Shemwell v. Betts

• Decision Date: 02 March 1915
• Citation: 174 S.W. 390,264 Mo. 268
• Parties: BAXTER SHEMWELL, Appellant, v. W. A. BETTS et. al
• Court: Missouri Supreme Court

174 S.W. 390

264 Mo. 268

BAXTER SHEMWELL, Appellant, v. W. A. BETTS et. al

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from Oregon Circuit Court. -- Hon. W. N. Evans, Judge.

STATEMENT.

Appellant (plaintiff below) filed an amended petition on the 17th of October, 1911, in the circuit court of Oregon county Missouri, to which certain persons to whom one J. D. Brooks made a conveyance of a quarter section of land in said county were made defendants, together with certain incumbrancers of said land. The gravamen of plaintiff's petition is that he, a non-resident of the State of Missouri, was the owner of said quarter section of land to which he had acquired title under two tax deeds; that after the recording of said deeds to him, the said J. D. Brooks, who had a deed to said premises, caused the same to be recorded with knowledge of plaintiff's rights under the tax deeds.

Plaintiff further states that the said Brooks brought an action to quiet the title to said premises to which plaintiff and other persons were made defendants in July, 1904; that plaintiff was served by publication, but made default, having no actual knowledge of the pendency of said suit; that said suit ripened into a judgment decreeing the title to said premises to be in said J. D. Brooks.

Plaintiff's petition further alleges, to-wit:

"That this plaintiff long before said suit to quiet title was instituted and disposed of and since that time up to the year 1909 has continuously paid all taxes on said premises. Plaintiff further states that in order to obtain said judgment purporting to quiet the title to said premises said J. D. Brooks then represented and claimed that he was the true legal and equitable owner thereof and had the true fee simple title thereto, when in truth and in fact he was not the owner thereof and did not have the true title to said premises, but such fact was withheld from the court and the court was thereby imposed upon and misled and deceived and such conduct operated as fraud in the very procurement of said judgment, which would not and should not have been rendered in good conscience and equity.

"Plaintiff further states that to permit said judgment to stand and thereby vest said J. D. Brooks with the title to said premises through its force and effect and divest this plaintiff of his right, title and interest in said premises should in actual operation and effect amount to taking plaintiff's property without due process of law.

"That said judgment purporting to quiet the title to said premises in plaintiff in said suit is null and void and passed no title to said J. D. Brooks to said premises and he had no title to said premises at the time he obtained said judgment."

Plaintiff proferred to pay to the defendants the reasonable amount of any improvements which they had made on the premises purchased by them from the said J. D. Brooks, and concluded with the prayer to set aside the judgment of the circuit court in favor of said J. D. Brooks and all transactions thereunder and subsequent conveyances by him of the land therein described. To this petition the defendants demurred for the reason that it did not state facts sufficient to constitute a cause of action.

After argument, the demurrer was sustained, plaintiff given leave to amend, which he declined to do, but stood upon his petition.

Wherefore it was dismissed, and an appeal duly taken to this court.

Affirmed.

E. P. Dorris for appellant.

The proposition is, does plaintiff's petition state a cause of action? Defendants filed a demurrer to plaintiff's amended petition which admits that its allegations are true. Breimeyer v. Starr Bottling Co., 136 Mo.App. 84. The petition states a cause of action to set aside a judgment purporting to quiet the title to the premises involved and described in said petition and which said judgment was obtained in a manner which cannot be upheld in equity. Tapana v. Shaffrey, 97 Mo.App. 337; Golden v. Whiteside, 109 Mo.App. 523; Johnson v. Chilton, 111 Mo.App. 244; Davidson v. Real Estate Co., 226 Mo. 1; Howard v. Scott, 225 Mo. 685; Collier v. Easton, 2 Mo. 145; Miles v. Jones, 28 Mo. 87; Payne v. Oshea, 84 Mo. 129; Bresnehen v. Price, 57 Mo. 422; Lee v. Hannon, 84 Mo.App. 157; Smith v. Taylor, 78 Mo.App. 630; Wonderly v. Lafayette Co., 150 Mo. 635; Smoot v. Judd, 161 Mo. 673; State ex rel. v. Englemann, 86 Mo. 562. Plaintiff alleges that he is the owner of said premises and is holding under two valid tax deeds duly recorded more than three years before the said judgment, and that plaintiff in said suit not having commenced his action within three years from the time of recording the tax deeds is barred. R. S. 1909, sec. 11506a. Plaintiff further alleges that to permit said judgment to stand and thereby obtain the title to said premises and deprive plaintiff of his property, would be taking property without due process of law. Constitution, art. 2, sec. 30.

BOND, J. WOODSON, J. concurring in result, but dissenting as to some of the language used.

OPINION OPINION.

BOND, J. (After stating the facts as above.)

-- The allegations of the petition in this case disclose that the circuit court of Oregon county obtained jurisdiction in the former action brought against plaintiff to quiet the title to the land by publication prescribed by statute in suits against non-residents. [R. S. 1909, sec. 1707.] In cases falling within the purview of that statute, and where it is strictly complied with, a court of general jurisdiction in the classes of cases mentioned in the statute obtains as much jurisdiction over the persons of non-residents upon a publication regularly made as if they were personally served with process. This has been too long the settled rule in this State to be further questioned. Under the statements contained in the petition in this case, the suit in which ...