Millner v. Shipley

• Citation: 7 S.W. 175,94 Mo. 106
• Parties: MILLNER v. SHIPLEY.
• Decision Date: 20 February 1888
• Court: Missouri Supreme Court

7 S.W. 175

94 Mo. 106

MILLNER v. SHIPLEY.

Supreme Court of Missouri.

February 20, 1888.

TAXATION — TAX DEED — DESCRIPTION OF LAND — VARIANCE.

In ejectment, where plaintiff's title to the land in controversy depends upon a sheriff's deed based upon a judgment rendered at suit of the state for taxes, said

deed and judgment, in describing the land, must conform to the description in the petition and order of publication; otherwise the deed and judgment are void, and open to collateral attack.

Appeal from circuit court, Green county; W. F. GEIGER, Judge.

Ejectment by James R. Millner, plaintiff and appellant, against E. R. Shipley, defendant and respondant.

C. W. Thrasher, for appellant. Massey & McAfee, for respondent.

BLACK, J.

This an action of ejectment for the S. ½ of lot 5 in Kimbrough's Second addition to the city of Springfield. Plaintiff, for a link in his title, depends upon a sheriff's deed, based upon a judgment of the circuit court in a suit of the state at the relation of the collector against M. E. and A. M. Palmer, for the enforcement of the state's lien for taxes for the years 1869 and 1877. There are two additions to the city of Springfield, one known and designated on the plat as "Kimbrough's Addition," and the other known and designated as "Kimbrough's Second Addition." There is a lot 5 in each of these additions. The petition in the tax suit describes the property as the S. ½ of lot 5 in Kimbrough's addition, and the defendants are alleged to be the owners thereof. There was no personal service. The defendants did not appear to the suit. The order of publication, and the notice published pursuant thereto in the newspaper, follows the petition in the description of the property, but the judgment and sheriff's deed describe the property as in the Second addition.

There can be no personal judgment in these tax suits, even where there is personal service. The effect of a valid judgment and sale thereunder is to transfer to the purchaser the title and interest of the defendants to the suit. It is their interest only which is conveyed. The court acquires jurisdiction of the property and of the defendants by the filing of the petition and publication of notice ordered to be made. It follows as a corollary that it is the property, and that only, described in the petition and order of publication, of which the court gets jurisdiction. The court might as well have pronounced judgment against any other lot in Springfield as against...