Simonson v. Dolan

• Decision Date: 14 February 1893
• Citation: 21 S.W. 510,114 Mo. 176
• Parties: SIMONSON v. DOLAN et al.
• Court: Missouri Supreme Court

21 S.W. 510

114 Mo. 176

SIMONSON v. DOLAN et al.

Supreme Court of Missouri, Division No. 2.

February 14, 1893.

TAXATION — JUDGMENT — NAMES — IDEM SONANS.

Under Rev. St. 1889, § 7682, which expressly provides that tax suits shall be brought against the owner of the land, a judgment against "Siemson," when the owner's name is "Simonson," is insufficient to support a tax title, since the two names are not idem sonans.

Appeal from circuit court, Knox county; Benjamin E. Turner, Judge.

Ejectment by Andrew Simonson against Charles Dolan and others. Plaintiff obtained judgment. Defendants appeal. Affirmed.

The other facts fully appear in the following statement by BURGESS, J.:

Suit in ejectment to recover 160 acres of land in Knox county, Mo. Plaintiff showed a regular chain of title from the government to himself. Defendants admit possession; claim under a judgment and execution sale for taxes, wherein one William P. McGonagle, collector of the revenue of Knox county, was plaintiff, and Andrew Simonson was defendant. Defendant Dolan also sets up in his answer, by way of estoppel, a verbal agreement made with the plaintiff, by which he was to buy the land in at the tax sale, was to have the use of it for 99 years, and that he had made improvements thereon to the value of $216. Plaintiff filed reply, denying new matter set up in the answer. The plaintiff is a very old man, about the age of 82 years, residing in the state of Iowa; and there is no evidence that he either knew that the land had in fact been sold, who bought it, or that any improvements had been made thereon. The cause was tried by the court without the aid of a jury. No instructions were asked by plaintiff. Defendants asked three instructions, all of which were refused. They are as follows: "(1) The court declares the law of the case to be that the fact that one or two of the insertions of the publication of the notice of the commencement of the suit were made prior to the taking effect of the practice act or Code of Procedure, making the last insertion of the four-weeks notice fifteen days before the return term, as embodied in Rev. St. 1889, notice to the defendant does not make the order of publication, for that reason, null and void. (2) That the judgment and sheriff's deed are not void, as a matter of law, on their face, or in the light of the service of process by the order of publication, and they cannot be attacked by the plaintiff on account of any of the irregularities relied on in evidence in this collateral proceeding, and the defendants are entitled to recover. (3) That the names Andrew Simonson and Andrew Siemson are in law idem sonans, and the judgment is not void in law," — which the court refused to give; to which ruling defendants duly excepted. The court found for plaintiff for the possession of the premises, $63 damages, and also found that there was due ...