Schmidt v. Neimeyer

• Decision Date: 22 March 1890
• Citation: 13 S.W. 405,100 Mo. 207
• Parties: SCHMIDT et al. v. NEIMEYER et al.
• Court: Missouri Supreme Court

13 S.W. 405

100 Mo. 207

SCHMIDT et al. v. NEIMEYER et al.

Supreme Court of Missouri.

March 22, 1890.

TAX-SALES — BONA FIDE PURCHASERS.

Defendants in a tax-suit received no personal service of the summons, and put in no appearance. An order of publication was made on the false return of the sheriff that defendants could not be found. The judgment which was entered for a sum in excess of that recited in the order of publication was vacated on motion at a subsequent term. Held, that the title of purchaser under the execution sale, without notice of the irregularities, was good. SHERWOOD, J., dissenting.

Error to St. Louis circuit court; AMOS M. THAYER, Judge.

This is an action of ejectment. It is conceded that plaintiffs' title would prevail but for the interference of a sheriff's deed made under execution in a back-tax suit, which forms the basis of defendants' claim. Plaintiffs question the validity of the proceedings in the tax-suit. They made a successful motion in the trial court to set aside the judgment therein. That motion was filed at a term long subsequent to the execution sale. Defendants' grantor, who purchased at the sale, was a stranger to the record, and, until then, to the title. Plaintiffs were defendants in the tax-suit, and, as such, a summons issued against them when it began. The sheriff's return thereon was that they could not be found. Upon that an order of publication was made under section 3496, (Rev. St. 1879,) the court being satisfied that the ordinary process of law could not be served upon them. No appearance was made on the part of defendants, and in due course a judgment was entered against the property in question for the amount of the delinquent taxes. Under the judgment the execution sale took place on which defendants' title rests. The circuit court declared the law to be that plaintiffs could not recover. After the necessary steps for a review; the plaintiffs appealed.

Kehr & Tittman, for plaintiffs in error, E. P. Johnson, for defendants in error.

BARCLAY, J., (after stating the facts as above.)

1. The questions involved in this appeal have been determined by former decisions of the court. It has been held that an order of publication, regularly made, cannot be attacked collaterally, as against an innocent purchaser thereunder, by showing that it was predicated on an untrue suggestion to the court. Payne v. Lott, 90 Mo. 676, 3 S. W. Rep. 402. In this case the basis of the order was the sheriff's return, that...