Myers v. De Lisle

• Decision Date: 03 March 1914
• Docket Number: No. 16255.,16255.
• Citation: 168 S.W. 676,259 Mo. 506
• Parties: MYERS et al. v. DE LISLE et al.
• Court: Missouri Supreme Court

168 S.W. 676

259 Mo. 506

MYERS et al. v. DE LISLE et al.

No. 16255.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

Rehearing Denied June 30, 1914.

1. NAMES (§ 16)—IDEM SONANS.

In a tax suit, notice by publication addressed to J. A. Myer is not sufficient to support a judgment against J. A. Myers, the two names not being idem sonans, and it not appearing that the name Myer was a corruption of the German name Meier; and hence a judgment of sale of land for taxes based on such publication is void.

2. TAXATION (§ 805)—TAX TITLE—ACTION BY OWNER—LACHES.

Where an owner of land was not notified of a tax suit, and the sale of the land was absolutely void, his failure to pay taxes for nearly 20 years does not constitute laches, preventing him from recovering the land against purchasers under the tax judgment, who had not acquired a prescriptive title, where the owner had no knowledge that the purchasers were in possession and improving the land.

Appeal from Circuit Court, New Madrid County; Chas. A. Killian, Judge.

Suit to quiet title by J. A. Myers and another against Alphonse De Lisle and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Brewer & Riley, of New Madrid, for appellants. Brown & Gallivan, of New Madrid, and E. F. Sharp, of Marston, for respondents.

BLAIR, C.

This action was commenced April 9, 1909, to ascertain and determine, under section 650, R. S. 1899, the interests of the parties in and to 200 acres of land in New Madrid county.

The answer (1) denies the allegations of the petition: (2) avers defendants own the land and (3) pleads the ten-year statute of limitation and (4) laches. From a judgment for defendants, plaintiffs appeal.

In 1890 Bettie and Charles St. Clair, for a recited consideration of $2,000, conveyed the land in suit to plaintiff J. A. Myers, and on March 8, 1909, J. A. Myers and wife conveyed a one-half interest therein to plaintiff Allison.

Defendants claim under a deed from Seth S. Barnes, whose interest in the land depends upon the validity of a tax judgment and sale and deed thereunder, dated March 27, 1893. The tax deed is conceded to be regular on its face, but the proceedings in the tax suit were offered. They disclose that the only notice of the suit was by publication directed to J. A. Myer instead of J. A. Myers.

In connection with the question as to the sufficiency of this notice, certain evidence was offered which will be noticed in the course of the opinion.

Further questions arose on the evidence on the third and fourth pleas in the answer.

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. loc. cit. 484, 10 S. W. 44), 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, note; Scarry v. Lumber Co., 233 Mo. loc. cit. 689, 136 S. W. 294), 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 the 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 Ill. loc. cit. 640, 32 N. E. 534, 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."

In Smurr v. State, 88 Ind. loc. cit. 506, 507, the names Meyer, Meyers, and Mayer were held idem sonans. Not a case cited in support of this holding met the exact question as to the effect of the omission of a final "s." Further, the name Meyer was used in one count of the indictment and Meyers in another.

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. * * * 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. loc. cit. 66, 67, 120 S. W. 1156, 1157, 133 Am. St. Rep. 506.

In Emeric v. Alvarado, 90 Cal. 465, 27 Pac. 356, 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. loc. cit. 105, 106, 52 S. W. 234, 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.

It is contended, however, that there was evidence that the two names were and are pronounced alike, though spelled differently, and that this evidence justified the trial court's finding.

What the court stated he found was that the names Meyer and Meyers were idem sonans, or, rather, that both were corruptions of the German name Meier. One difficulty in applying in this case, on the evidence, the rule as to names which are corruptions of another lies in the fact that the names found by the court to be corruptions of another are Meyer and Meyers, and the names in question are Myer and Myers, and another difficulty is that there is neither evidence nor finding that these last are corruptions of any other.

The evidence actually is that in the town of New Madrid, where J. A. Myers had never been, some of the people were in the habit of addressing one Charles Meier as Charlie Meyers. Several of those who did so testified they did so because they thought his name was Meyers, and not because they thought...