Myers v. McRay
| Decision Date | 28 February 1893 |
| Citation | 21 S.W. 730,114 Mo. 377 |
| Parties | Myers, Appellant, v. McRay et al |
| Court | Missouri Supreme Court |
Appeal from Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.
Reversed and remanded.
Scott & Hoss for appellant.
No jurisdiction was ever acquired in the tax suit in question. The statute, Revised Statutes, 1889, section 2027, had not been complied with, hence there was no basis for an order of publication, the petition in said case being unverified and containing none of the allegations required by said section. State ex rel. v. Staley, 76 Mo. 160; Quigley v Bank, 80 Mo. 297; Charles v. Morrow, 99 Mo 646, and cases there cited. Since "the entire record in the tax suit" is in evidence here, no presumption can be indulged to the effect tat the plaintiff in said suit did allege in his petition under oath anything. If an act appears in the roll as having been done in a specified manner, no presumption arises that at some future time the act was done in a more efficient manner; to indulge such a presumption would be to contradict the record which imports absolute verity. When therefore the record shows that certain steps were taken to procure jurisdiction and the law does not consider those steps sufficient, the judgment will be regarded as void for want of jurisdiction. Freeman on Judgments, sec. 125, cited and approved by this court in Cloud v. Inhabitants, 86 Mo. 368. The presumption is that the clerk does his duty in preserving the records. And the parol evidence introduced by defendants is not sufficient to overthrow this presumption. Besides the parol evidence offered by plaintiff upon this point and excluded by the court should have been admitted. While parol evidence is not admissible for the purpose of contradicting a record, it is admissible for the purpose of showing what the record really is (Blodgett v. Schaffer, 94 Mo. 652), and the judge's minutes are admissible for the same purpose. The evidence does not support an affirmative finding on the case presumed in the instruction number 4, given on behalf of defendants; besides the law declared in said instruction is not supported by the authorities. The law will not presume that the petition was verified by the plaintiff; and proceeding by affidavit is not permissible in this class of cases. Besides there is no pretence that the petition or affidavit or order of publication, assumed in said instruction, contained any allegation or recital as to the interest of the defendants in the subject-matter of the suit except that they "had some interest in said lands, acquired by inheritance from Joseph F. Pond." This of itself was fatal to jurisdiction. Constructive service is not favored by the law and all presumptions are indulged against it. State ex rel. v. Field, 107 Mo. 445; Wade on Notice, sec. 1030. The court committed no error in refusing instructions 1 and 2, as prayed by defendants. Schultz v. Lindell's heirs, 40 Mo. 355; Thompson v. Gaillard, 3 Richardson's Law (S. C.), 418.
Stone, Hoss & King for respondents.
The judgment in the tax suit cannot be attacked in this suit. It cannot be impeached, varied or contradicted by parol testimony. Adams v. Cowles, 95 Mo. 501, and authorities cited.
This is an action of ejectment for the possession of the south half of lot 8 in block 1 in the city of Nevada, Vernon county. The petition is in the usual form. The answer is a general denial, except that it admits that defendants are in possession.
Plaintiff showed a regular chain of title from the United States Government in one Joseph F. Pond; his, Pond's death, and conveyances by deed from his heirs to plaintiff.
Defendant introduced evidence tending to show that the lot was unoccupied in the year 1877, when S. S. Bigelow took actual possession of it; and that he, in 1879, traded it to one W. B. McGinnes, and that McGinnes and his grantees have been in the actual possession ever since. Defendants also claim title under a sheriff's sale for taxes, made on the seventh day of May, 1879, under judgment rendered against Joseph F. Pond's heirs in the circuit court of Vernon county on the fourteenth day of November, 1878, in favor of F. P. Anderson, collector; at which sale W. R. Crockett became the purchaser and afterwards conveyed to W. H. Robinson, under whom defendants occupy the premises as his, Robinson's, tenants.
I. The case turns altogether on the judgment for delinquent or back taxes against the unknown heirs of Joseph F. Pond, by and through which judgment defendants' lessor Robinson claims title. If the judgment is void -- and it so appears from the record -- plaintiff is entitled to the possession of the lot sued for; otherwise he is not, and the judgment of the court below must be affirmed.
The suit for back taxes was instituted on the fifth day of March, 1878, and by section 6 of the act of the legislature (Laws 1877, page 386) entitled "Revenues -- Delinquent Taxes," it is provided that the general laws of the state as to practice and proceeding in civil cases shall apply so far as practicable and not contrary to the act. By section 2027, Revised Statutes of 1889, it is provided that "if any plaintiff shall allege in his petition, under oath, that there are or that he verily believes there are persons interested in the subject-matter of the petition whose names he cannot insert therein because they are unknown to him, and shall describe the interest of such persons and how derived, so far as his knowledge extends, the court or the judge, or clerk thereof in vacation, shall make an order as in case of non-residents, reciting moreover all allegations in relation to the interest of such unknown parties."
The petition upon which the judgment was rendered is entitled: "The State of Missouri, to the Use of E. P. Anderson, Collector, etc., v. Joseph F. Pond, Estate or Heirs;" but it nowhere alleges the death of Pond, nor does it allege that the names of the heirs cannot be set out because unknown, what their interest is, or how or in what manner derived, nor was the petition sworn to.
Upon the filing of the petition in the office of the clerk of the circuit court, an order of publication was issued by him which is somewhat...
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