Rohrer v. Oder

• Decision Date: 09 July 1894
• Citation: 27 S.W. 606,124 Mo. 24
• Parties: Rohrer et al. v. Oder et al., Appellants
• Court: Missouri Supreme Court

27 S.W. 606

124 Mo. 24

Rohrer et al. v. Oder et al., Appellants

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from Bates Circuit Court. -- Hon. James H. Lay, Judge.

Reversed and remanded.

R. F Buller for appellants.

(1) The affidavit of nonresidence was sufficient to authorize the making of the order of publication. R. S. 1879, sec. 3494; Burnett v. McCluey, 92 Mo. 230; Allen v Ray, 96 Mo. 592. (2) Moreover, the judgment recites that the court found that the defendants had been duly notified by publication, etc., and this can not be questioned collaterally, as in this ejectment. Freeman v Thompson, 53 Mo. 183; Hardin v. Lee, 57 Mo. 241; Brawley v. Ranney, 67 Mo. 280; Kane v. McCown, 55 Mo. 183; Rumfelt v. O'Brien, 57 Mo. 569. (3) The same presumptions arise in favor of the judgment of the circuit court in tax cases under the law of 1877, as in other cases. Wellshear v. Kelley, 69 Mo. 343; Jones v. Driskill, 94 Mo. 190. (4) And even if it were competent to overthrow the recitals as to due service, it could not be done by producing a more defective petition without any evidence that it was the only paper of the kind on file, and that there was no other affidavit. On the contrary, the presumption would be that the court acted upon good and sufficient affidavits. Jones v. Manly, 58 Mo. 559. (5) The court had jurisdiction over the object-matter of the action. The proceedings were quasi (at least) in rem. State ex rel. v. Seargeant, 76 Mo. 557; and in such cases they can not be collaterally questioned on the ground that there was some defect in the petition or affidavit upon which the order of publication was predicated. Blackwell on Tax Titles [4 Ed.], 630; Gitchell v. Kreidler, 84 Mo. 473; Freeman v. Thompson, 53 Mo. 183; Hardin v. Lee, 57 Mo. 241; Delaney v. Gault, 30 Pa. St. 63; Pidgeon v. State, 36 Ill. 251. (6) Moreover, the defect, if any, was cured by the statute of jeofails, which says: * * "No judgment shall be impaired for the want of any suggestion for answering process or any insufficient suggestion." In this case the publication is the "process" and the affidavit the "suggestion." R. S. 1879, sec. 352. (7) The order of publication itself is sufficient to satisfy the requirements of section 3499, as to the absent or unknown parties. It gives these parties just the same and as much notice as it would if the petition had been verified by the most formal affidavit in the world, and that is sufficient. Burnett v. McCluey, 92 Mo. 230. (8) Aside from any question as to the validity of the judgment against the unknown heirs, it was unquestionably good at against plaintiff Harriet Rohrer. Lenox v. Clark, 52 Mo. 115. (9) And such being the case, the sheriff's deed conveyed her interest and was a complete bar to her recovery, consequently defendant's third declaration of law ought to have been given. A widow, after the death of her husband, can convey her dower interest by quitclaim deed. Bray v. Conrad, 101 Mo. 331. (10) The dower interest is part of the fee. Doty v. Baker, 11 Hun, 222; Moore v. New York, 4 Sandf. 456. (11) She is a joint owner of the land with the heirs, and, as such, is a necessary party to the tax suit; and, being a necessary party, it necessarily follows that a valid judgment, enforcing the state's lien, can be rendered against her, and her interest, whatever it is, can be sold thereunder. Evans v. Robberson, 92 Mo. 192; Stafford v. Fizer, 82 Mo. 393. (12) The legislature has power to divest even the wife's inchoate right of dower, by a tax sale. Cooley on Taxation [2 Ed.], 444; Black on Tax Titles, secs. 138, 954; Cooley's Const. Lim. [3 Ed.], 360; 2 Scrib. on Dow., p. 8, et seq; Massoon v. Rice, 29 N.W. 168; Jones v. Devore, 8 Ohio St. 430. (13) And it would not help the respondent's case to hold that her interest in the land was a mere intangible right of action, which could not be sold, for in that case she certainly could not recover in ejectment, and a judgment in ejectment in favor of several, one of whom is not entitled to recover, is bad. Primm v. Walker, 38 Mo. 94.

W. C. Hastin for respondent.

Barclay, J. Black, C. J., and Brace and Macfarlane, JJ., concur.

OPINION

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 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 proved their relationship to the deceased, defendants introduced a judgment for delinquent taxes, for the years 1869, 1870, 1871, 1872, 1873, 1874, 1875 and 1876, 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.

"State of Missouri, Plaintiff,

v.

"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, attorneys' fees, and a prayer for judgment, etc., in the usual form, and signed.) "Hoff & 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 23d day of January, 1878. Lewis Gravely,

"Circuit Clerk.

"Filed, January 23, 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 sixth 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 satisfy the same.

"It is further ordered that a copy hereof be published in the 'Stockton Journal,' a weekly newspaper, printed and published in said county of Cedar, for four weeks successively, the last insertion to be at least four weeks before the commencement of the next regular term of this court."

To the foregoing order of publication was appended an affidavit of...