us the attentive ear would have no difficulty in distinguishing a difference in sound between "Kingbury" and "Kingsbury." The difference is as fully noticeable as between "Myer" and "Myers" and "Lane" and "Leane," which this court held not to be idem sonans in the two cases above mentioned.

The authorities cited by learned counsel for respondent do not militate against the general rule promulgated by the foregoing authorities. In Maier v. Brock, 222 Mo. 74, 120 S....