Parker v. Burton

• Decision Date: 18 February 1903
• Parties: PARKER v. BURTON.
• Court: Missouri Supreme Court

72 S.W. 663

172 Mo. 85

PARKER v. BURTON.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

DEEDS — DESCRIPTION — SUFFICIENCY — FAILURE TO DESIGNATE COUNTY — TAX SUIT — SERVICE BY PUBLICATION — NONRESIDENCE.

1. In ejectment, a deed of dedication of the land in controversy was not inadmissible because not showing the county in which the land was located, but only the section, town, and range; since the court will take judicial notice of county boundaries, and determine from the section, town, and range in what county the land lies.

2. Rev. St. 1899, §§ 9303, 575, provide that, if the plaintiff or other person for him shall depose that part of the defendants are nonresidents or have absconded or absented themselves from their usual abode, service may be had by publication. An affidavit in a tax suit stated that defendant had "absconded from his usual place of abode in this state." Held, that an order authorizing service by publication, on the ground that defendant was a "nonresident," was not a compliance with the statute, and gave the court no jurisdiction.

Appeal from circuit court, Monroe county; David H. Eby, Judge.

Action by George W. Parker against Sarah Burton. From a judgment for plaintiff, defendant appeals. Reversed.

R. B. Bristow, for appellant. W. T. Ragland, for respondent.

BRACE, P. J.

This is an action in ejectment to recover possession of the south two-thirds of lot 2, in block 10, in the town of Holliday, in Monroe county. The petition is in common form. The answer, a general denial. At the close of the plaintiff's evidence the defendant demurred thereto. The demurrer was overruled, and the issues submitted to the jury without instructions. The verdict was for the defendant, and from the judgment thereon in his favor the plaintiff appeals.

Plaintiff claims title under a sheriff's deed dated November 4, 1897, duly executed, acknowledged, and recorded, made in pursuance of a sale, under execution on a judgment of the circuit court of Monroe county, in favor of the state of Missouri, at the relation and to the use of George W. Waller, collector of the revenue of said county, against Samuel Burton et al., in an action for delinquent taxes. On the trial, after showing record title from the government in Thompson Holliday to the N. W. ¼ of the S. W. ¼ of section 3, township 54, range 11, plaintiff offered in evidence the record of a deed of dedication and plat of said town duly executed by the said Holliday, to the admission of which defendant objected, on the ground that "it did not identify the location of the town, except as being in the N. W. ¼ of the S. W. ¼ of Sec. 3, town 54, range 11; the county not being designated, and no definite point fixed to begin the measurements." The court over ruled the objection, and this is assigned as error.

1. Courts take judicial notice of county boundaries, of government surveys, and of the subdivisions of land thereunder, and, where the section, township, and range are given, know whether the lands included in the survey are within the boundaries of a given county. 17 Am. & Eng. Encyl. of Law (2d Ed.) pp. 912, 913. Hence it appearing from the plat that the town of Holliday, being in the N. W. ¼ of the S. W. ¼ of Sec. 3, town 54, range 11, was in Monroe county; and it also appearing from the plat that the town is located on both sides of a railroad running diagonally through the town, the center of the right of way of which, where it crosses the east line of the town, is marked by a star (*), which is stated to be 8.44 chains from the N. E. corner of said N. W. ¼ of S. W. ¼ of Sec. 3, town 54, range 11; and the lines drawn with reference thereto showing that the east and north lines of the town are coincident with the east and north lines of the 40 — the location of each block and lot can be easily ascertained from these lines by the measurements given on the plat, and the court committed no error in overruling this objection.

2. By deed dated August 1, 1878, duly executed, acknowledged, and recorded, Samuel Burton acquired the legal title of said Holliday to lot 2 in block 10 of said town, which deed plaintiff gave in evidence, and then offered in evidence said sheriff's deed, together with the execution, judgment, record entries, pleadings, and files in the tax suit in which such judgment was rendered; all of which were admitted in evidence, over the objections of the defendant. It appeared therefrom that the tax suit was instituted by petition in the usual form for delinquent taxes for the years 1890, 1891, 1892, and 1893, amounting in the aggregate to the sum of $8.22 against the premises, of which the said Samuel Burton was alleged to be the owner of the record title; that the summons issued thereon returnable to the April term, 1896, of said court, was duly returned served as to the other defendants, but as to him the return was, "Samuel Burton not being found in my county"; that judgment by default was taken against the other defendants, and the cause continued; that afterwards, at the April term, 1897, of said court, the following affidavit was filed: "State of Missouri, County of Monroe — ss.: George W. Waller, of lawful age, being duly sworn, on his oath states that he was on the 31st day of March, 1896, and now is, the collector of the revenue within and for Monroe county, Missouri, and as such he did institute a suit against Samuel Burton, Sarah Burton. Geo. W. Seibert, and Louis Bassett, for taxes due and owing by them on the south two-thirds of lot two (2) in block ten (10) of the town of Holliday, Monroe county, Missouri, on the 31st day of March, 1896; that service (personal) has been had on Sarah Burton, Geo. W. Seibert, and Louis Bassett, and that the defendant Samuel Burton has absconded and absented himself from his usual place of abode in this state; that the ordinary process of law cannot be served upon him. Further this deponent saith not. G....