Nolan v. Taylor

• Decision Date: 26 November 1895
• Citation: 32 S.W. 1144,131 Mo. 224
• Parties: Nolan et al. v. Taylor et al., Appellants
• Court: Missouri Supreme Court

32 S.W. 1144

131 Mo. 224

Nolan et al. v. Taylor et al., Appellants

Supreme Court of Missouri, First Division

November 26, 1895

Appeal from Hickory Circuit Conrt. -- Hon. Argus Cox, Judge.

Reversed.

T. G Rechow and Herman Pufahl for appellants.

(1) The tax suit was properly brought against Jeff Thompson, he being the record owner. Vance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. 661; Simonson v Dolan, 114 Mo. 176. (2) The law knows only one Christian name and does not recognize initials when there is a full Christian name, and if it did it could make no difference whether the "M." came before the "Jeff" or after it. 16 Am. and Eng. Encyclopedia of Law, page 114; Franklin v. Talmadge, 5 John. 84; Roosevelt v Gardinier, 2 Cow. 463; Keene v. Meade, 5 Pet. 1; Orme v. Shephard, 5 Mo. 606; Philips v. Evans, 64 Mo. 17; State v. Black, 12 Mo.App. 531. But if the defendant in the execution had been sued by the wrong Christian name he would have to plead that fact in abatement and the court could not disregard the judgment in a collateral proceeding. Moseley v. Reiley, 28 S.W. 895; Elting v. Gould, 96 Mo. 535. (3) The sheriff's deed (being regular in all particulars), with the other deeds in evidence, transferred the title to the land in controversy to defendant Gentry. R. S. 1889, sec. 7684; Allen v. McCabe, 93 Mo. 138; Gibbs v. Southern, 96 Mo. 542; Elting v. Gould, 96 Mo. 535; Jones v. Driskill, 94 Mo. 190; Brown v. Walker, 85 Mo. 262.

J. H. Childers, T. T. Loy and Wm. O. Mead for respondents.

(1) The will of Quinces R. Nolan offered in evidence by the appellees is executed, attested, probated, and recorded in literal compliance with the laws of this state. R. S. 1889, secs. 8870, 8884, 8887; Graham v. O'Fallon, 3 Mo. 507; Graham v. O'Fallon, 4 Mo. 601; Charlton v. Brown, 49 Mo. 353; Mays v. Mays, 114 Mo. 536. (2) The copy of the will of Quinces R. Nolan, deceased, is properly authenticated. The laws of Georgia offered in evidence, establish the court of ordinary, and confer upon it probate, jurisdiction and then create the office of ordinary and ex officio clerk, one office to be filled by one person. Freeman, Judgments, sec. 577; Buttrick v. Allen, 8 Mass. 273; Pelton v. Platner, 13 Ohio 209; Gay v. Lloyd, 1 Greene, 78; Napier v. Gadiere, 1 Spear's Eq. 215; Taylor v. Barron, 30 N.H. 78; Slaughter v. Cunningham, 24 Ala. 260; Adams v. Fisher, 3 Blackf. 241. (3) That the words, "the balance of my property or its proceeds is for my sons, T. C. and John Q. equally," vest the title to this land in plaintiffs is not open to question.

OPINION

Macfarlane, J.

The action is ejectment to recover the northwest quarter of section 8, township 36, range 21, in Hickory county. Petition in the usual form.

By answer, defendants admit the possession of Taylor as the tenant of his codefendant W. C. Gentry. Some equities are claimed by answer which need not be noticed. The answer contained also a general denial.

On the trial plaintiffs introduced in evidence two patents of the United States to Quinces R. Nolan. This is all the information given us of these patents. It is explained in the bill of exceptions that after the trial they were lost and could not, for that reason, be copied into the record. We assume that they purported to convey to the patentee the land in controversy. These patents were never recorded.

Plaintiff then introduced in evidence a copy of an instrument in writing purporting to be the last will of Quinces R. Nolan and certificate of probate by the ordinary of Henry county in the state of Georgia, under which the land in question was claimed to have been devised to plaintiffs. The instrument was dated the twenty-second day of July, 1875. The date of the certificate of probate was June 5, 1876.

A number of objections were made to the sufficiency of the probate of this instrument to authorize its admissibility as evidence. We do not deem it necessary to consider these objections, but will assume that it was the will of the said Nolan, proved, certified, and recorded as required by our laws, and that the land in question was devised to plaintiffs.

Upon this evidence of title plaintiff rested.

To support their right to possession defendants introduced in evidence a copy of the book of original entries, duly certified by the register of lands, on file in the office of the county clerk of said county. This book showed the following entries:

"Southwest northwest section 8, township 36, range 21. Entered by M. Jeff Thompson per military bounty land warrant 45895, November 20, 1857. Act of 1855. Entry number 7306.

"East one half northwest and northwest northwest section 8, township 36, range 21. Entered by M. Jeff Thompson per military bounty land warrant 27821, November 20, 1857. Act of 1855. Entry number 7307."

Defendants then introduced a sheriff's deed to John M. Critcher under a judgment for taxes. The deed recites a judgment in favor of the collector of the county and against Joseph A. Kelley and Jeff M. Thompson, rendered the fourteenth day of November, 1881. Deed was dated May 19, 1882, and was duly acknowledged and recorded. No objection was made to the form or sufficiency of the judgment or deed to convey any title Jeff M. Thompson had to the land. Defendant Gentry claimed under a deed from Critcher.

Upon this evidence the court found for the plaintiffs, and defendants appealed.

The only question is whether the sheriff's deed passed the title to the purchaser.

I. The revenue law, under which this sale was made, was intended to provide for enforcing the payment of taxes by a sale of the land against which they are charged. It does not provide for taking or enforcing a personal judgment against the owner of the land. The law requires the owner to be made a party in order that he may have opportunity to defend against the charge upon the land, or to avoid a sale by payment of the taxes.

At the same time, it was not intended that the owner should escape taxation by withholding the evidence of his title from record. Hence, it is held that the owner, within the intent and meaning of the law, and in the absence of notice to the contrary, shall be taken to be the person who appears, from the records of the county, to be the owner. Payne v. Lott, 90 Mo. 676, 3 S.W. 402, and cases cited.

For the purpose of ascertaining the ownership of land for the purposes of taxation, and for charging it with the taxes, the officers are not confined to what is disclosed by the registry of deeds, but may have resort to the duly certified copy of entries made on the books of any register of any United States land office on file in the county. The person who appears from this copy to have entered the land will be taken as the true owner unless other records of the county show the title to be in some other person.

In the case above cited it was expressly held that a judgment for taxes, under the revenue law, against one who appeared, from a copy of such entries, to be the true owner, and a sale thereunder, was sufficient to carry the title as against one holding an unrecorded deed from such apparent owner.

The entry on the plat book read in evidence shows that M. Jeff Thompson entered the land, by military bounty land warrants on November 20, 1857. The patent to...