Mosely v. Reily

• Citation: 126 Mo. 124,28 S.W. 895
• Parties: MOSELY v. REILY.
• Decision Date: 22 December 1894
• Court: United States State Supreme Court of Missouri

28 S.W. 895

126 Mo. 124

MOSELY v. REILY.

Supreme Court of Missouri, Division No. 1.

December 22, 1894.

TAXATION — VALIDITY OF TAX DEED.

Notice by publication to "C. T. Clements" of a proceeding to sell for taxes land recorded in the name of "Charles T. Clements," is sufficient to validate a judgment by default, and a sheriff's deed based thereon, against collateral attack in ejectment by the holder of a quitclaim deed of later date.

Appeal from circuit court, Oregon county; W. N. Evans, Judge.

Ejectment by J. E. Mosely against James P. Reily. Judgment for plaintiff, and defendant appeals. Reversed.

Olden & Orr, for appellant. Orchard & Clark, for respondent.

MACFARLANE, J.

This suit is ejectment to recover possession of the W. ½ N. W. ¼ section 5, township 27, range 30. The petition is in the usual form, with the additional averment that defendant entered into the possession "by putting a tax deed upon record." By the answer defendant "admits that he is in possession of the premises sued for," but denies each other allegation of the petition. On the trial plaintiff put in evidence the following deeds, "which were admitted to be in due form of law." The first three of these deeds, commencing with a patent from the United States, vested the title in John Levering, July 1, 1860. (4) John Levering and wife to Elizabeth Alice Adams, warranty deed, dated April 30, 1873. (5) Alice E. Adams to Charles T. Clements, warranty deed, dated July 30, 1879. This deed contains this recital: "Being the same land acquired by deed April 30, 1873, from John Levering and Elizabeth Levering, his wife." (6) C. T. Clements to J. E. Mosely, quitclaim deed, dated January 2, 1892. (7) Sheriff's deed dated 1886, purporting to convey the interest of C. T. Clements to James Reily, based on judgment in back-tax suit, the service in which was by publication against C. T. Clements. The description of these deeds is given here verbatim, as found in the bill of exceptions. Defendant asked, and the court refused to give, the following declarations of law: "The court declares that, under the pleadings and evidence, the finding should be for the defendant." "The court declares that the sheriff's deed, purporting to convey the interest of C. T. Clements, is sufficient to pass the title of Charles T. Clements." The judgment was for plaintiff, and defendant appealed.

1. From the declaration of law asked by defendant we must assume that he claimed title and the right to the possession under the sheriff's deed purporting to convey to him the land in question. Charles T. Clements, then, is the common source of title under which both parties claim. It would therefore be a useless thing to consider objections made to the deed of Alice E. Adams, and to determine whether, under the recital in the deed, she was sufficiently identified as Elizabeth Alice Adams who held the title.

2. Both parties claim to have acquired the title of Charles T. Clements. The sheriff's deed, under which defendant claims, is prior in date, and must prevail if founded upon a valid judgment. The title stood upon the record in the name of Charles T. Clements. The only service upon Clements was by publication of notice to C. T. Clements. We assume, though the fact does not appear, that Clements made no appearance to the tax suit, and that the judgment was by default. The controlling question in this case, therefore, is whether the published notice to C. T. Clements was sufficient to shield the judgment against the land of Charles T. Clements from collateral attack. The difficulty becomes embarrassing, in view of what we conceive to be contrary rulings of this court, as to the effect a service upon a party, under the initials of his given name, would have upon the judgment when brought in question collaterally. In the case of Martin v. Barron, 37 Mo. 301, a foreign judgment by default against John E. Barron, the service having been upon J. E. Barron, was held good against a collateral attack. In that case it is said by Wagner, J., the other judges all concurring: "Granting that the writ and service were defective, and that the judgment rendered thereon was irregular, can it be impeached and declared void in this collateral manner? Most certainly not. In this collateral action this conformity to law cannot be inquired into. If the judgment is erroneous, it should be reversed or vacated in a direct proceeding instituted for that purpose in the court where it was rendered." On the contrary, in Skelton v. Sackett, 91 Mo. 379, 3 S. W. 874, a judgment by default against Quinces R. Noland, upon a published notice to Q. R. Noland, was held to be absolutely void. While the first of these cases is cited in support of the last named, the two appear to us to be absolutely irreconcilable in principle. The opinion in the latter case quotes approvingly the following from what was said in the former: "The Christian and surname of both plaintiff and defendant should be set forth with accuracy; for, since names are the only marks and indicia which human kind can understand each other by, if the name be omitted or mistaken there is a...