Schnitger v. Rankin

• Decision Date: 12 December 1905
• Parties: SCHNITGER et al. v. RANKIN et al.
• Court: Missouri Supreme Court

91 S.W. 122

192 Mo. 35

SCHNITGER et al. v. RANKIN et al.

Supreme Court of Missouri, Division No. 2.

December 12, 1905.

1. TAXATION — SALE OF LAND FOR TAXES — PARTIES.

Under Rev. St. 1899, § 9303, substantially the same as Rev. St. 1879, § 6837, providing that all actions commenced under the provisions of the chapter, which relates to the collection of taxes, shall be prosecuted in the name of the state and "against the owner of the property," it is sufficient to bring a suit by the state to enforce the collection of taxes against the owner as shown by the records of land titles.

2. SAME—MARRIED WOMEN.

Under Rev. St. 1899, § 9303, substantially the same as Rev. St. 1879, § 6837, providing that all actions commenced under the provisions of the chapter, which relates to the collection of taxes, shall be prosecuted in the name of the state and "against the owner of the property," where the record showed the title to be in a woman under a name borne by her during her first marriage and prior to the death of her husband and her subsequent remarriage, the presumption was that she knew the record name by which she held the land, that she had not paid taxes thereon, and that the state would enforce its claim for such taxes, and under a summons, in an action by the state to collect delinquent taxes wherein substituted service was had, directed to her by her former name, the court acquired jurisdiction of the proceeding.

3. HUSBAND AND WIFE — ACTIONS — JOINDER OF HUSBAND—VALIDITY.

A judgment against a married woman, in an action by the state to enforce the collection of delinquent taxes, is not void for nonjoinder of the husband, where the record in the proceeding does not on its face disclose that the judgment was against a married woman.

Appeal from Circuit Court, Jefferson County; F. R. Dearing, Judge.

Action by G. Schnitger and others against Thomas Rankin and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

This cause is pending in this court upon an appeal by plaintiffs from a judgment in an ejectment suit of the Jefferson county circuit court in favor of defendants. The petition upon which this action is based is the ordinary and usual one in cases of this character. The land involved in this proceeding is situated in Jefferson county, Mo., and described as follows: The S. E. ¼ of section 4, township 43, range 4 E., containing 160 acres of land. The answer of the defendants is a general denial and also pleading the statute of limitations in bar of the action. The issues being thus joined, the cause was submitted to the court, without the aid of a jury, upon the following agreed statement of facts: The fee-simple title to the land in controversy was, by deed dated in 1860, duly vested in Louisia Bornemann, who was then in truth and fact the wife of Alexander Bornemann, which fact did appear by said deed, which was duly recorded in Deed Records of Jefferson county, Book R, page 144, in 1860. That Alexander Bornemann died in 1863. That they had one son, Gustave Bornemann, whose wife is Ida Bornemann, now living as her sole heir. That the suit as to Gustave Schnitger is hereby dismissed; he being a party plaintiff. That upon the death, in 1863, of Alexander Bornemann, Louisia Bornemann, the owner of the fee-simple title, became a widow. That in 1864 she married Gustave Schnitger, and became Louisia Schnitger, and remained such until her death in 1896, being then survived by her husband, G. Schnitger. That in 1878 a suit for delinquent taxes on the land in controversey was filed in the circuit court of Jefferson county, Mo., to enforce the tax lien upon said land; the suit being against Louisia Bornemann and ______ Bornemann, her husband. That in said suit no personal service was had on Louisia Schnitger in any name, but that in said suit an order of publication was had in due form to Louisia Bornemann and ______ Bornemann, her husband, which was published as required by law. That there was no service of any kind on Louisia Schnitger as such. That judgment was rendered and the land sold in accordance with law upon the publication aforesaid, and that Samuel Byrns received a deed to same from the sheriff under said judgment which was rendered in due time and the land sold by deed to defendants by said Byrns about the year 1887. That said Byrns and his assigns were not aware of the death of Alexander Bornemann in 1863 and of Louisia Bornemann being from 1864 to her death in 1896 Louisia Schnitger. That said Byrns and assigns have paid taxes on the land since their purchase in 1879. That defendants and those under whom they claim have had actual possession of the land in controversy since November, 1880, claiming title thereto and paying the taxes and doing other acts of ownership.

Upon this agreed statement of facts plaintiffs asked the court to declare the law to be as follows: "The court declares the law to be that the court acquired no jurisdiction over Louisia Schnitger in this case, for the following reasons: (1) That the publication of a summons to Louisia Bornemann and ______ Bornemann, her husband, being a constructive service, would give the court no jurisdiction over Louisia Schnitger, a married woman, and at the time the wife of G. Schnitger. (2) That at the time the suit was filed and judgment rendered, being before July 1, 1883, a married woman could not be sued without her husband being joined. Therefore the court acquired no jurisdiction of Louisia Schnitger, her husband, G. Schnitger, not being sued, especially where, as in this instance, the service is constructive. (3) That ______ Bornemann, husband of Louisia Bornemann, being dead, and she being a married woman, the wife of G. Schnitger, the court acquired no jurisdiction by constructive service of summons upon a dead husband and her by her wrong name." "The court declares the law to be that Louisia Schnitger, wife of G. Schnitger, in whom the fee-simple title was vested, was not entitled to the possession of the land, that right being in her husband, G. Schnitger, she being under coverture and he by virtue of his right to the possession as her husband was a necessary party and liable for the taxes on the land at the time of the institution of the suit involved in this case for delinquent taxes." "The court declares the law to be that limitation does not run in favor of the defendants so as to bar plaintiffs from recovering." All of which instructions were by the court refused, and the cause being submitted to the court, a finding was made and judgment rendered in favor of the defendants. After an unsuccessful motion for a new trial, plaintiffs prosecute their appeal from the judgment rendered to this court, and the cause is now here for our consideration.

Warren D. Isenberg, for appellants. Byrns & Bean, for respondents.

FOX, J. (after stating the facts).

Upon this record appellants assign numerous errors in the action of the trial court as a basis for the reversal of this judgment. There are but two legal propositions involved in this controversy: (1) Did the order of publication confer jurisdiction upon the court in this proceeding? (2) Louisia Schnitger, formerly Louisia Bornemann, being a married woman at the time of the institution of the tax suit, and her husband, Gustave Schnitger, not being joined with her in the suit, did these facts, under the law in force at that time, render the judgment void and subject to attack in a collateral...