Perkinson v. Meredith
| Decision Date | 12 November 1900 |
| Parties | PERKINSON, Appellant, v. MEREDITH et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
T. A Post for appellant.
(1) The proceeding is really against the land, and under execution enforcing judgment therein the levy is only against the land and from considerations of public policy the contractor is protected, if he has no other information and his order of publication embraces the names of the record owners. Payne v. Lott, 90 Mo. pp. 676, 680, 681; Vance v. Corrigan, 78 Mo. 94; State ex rel. Hunt v. Sack 79 Mo. 661; Watt v. Donnell, 80 Mo. 195; Cowell v. Gray, 85 Mo. 169; Allen v. Ray, 96 Mo. 542; Evans v. Robberson, 92 Mo. 192; Smith v. Blevins, 104 Mo. 583; Seibert v. Allen, 61 Mo. 488; St. Louis Charter, art. 6, sec. 25; R. S. 1899, p. 2513. (2) Defendants in the present action certainly could not attack plaintiff's title on the ground that notice of suit on the special tax bill was given to Olive M. Hilton and not to her heirs, unless it should be made to appear that the failure of notice worked them harm. And such result is negatived by the evidence. Lanier v. McIntosh, 117 Mo. 520; McDonald v. Schneider, 27 Mo. 405; Woods v. Hilderbrand, 46 Mo. 284; Norcum v. Doench, 17 Mo. 98; Glasgow v. Baker, 14 Mo.App. 201; Newell Eq., p. 642, sec. 14; Adams Eq., 33.
A. C. Stewart and Isaac H. Orr for respondents.
(1) A suit on special tax bill for street improvement is not strictly an action in rem. A personal defendant is necessary to the validity of the proceedings, although no personal judgment can be rendered. Only the interests of such persons as have been legally brought in, can be affected by the judgment. Jaicks v. Sullivan, 128 Mo. 177; Seibert v. Allen, 61 Mo. 482; Vance v. Corrigan, 78 Mo. 94; Corrigan v. Bell, 73 Mo. 53. The same doctrine applies in suits for general taxes, and in suits to enforce mechanics' liens. Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472; Graves v. Ewart, 99 Mo. 13; Blevins v. Smith, 104 Mo. 583; Russell v. Grant, 122 Mo. 161. "Even in proceedings in rem, some form of notice is as essential and indispensable as in other cases." Russell v. Grant, supra; Hassall v. Wilcox, 130 U.S. 493; Windsor v. McVeigh, 93 U.S. 274. (2) At the date of the institution of the suit on special tax bill, Olive M. Hilton was dead. A judgment rendered in a suit begun and prosecuted against a deceased person is absolutely void. Jaicks v. Sullivan, supra; Graves v. Ewart, supra; Crosley v. Hutton, 98 Mo. 196; Williams v. Hudson, 93 Mo. 524; Bollinger v. Chouteau, 20 Mo. 89. (3) A sale by sheriff under a void judgment passes no title. Holland v. Johnson, 80 Mo. 34; Railroad v. Reynolds, 89 Mo. 146; Janney v. Spedden, 38 Mo. 395; Milner v. Shipley, 94 Mo. 106. (4) Neither of the defendants in the suit on special tax bill had any title at time suit was begun. It is the well settled law of this State that the purchaser at a tax sale acquires only the title of the defendants in the tax suit. Allen v. Ray, 96 Mo. 542; Powell v. Greenstreet, 95 Mo. 13; Draper v. Bryson, 26 Mo. 108; Fox v. Hall, 74 Mo. 315.
This is an action in ejectment instituted in the circuit court of St. Louis to secure the possession of certain real estate described in the petition.
A trial was had by the court, a jury having been waived, which resulted in a finding and judgment for the defendant, and plaintiff appealed.
The petition is in the usual form in such cases; the answer a general denial. On July 7, 1883, William Collins, who is the common source of title, conveyed the lot in question to J. Oliver, who is described in the deed as being "of the city of Chicago and State of Illinois." Afterwards on July 11, 1890, John Oliver described in the deed as being "an unmarried man of St. Louis in the State of Missouri," gave a deed of trust on said lot to H. C. Sanford, trustee for Isaac Drexel of New York; and on the same day John Oliver and S. H. McMillan conveyed said lot, together with other property by warranty deed, to Olive M. Hilton. This deed however, was not recorded until the 7th day of May, 1894. On July 23, 1894, plaintiff commenced suit in the circuit court of the city of St. Louis against J. Oliver on a special tax bill issued pursuant to an ordinance of the city of St. Louis passed for the purpose of improving Lee avenue, in front of the lot in question. In November following, an amended petition was filed, making Olive M. Hilton a party defendant; thereupon publication was made as to both defendants, on the theory, doubtless, that they were non-residents of the State. On June 17, 1895, judgment by default was rendered against J. Oliver and Olive M. Hilton. This judgment recites that,
Afterwards, on the 22d day of July, 1895, a sheriff's sale was had under special execution issued on said judgment, and plaintiff became the purchaser and received a sheriff's deed therefor. On October 9, 1895, the trustee in said deed of trust conveyed said lot by trustee's deed in the usual form to Elizabeth Werrmeyer, in pursuance of a foreclosure sale under the deed of trust. Afterwards, in December, 1896, Elizabeth Werrmeyer conveyed the lot in question to Julia Meredith, the defendant herein.
The evidence shows that J. Oliver, described in the deed from William Collins as being "of the city of Chicago and State of Illinois," who executed the deed of trust on the lot in question to H. C. Sanford, trustee of Isaac Drexel, and the warranty deed above mentioned to Olive M. Hilton, was one and the same person. It further appears that Olive M. Hilton was dead at the time the tax suit was begun, and that at the time of her death she was a resident of the State of Colorado. The record also shows that at the time the tax suit was commenced and at the date of plaintiff's purchase at the sheriff's sale thereunder, he had no notice or knowledge whatever that J. Oliver and John Oliver was one and the same person, or that Olive M. Hilton was dead.
The plaintiff claims title by purchase at execution sale under the sheriff's deed in pursuance of a sale on the special execution issued on the judgment rendered in the suit on the special tax bill against J. Oliver and Olive M. Hilton.
It is contended by counsel for defendants that no title was acquired by plaintiff's purchase at the sheriff's sale under the judgment in the tax suit, because at the time the suit was begun Olive M. Hilton was dead and the proper parties defendant were not before the court.
On the other hand, the contention of plaintiff, as stated by his counsel is that, "Even if the evidence was sufficient to warrant the court in finding that the alleged conveyance to Olive M. Hilton was sufficient to pass title to her to the property in question, and sufficient to warrant the court in finding that she was dead at the time suit was brought against J. Oliver and Olive M. Hilton, nevertheless inasmuch as the evidence also showed that the title to the property in controversy then stood of record in the name of Olive M. Hilton, and inasmuch as no proof was adduced showing notice to plaintiff of her death at the time when said suit was brought, the court erred in holding that said notice to Olive M. Hilton was not sufficient to subject any such right, title and interest as may have passed by said deed to said Olive M. Hilton, to the lien of the tax bill declared upon in said suit, and to the judgment and execution thereon to plaintiff's purchase thereunder."
The point for decision, therefore, is whether the tax suit instituted against Olive M. Hilton, after her death, authorized a judgment and sale thereunder, so as to vest title to the lot in controversy in plaintiff, without bringing in the heirs of Mrs. Hilton. Olive M. Hilton having by successive conveyances, all of which were duly recorded, prior to the commencement of the tax suit, acquired the interest of J. Oliver in the lot in question, it is not perceived how the order of publication against said Oliver could affect the title thus acquired by her, especially where, as here, it was shown that J. Oliver and John Oliver was one and the same person. Neither can it be said that the order of publication bringing in Olive M. Hilton was effectual to enforce the lien of the special tax bill and pass the title to plaintiff.
But it is urged by appellant that inasmuch as the tax suit was not for the purpose of securing a personal judgment against Olive M. Hilton, being against the property and not against the owner, "it is not necessary for the purpose of the special tax bill suit under the St. Louis charter, that there should be any actual party in court." This position in our opinion is untenable. In Vance v. Corrigan, 78 Mo. 94, an action between the holder of a tax deed and the holder of a prior unrecorded deed to the same lot, both parties claimed title from the same grantor. In speaking of the nature of the action in that case, the court s...
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