Payne v. Lott

• Decision Date: 14 February 1887
• Parties: PAYNE v. LOTT and others.
• Court: Missouri Supreme Court

3 S.W. 402

90 Mo. 676

PAYNE v. LOTT and others.

Supreme Court of Missouri.

February 14, 1887.

1. TAX SALE — APPARENT OWNER — PLAT-BOOK — NOTICE OF CONVEYANCE.

The plat-book of the lands of a county on file in the county clerk's office, duly certified to by the register of the United States land-office, may be resorted to by a collector charged with the duty of suing the owner of land for delinquent taxes thereon, and a sale of land, in a suit to enforce a tax against a party who appears on such book as the owner, in the absence of notice of the fact that he is not the true owner, but has parted with his title by conveying it to another, is valid.

2. SAME — SERVICE BY PUBLICATION — RESIDENT OWNER — CONVEYANCE — NOTICE.

Under the provisions of Rev. St. Mo. §§ 6837, 3494, regulating the service of notices and process in tax suits and suits to enforce liens, an allegation in a petition to foreclose a tax lien that the owner of the land is a non-resident of the state, authorizes the clerk to issue an order of publication, which, when issued, published, and proved, gives the court jurisdiction to proceed to judgment; and a sale made under it will be valid and binding, as against the apparent owner and his grantees, although he was not in fact a non-resident, when the purchaser had no notice that he was a resident, or that he had conveyed his title to another previous to the institution of the suit.

Appeal from circuit court, Putnam county.

Swallow & Mullins, for appellant. S. P. Huston, for respondents.

NORTON, C. J.

It appears from the record in this case that in 1858 one John Rucker entered the W. ½ of S. E. ¼ section 29, township 67, range 19, in Putnam county, as shown by the plat-book of said county, duly certified to by the register of the land-office at Boonville; that in January, 1878, the state, at the relation of the collector of said county, instituted suit against said Rucker in the circuit court of said county to enforce the lien of the state on said land for delinquent taxes assessed against it, running back to 1867, and up to and including 1876; that it is alleged in said petition, which was not sworn to, that said John Rucker was a non-resident of the state; that the clerk of said court in vacation issued an order of publication of notice, which was duly published, and upon motion, at the March term, 1878, of said court, judgment by default was rendered, under which the land was sold in September, 1878, to defendant Melvina I. Lott, (then Carson,) who received a sheriff's deed therefor, and filed it for record on the eleventh September, 1878. It is this deed which this suit is brought to set aside.

On the trial plaintiff put in evidence a deed from said Rucker for the land in question to one John C. Hutchinson, dated April 17, 1858, but not filed for record till the fourth February, 1881; also a deed from said Hutchinson to plaintiff, dated January 12, 1881, and recorded February 4, 1881. Plaintiff also put in evidence the deposition of said Rucker, who testified that he was born in the state, and had always lived in it; that he moved to Andrew county, Missouri, in 1861, where he has ever since resided. Plaintiff also put in evidence the record in the suit of State v. said Rucker, in which, among other things, it is recited as follows: "Now, at this day, to-wit, March 29, 1878, comes the plaintiff, by attorney; but the defendant, although having been notified of the commencement of this action by publication made in this cause, and being three times solemnly called, comes not, nor makes answer in this cause, but makes default," etc. Defendants put in evidence the plat-book of the lands in Putnam county, duly certified by the register of the United States land-office at Boonville, on which the name of John Rucker was written on the plat of the land in...