Rutledge & Taylor Coal Co. v. Dent
| Decision Date | 05 June 1925 |
| Docket Number | No. 24720.,24720. |
| Citation | 274 S.W. 30 |
| Court | Missouri Supreme Court |
| Parties | RUTLEDGE & TAYLOR COAL CO. v. DENT et al. |
Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.
Action by the Rutledge & Taylor Coal Company against J. F. Dent and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.
Dalton & Knop, of Atlantic, Iowa, for appellants.
Cope & Cope, of Salem, for respondent.
Statement.
On June 18, 1921, the Rutledge & Taylor Coal Company, as plaintiff, filed in the circuit court of Dent county, Mo., a petition against the above-named defendants, J. Frank Dent and George A. Dent, which alleges, in substance, that at all times mentioned in petition plaintiff was a corporation, doing business under the laws of Missouri, and as such capable of suing, and liable to be sued; that on December 24, 1909, plaintiff purchased from one W. P. Robertson and wife all of the west half of northwest quarter of section 13, township 34 north, range 4 west in Dent county aforesaid, and filed their deed for record in said county on March 17, 1910, and which was recorded in Book 50 at page 198; that plaintiff has never parted with its title aforesaid, and is still the legal owner of said real estate.
It is alleged that on February 12, 1918, the tax collector of Dent county instituted suit against "Rutledge & Taylor Coal Company" for taxes due on certain Dent county land for the year 1916. Service was had by publication. The petition in said tax suit alleged "that the defendant Rutledge & Taylor Coal Company is a nonresident of the state of Missouri, and cannot be served in this state in the manner prescribed in chapter 21 of the R. S. 1909." The order of publication based on this allegation, was published in the same manner, directed to "Rutledge & Taylor Coal Company," defendant. Judgment was rendered in the tax suit aforesaid, on April 8, 1918, on the constructive service aforesaid, and the land in controversy was sold under said judgment, on special execution to the defendants herein, J. Frank Dent and George A. Dent, and a sheriff's deed made to them therefor on August 14, 1918.
The defendants answered, and admitted that they purchased the land in question under said tax judgment and sale, in good faith believing at the time they were obtaining a good title thereto. They further allege that they filed a suit against this respondent, had proper service, and recovered a judgment against respondent quieting the title to said land against this plaintiff; that said judgment is res adjudicata, and plaintiff is estopped and barred from prosecuting this action, etc.
Plaintiff filed a reply in the form of a general denial.
Plaintiff's evidence: The plaintiff at the trial of this cause offered in evidence a warranty deed to it from W. P. Robertson and R. May Robertson, his wife, dated December 24, 1909, for the expressed consideration of $800, conveying the land in controversy to plaintiff. The latter also offered in evidence the tax petition, and all the records, process, pleadings, etc., in said tax suit, including the tax judgment, special execution, report of sale, and tax deed conveying said real estate to these appellants. The above includes all the testimony offered by respondent in this action.
Defendants' evidence: Defendants' evidence tended to show that appellants paid a valuable consideration for the land in question, in good faith, believing they had acquired a good title to same. The defendants then read in evidence, without objection, the petition filed by them in the circuit court aforesaid, against this respondent et al., at the November term, 1919, to quiet title to the land in controversy. They also offered in evidence, without objection, the order of publication, made and published in above action against this plaintiff and others to quiet and determine title to above land. Appellants next offered in evidence without objection, the decree of the circuit court, in above action to quiet title, which, among miler ruing; declared appellants to be the owners of said real estate, and further declared that whatever interest this respondent had in said land "is hereby vested in plaintiffs, in fee simple," etc.
The decree of the court in the above action to quiet title was filed for record in Dent county aforesaid on' January 21, 1920, and recorded in said county. The present action was commenced on June 18, 1921.
The foregoing covers all the evidence that was submitted by both parties to the action. The trial court found the issues herein in favor of plaintiff, and rendered its decree accordingly. Appellants in due time filed motions for a new trial and in arrest of judgment, both of which were overruled, and the cause duly appealed by them to this court.
Opinion.I. Plaintiff, who was originally the record owner of the real estate in controversy, brought this action to set aside and cancel a tax sale of said land, and the deed made to these defendants, under said proceedings. The appellants answered with a general denial, and asserted that they bought said land at the tax sale, in good faith, believing that they had acquired a good title thereto, etc. They further pleaded a judgment in their favor, rendered in the circuit court of Dent county against this plaintiff, where the title to said real estate was declared to be in these defendants, and plaintiff herein divested of any interest or claim in said land. The plaintiff filed a general denial by way of reply to the new matter in said answer.
Before passing to a consideration of plaintiff's case in its attack on the tax proceedings, it will be necessary to determine on the record before us whether the judgment aforesaid, in favor of appellants in the action to quiet title, is res adjudicata, and is a bar to plaintiff's action. In passing upon this question, it will not be necessary to determine the validity or invalidity of the tax proceedings and deed thereunder made to these appellants. The latter, to sustain their plea of res adjudicata, offered in evidence, without objection, the petition filed by them in the Dent circuit court at the November term, 1919, thereof, against the plaintiff herein and others, in which it is alleged that they claim some interest in or title to said land. Said petition charges that:
"The Rutledge & Taylor Coal Company is a corporation of another state, kingdom, or country, and cannot be served in the manner prescribed by statute."
It alleged that these appellants were the owners in fee simple of the real estate involved in this action, which was described therein. The petition ended with a prayer, in which the circuit court aforesaid was asked to ascertain and determine the estate, titles, and interest of the parties to this action in and to the real estate aforesaid. The court was further asked by its decree to adjudge, determine, settle, quiet, and define the respective rights, titles, etc., of plaintiffs and defendants to said real property. The court was asked, if it was found that these appellants were the sole owners of said land, that a decree be entered of record forever barring and precluding the defendants, and each of them in said action, etc., from hereafter setting up any title or claim to said property and for general relief, etc.
The above petition was sworn to by counsel for said plaintiffs on September 30, 1919, and on the same day, an order of publication in proper form, based upon said petition, was properly published and offered in evidence by defendants herein without objection. Appellants then offered in evidence, without objection, the decree rendered by the court on December 5, 1919, in the above action to quiet title to the lands aforesaid. The decree recites that an attorney was appointed to defendant nonresidents, and he filed an answer in their behalf. The court found the issues in said action in favor of these appellants, and against this respondent. It concludes its decree with the following:
"Wherefore it is considered, adjudged, and decreed by the court that the title to the said above-described real estate is vested in plaintiffs in fee simple and that they are the absolute owners of all of said real estate, and the defendants, * * * have no right, claim, interest, estate, or title whatever in or to said real estate or any part thereof, or no lien thereon, and that said defendants and each of them are precluded from asserting or making any claim whatever to said real estate or any part thereof."
The above decree was duly recorded in the recorder's office of Dent county, Mo., on January 21, 1920. The present action was commenced June 18, 1921. The decree in the action to quiet title was rendered December 5, 1919, and recorded as above indicated, showing that respondent herein had ample time, before the expiration of the 2 years allowed by law, to have appeared to said action and moved the court to set the decree aside, if any valid grounds existed therefor. We are then confronted with a valid judgment, in behalf of these appellants, on constructive service, in which a regular decree is entered in behalf of appellants herein against this respondent, decreeing said appellants...
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