Miller v. Medley
| Decision Date | 15 July 1911 |
| Citation | 139 S.W. 158,236 Mo. 694 |
| Parties | JOHN N. MILLER, Appellant, v. C. L. MEDLEY, C. L. KEATON et al |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.
Reversed and remanded (with directions).
Henry S. Shaw, Ralph Wammack and N. A. Mozley for appellant.
(1) The court erred in excluding the sheriff's deed as evidence of plaintiff's title. The sheriff's deed is, in form and substance, in compliance with the statute and its recitals are prima-facie evidence of their truth. R. S. 1889 sec. 4954; Lewis v. Curry, 74 Mo. 49; R. S. 1889 sec. 7684; Hall v. Kleipzig, 99 Mo. 89; Cruzen v. Stevens, 123 Mo. 346. Mere irregularities will not ordinarily invalidate a sheriff's deed. 17 Am. and Eng Ency. Law (2 Ed.), 1033; Wilhite v. Wilhite, 53 Mo. 74; Hall v. Kleipzig, 99 Mo. 83; Freeman on Executions (3 Ed.), sec. 43. The description of the land in the deed is sufficient. R. S. 1889, sec. 7707; R. S. 1889, sec. 9328; Lowe v. Ekey, 82 Mo. 291; State ex rel. v. Vaile, 122 Mo. 48. Even though a judgment for taxes due for several years is rendered in solido for the aggregate amount of all taxes due it is not a void judgment, and cannot be attacked collaterally. State ex rel. v. Hunter, 98 Mo. 386; Jones v. Driskell, 94 Mo. 191; Boyd v. Ellis, 107 Mo. 394; Gray v. Bowles, 74 Mo. 419; Stevenson v. Black, 168 Mo. 549; Brown v. Walker, 11 Mo.App. 226; Morrison v. Turnbaugh, 192 Mo. 427; Brown v. Walker, 85 Mo. 262. The failure of the sheriff to sell the land by its smallest legal subdivision will not invalidate the sale. Wellshear v. Kelley, 69 Mo. 343; Brown v. Walker, 85 Mo. 262, 11 Mo.App. 226. The sale of the land for a greater amount than the amount of taxes and costs will not invalidate the sale. R. S. 1889, sec. 7685. The notice of publication was amply sufficient, and for greater length of time than the law required. Hayward v. Russell, 44 Mo. 252; Young v. Downey, 150 Mo. 317; Russell v. Grey, 164 Mo. 69. (2) The defendant's remote grantor is estopped from setting up a claim to this land now, and defendant having had actual notice of the facts constituting such estoppel is equally estopped. Parties cannot accept the value of land, acquiesce in the sale for years, and then recover the land from the vendee. Barnett v. Smart, 158 Mo. 167; Society v. Murray, 145 Mo. 622; Austin v. Loring, 63 Mo. 22; Moore v. Rogers, 99 S.W. 1023; Flesh v. Lindsay, 115 Mo. 1. (3) The court erred in rendering any decree for the defendant, because of an utter absence of evidence to support it. It devolved upon the defendant to prove by competent testimony, not only that plaintiff's title was invalid, but that his title was valid. The allegations of an answer are not proof of them, they must be supported by some kind of testimony. The obligation to prove any fact is upon the party who asserts the affirmative of the issue. Glover v. Henderson, 120 Mo. 367. The will of Nathan T. Thurber devised a fee in the land to his wife, Carrie E. Thurber. Lee v. Moore, 93 S.W. 911; Gardner on Wills, 466; Bernstein v. Bramble, 99 S.W. 682; 2 Redfield on Wills, p. 278; Stowell v. Hastings, 59 Vt. 494; Rena v. Meier, 29 Am. Rep. 495; Roth v. Rauschenbusch, 173 Mo. 252; Underwood v. Cave, 176 Mo. 1; 30 Am. and Eng. Ency. Law, 750; Tebow v. Dougherty, 103 S.W. 985; Cross v. Hoch, 149 Mo. 325; Collier's Will, 40 Mo. 287; Grace v. Perry, 197 Mo. 550; Gannon v. Pauk, 98 S.W. 474; Hardaker's Estate, 204 Pa. St. 181.
John C. Brown and C. L. Keaton for respondent.
(1) This is an action at law tried by the court sitting as a jury, and as no declarations of law were given or refused there is nothing before the court except the sufficiency of the pleading and judgment, and these being regular the judgment should be affirmed. Smith v. Royse, 165 Mo. 658; Jordan v. Davis, 172 Mo. 608; Bank v. Barbee, 198 Mo. 471. (2) In his brief, appellant insists that there is no substantial evidence to support the finding of the trial court, but his motion for new trial does not raise this issue, and he cannot urge it here. Sec. 640, R. S. 1899; Blakely v. Railroad, 79 Mo. 389; Ringo v. Railroad, 91 Mo. 671; Putnam v. Railroad, 22 Mo.App. 589; State v. Morton, 42 Mo.App. 64. (3) The appellant's reply to respondent's answer simply denying "all new matter" in said answer is worthless as a reply, and did not put in issue the title set up by respondent in his answer, and he was entitled to a decree on the pleadings, and the presumption is that the court gave "judgment upon the answer, which is the province of the court." Young v. Schofield, 132 Mo. 661; DeZell v. Fidelity Co., 176 Mo. 279; Betz v. Tel. Co., 121 Mo.App. 478. (4) In this action to try title under R. S. 1899, sec. 650, plaintiff must recover, if at all, upon the strength of his own title. And if defendant showed that plaintiff's tax title from the common source is void, the plaintiff was not entitled to any decree, and it is none of his concern where the title may be, but the record shows it to be in respondent. Wheeler v. Land Co., 193 Mo. 291; Machine Works v. Bowers, 200 Mo. 236; Dixon v. Hunter, 102 S.W. 972. (5) Plaintiff's claim of title is based solely on a sheriff's tax deed, dated March 9, 1898, purporting to convey only the interest of the "heirs at law of Nathan T. Thurber, deceased," and, if invalid, is worthless in an assault on respondent's title under the will of Nathan T. Thurber, deceased. Hartman v. Hornsby, 142 Mo. 375; Hudenton v. Loring, 6 Tex. Civ. App. 122; Rowe v. Cattle Co., 99 Mo.App. 163; Blackwell on Tax Titles, pp. 53 and 68. (6) The tax proceeding against the heirs of Nathan T. Thurber, deceased, whose correct names are set out in the deposition of Carrie E. Thurber and in the will of Nathan T. Thurber, deceased, is absolutely void for the reason that the heirs, the three children, married daughters, were not made parties defendant by their correct names. Mary A. Leman is misnamed Mollie H. Lemen, Katie Antoinette Viger is misnamed Kitie A. Vigar, Hattie E. Stone is misnamed Birdie E. Stone; not a single Christian name is correctly given, and the only surname correctly given is "Stone." Mary A. Leman is misnamed Mollie H. Lemen (men instead of man); Katie Antoinette Viger (Vigur or Vijur, the "ger" as in Gertrude, gurtrude, or as in German, jurman), is misnamed Vigar as in garfish, and the Christian name Kitie used instead of the true name Katie Antoinette. Hattie E. Stone is misnamed Birdie E.; and "the substituted service of process is void and valueless as if a blank had been left where the wrong name is inserted." Campbell v. Johnson, 65 Mo. 439; Powell v. Greenstreet, 95 Mo. 15; Troyer v. Wood, 96 Mo. 478; Evarts v. Lumber Co., 193 Mo. 451; Burge v. Burge, 94 Mo.App. 26. (7) The collector and his attorney knew that Carrie E. Thurber was the widow of Nathan T. Thurber, deceased. They knew that the taxes for 1894 and 1895 accrued, became delinquent and defaulted against Nathan T. Thurber, during his lifetime, and that he left three heirs, as shown on the face of the proceedings. They also knew that under R. S. 1889, secs. 4513, 4525, Carrie E. Thurber's dower and life estate in the land in controversy could not be sold for his debt, the delinquent taxes of Nathan T. Thurber, deceased. So plaintiff's tax deed is absolutely void as to Carrie E. Thurber's dower life estate. R. S. 1889, secs. 4513, 4525; Blevins v. Smith, 104 Mo. 593; Bartlett v. Tinsley, 175 Mo. 322; Myers v. Hansbrough, 100 S.W. 1137; Keeney v. McVoy, 103 S.W. 946. (8) Neither the husband's curtesy nor the widow's dower can be taken under a judgment and execution for the debts of the deceased party. Carrie E. Thurber was sued simply as an heir of Nathan T. Thurber, deceased, as shown by the record, plaintiff's petition in tax suit and plaintiff's sheriff's deed. And her dower interest was not before the court, and as she was not an heir, and had no estate as an heir, the proceedings were absolutely void as to her. "A party is not entitled to a judgment on a finding of facts different from any theory of the case set up in the petition." "It is equally as well settled that a party cannot state one cause of action in the petition and recover upon another." Schneider v. Patton, 175 Mo. 722; Roden v. Helm, 192 Mo. 93. (9) Carrie E. Thurber was not sued as a legatee and devisee under the will, but even if she had been the tax sale would have conveyed no title for these back taxes. "Where an express life estate is created, an added power of disposition does not convert the estate into a fee." It is a mere power which enables her to give or convey the estate to whom she pleases. "Which the law holds to be a mere power." And it is well settled that the widow has no estate in the land "which can be sold under execution." Waller v. Mardus, 29 Mo. 26; Grace v. Perry, 197 Mo. 550.
This is a suit to define and quiet the title to a tract of land comprising about three hundred and six acres, in section 4 township 23, range 12, Stoddard county, Missouri. The action was originally brought by plaintiff, John N. Miller, against one C. L. Medley, as sole defendant, the original petition being filed January 24, 1902, returnable to the March term, 1902, of the circuit court of said county. Afterwards, on March 27, 1902, Samuel F. Campbell became the owner of a one-half interest in the lands, and on September 1, 1902, purchased the other half from Carrie E. Thurber. On February 2, 1904, plaintiff filed his amended petition, making C. L. Medley, Berlin Stafford, Mary V. McShane and Samuel F. Campbell parties defendant, but the case was dismissed as to the three last-named defendants. Defendant Medley answered, but he abandoned ...
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