Rohrer v. Oder

• Decision Date: 09 July 1894
• Citation: 27 S.W. 606
• Parties: ROHRER et al. v. ODER et al.
• Court: Missouri Supreme Court

27 S.W. 606

ROHRER et al. v. ODER et al.

Supreme Court of Missouri, Division No. 1.

July 9, 1894.

TAXATION — PUBLICATION — UNKNOWN HEIRS — VERIFICATION — JEOFAILS — LIEN OF TAXES — ASSIGNMENT OF DOWER.

1. In tax proceedings against unknown parties, the facts authorizing notice by publication, under Missouri law, must be verified; otherwise, no jurisdiction is acquired as to such parties. As to them, it is not sufficient to allege merely their nonresidence, in obtaining an order of publication. But such an allegation is sufficient as to named defendants.

2. The statute of jeofails does not cure jurisdictional defects in a record.

3. The state's lien for taxes is paramount to any interest of a widow in her deceased husband's estate, and her interest may be subjected to sale upon failure to pay such taxes.

4. Unassigned dower may be transferred under section 4514, Rev. St. 1889.

(Syllabus by the Judge.)

Appeal from circuit court, Bates county; James H. Lay, Judge.

Action by Mrs. Rohrer and others against one Oder and others. Judgment for plaintiffs, and defendants appeal. Reversed.

R. F. Buller, for appellants. W. C. Hastin, for respondents.

BARCLAY, J.

This is an action of ejectment to recover a tract of land in Cedar county. The pleadings need not be quoted. The issues are very clear. The case was begun where the land lies, but was removed by change of venue to Bates county, where it was tried by the circuit judge without a jury. Both parties trace title to Emmanuel Rohrer, who acquired the land by deed in 1858. He died in the state of Illinois in 1868, leaving the plaintiffs, who are his widow, his sons and daughters, surviving him. The husbands of the married daughters are also joined as plaintiffs. The defendants are in possession, and claim title as purchasers, through mesne conveyances, under a judicial sale of the land for taxes. The only question in the case is as to the validity of the proceedings in the circuit court of Cedar county, leading up to that sale.

After plaintiffs had proven their relationship to the deceased, defendants introduced a judgment for delinquent taxes for the years 1869, '70, '71, '72, '73, '74, '75, and '76, against Harriet Rohrer, the widow, and the unknown heirs of Emmanuel Rohrer, deceased, together with a sheriff's deed to the purchaser on execution under that judgment. The judgment is of date September 23, 1878, and the sheriff's deed of March 20, 1879, all in due form. In rebuttal, the plaintiffs offered and read in evidence papers purporting to be the original files in the tax suit. In them, it is claimed, the defects, fatal to the title of the defendants, claiming under the judgment in that suit, appear. The material parts of the petition in that cause, bearing on the points of controversy, are as follows (omitting all formal recitals of dates and amounts of taxes, there being no dispute as to them), viz.:

"The State of Missouri, at the Relation and to the Use of H. C. Hackleman, Collector of the Revenues of Cedar County. In the Circuit Court of Cedar County, Missouri. The State of Missouri, Plaintiff, vs. Harriet Rohrer and the Unknown Heirs of Emmanuel Rohrer, Deceased, Defendants. The state of Missouri, who sues in this behalf at the relation and to the use of H. C. Hackleman, collector of the revenue within and for the county of Cedar, states that H. C. Hackleman is now, and for a long time has been, the legally qualified collector of the revenue," etc. That under and by virtue of the laws of the state of Missouri, in full force and effect, at the times hereinafter mentioned, the officers and agents of said state and county having legal authority so to do, there were levied and assessed upon the following described real estate, situate in the said county of Cedar, to wit: [Here follows a long recital as to land and the taxes, in the usual form in such cases.] * * * That defendants are the owners of said real estate, and, though often requested to pay, have failed, neglected, and refused to do so. That the ages and names of the said defendants, the unknown heirs of Emmanuel Rohrer, deceased, are unknown to plaintiff. That the interest they have in said lands is by descent from the said Emmanuel Rohrer, deceased. That the defendant Harriet Rohrer is the widow of the said Emmanuel Rohrer. That all of said defendants are nonresidents of the state. [Here follows a long recital as to the back-tax law, the lien of the state, attorney's fees, and a prayer for judgment, etc., in the usual form, and signed] Hoss & Burr, Attorneys for Relator."

To this petition was annexed an affidavit, of which the following is a copy, viz.:

"Walt B. Burr, one of the attorneys for plaintiff, makes oath and says he has cause to believe, and does believe, that the defendants are nonresidents of this state. [Signed] Walt B. Burr.

"Sworn to and subscribed before me this 23rd day of January, 1878. Lewis Gravely, Circuit Clerk.

"Filed January 23rd, 1878."

Annexed to said petition was a tax bill, in usual form, duly certified by the collector of said county. An order of publication was thereupon made by the court at the March term, 1878, as follows:

"[Title of cause.] Now, at this day, comes the plaintiff, by attorneys, and, it appearing to the court that the defendants are nonresidents of this state, it is therefore ordered that publication be made notifying them that an action has been commenced against them in the circuit court of Cedar county, Missouri, the object and purpose of which is to enforce the lien of the state of Missouri for the state, county, road, and school taxes for the years [setting forth the taxes and describing the land]. * * * And that the interest which the said defendants, the unknown heirs of Emmanuel Rohrer, deceased, have in said real estate, is by inheritance from the said Emmanuel Rohrer, deceased. And that unless they be and appear at the next term of this court, to be held at the courthouse in the town of Stockton, in said county of Cedar, on the third Monday in September, 1878, and on or before the 6th day thereof (if the term shall so long continue, and, if not, then before the last day of the term) plead, answer, or demur to the plaintiff's petition, the same will be taken as confessed, and judgment rendered accordingly, and the real estate sold to...