Skillman v. Clardy

• Citation: 165 S.W. 1050,256 Mo. 297
• Parties: MARY CORNELIA SKILLMAN et al., Appellants, v. MARTIN L. CLARDY
• Decision Date: 02 April 1914
• Court: Missouri Supreme Court

165 S.W. 1050

256 Mo. 297

MARY CORNELIA SKILLMAN et al., Appellants, v. MARTIN L. CLARDY

Supreme Court of Missouri, First Division

April 2, 1914

Appeal from Butler Circuit Court. -- Hon. Jesse C. Sheppard, Judge.

Affirmed.

S. C Rogers and C. M. Skillman for appellants.

(1) The court erred in holding that the petition in the suit for back taxes, and which led up to the making of the sheriff's deed to Jones and Weber, stated facts sufficient to constitute a cause of action, or in any essential respect complied with the requirements of the law. (a) The action must be prosecuted against the owner of the property. Sec 7682, R. S. 1889. (b) The petition does not state who was the owner of the land; nor does it state that the defendants or either of them were the record owners, and if not record owners how they were interested, as is necessary. Fleming v. Tatum, 232 Mo. 678; Sec. 2027, R. S. 1889; Wall v. Holladay-Klotz, 175 Mo. 411. (c) There is a variance between the allegations of the amount of taxes due as alleged in the petition from that as shown by the tax bill filed therewith. (2) The court erred in holding that the back tax bill attached to the petition in evidence was in conformity to the law and showed a proper assessment and levy against the land in controversy. (a) The back tax bill should set out the smallest legal sub-divisions. Secs. 7553-7555, 7683-7703 R. S. 1889; State ex rel. v. Burrough, 174 Mo. 706; Keene v. Barnes, 29 Mo. 385; State ex rel. v. Sargeant, 76 Mo. 559. (b) The back tax bill of respondents is dated January 6, 1889. (c) The back tax bill does not show the same figures, total or result, as alleged in the petition. Sec. 7682, R. S. 1889; Fleming v. Tatum, 232 Mo. 678; Wall v. Holladay-Klotz, 175 Mo. 411. (3) The court erred in holding that the court had jurisdiction of the parties in the proceeding wherein the purported judgment in evidence was rendered and upon which the tax deed offered in evidence is based. (a) In actions wherein substituted service is had, the statute must be strictly complied with or no jurisdiction is acquired and the judgment thereunder is void. Chilton v. Tam, 235 Mo. 498; Miller v. Keaton, 236 Mo. 710; Woodruff v. Lumber Co., 242 Mo. 387; Shuck v. Moore, 232 Mo. 649; Kunzi v. Hickman, 243 Mo. 103. (b) In the order of publication in this cause the names are spelled Hamelton instead of Hamilton, and Abigal instead of Abigail. Whelen v. Weaver, 93 Mo. 430; Troyer v. Wood, 96 Mo. 478; Chamberlain v. Blodgett, 96 Mo. 482; Simonson v. Dolan, 114 Mo. 176; Miller v. Keaton, 236 Mo. 711. (c) The order of publication requires that the publication be published in the "Bloomfield Vindicator," a newspaper published weekly in Stoddard county, Missouri," and the proof of publication shows that it was published in "The Vindicator, a weekly newspaper published in the county of Stoddard," Missouri. (d) The order of publication orders the defendants to appear on or before the sixth day of the term. This was in contravention to Sec. 2042, R. S. 1889. Sec. 2022, R. S. 1889; Cummings v. Brown, 181 Mo. 716. (4) The court erred in holding that the judgment offered in evidence in this case is a valid judgment and upon which a valid sale thereunder and title thereupon could be based. (a) The judgment does not find defendants or any of them were owner or owners of the property as was necessary. Secs. 7682-7683, 2206, R. S. 1889; Rothenberger v. Garrett, 224 Mo. 201; Hughey v. Eyssell, 167 Mo.App. 563; Connelly v. Railroad, 169 Mo.App. 272. (b) The order of publication states that the object and general nature of the action is to enforce the lien of the State of Missouri, etc., which is the basis of the judgment in this case, while upon the face of the judgment it appears to be a personal one, which is improper. State ex rel. v. Snyder, 139 Mo. 549; Nolan v. Taylor, 131 Mo. 224; Stewart v. Allison, 150 Mo. 346; O'Day v. McDaniel, 181 Mo. 535; Allen v. McCabe, 93 Mo. 143. (c) The judgment finds "that defendants had been legally notified of the commencement of this action, by publication in the Bloomfield Vindicator, a newspaper, published weekly in Stoddard County, Missouri, the last insertion being at least fifteen days before the first day of this term of this court. Proof of publication filed." Whereas the proof filed shows it was published in the "Vindicator." (d) The judgment is for a larger amount than asked for in the petition. (5) The court erred in permitting respondent to introduce in evidence certified copy of the sheriff's deed from J. R. Barham, sheriff of Stoddard county, to Ligon Jones and Emil M. Weber, and in holding that the same was a valid and legal deed, the same not corresponding with the judgment nor complying with the law in any essential respect in such cases made and provided, and that it was sufficient as a basis for respondent's title, all over the objection and exception of appellants. (a) It is not in conformity to the judgment, or the law, in that only so much of the real estate should be sold as may be necessary to satisfy the judgment and costs. Sec. 7683, R. S. 1889; Guffey v. O'Reiley, 88 Mo. 424. (b) The tax deed does not show the amount of taxes for each year. Guffey v. O'Reiley, 88 Mo. 424. (3) The tax deed recites it was made by Jonathan R. Barham, sheriff, throughout, whereas it is signed by J. R. Barham, and so acknowledged. (d) It does not state how the property was advertised as the law requires; it only states the conclusion of the sheriff, which is insufficient; a copy of the advertisement should be attached to the deed. Secs. 310-311, R. S. 1889; Sec. 4941, R. S. 1889; Large v. Fisher, 49 Mo. 307; Meriwether v. Overly, 228 Mo. 235; Spurlock v. Dougherty, 81 Mo. 171; Gregg v. Jasberg, 113 Mo. 38; Moore v. Harris, 91 Mo. 621; Pearce v. Tittsworth, 87 Mo. 640; Hopkins v. Scott, 86 Mo. 148. (e) The sheriff's deed does not conform to the judgment, in that the judgment is against but one defendant and does not state which, and the tax deed states the judgment was against all of the defendants named, and the tax deed upon its face purports to convey the interest of all the defendants and also states that said property was ordered sold, whereas the judgment does not order any of the property sold, and does not show the amount of taxes for each year, nor does it show the amount of taxes for each tract for each year. (f) The sheriff's deed does not conform to the judgment because it does not properly describe the property mentioned in the petition or judgment.

N. A. Mozley for respondent.

(1) Where the court had jurisdiction of the subject-matter and of the person, as the court unquestionably had in the tax proceeding in evidence in this case, that some of its subsequent actions may have been irregular will not affect the validity of the tax deed, nor entitle those claiming under the defendant in that proceeding to make a collateral attack upon it. Gibbs v. Southern, 116 Mo. 204; Sanzenbacher v. Santhuff, 220 Mo. 274; Jones v Driscol, 94 Mo. 190; Evarts v. L. & M. Co., 193 Mo. 444; Morrison v. Turnbaugh, 192 444; Warren v. Manwaring, 173 Mo. 21. (2) The court had jurisdiction of the subject-matter of the proceeding to enforce the State's lien for taxes against the land in controversy by virtue of the Constitution and laws of the State. Warren v. Manwaring, 173 Mo. 21; Gibbs v. Southern, 116 Mo. 204. And that jurisdiction was put in motion by the filing in court of the petition in the back tax proceeding wherein the State of Missouri, at the relation and to the use of Joseph Howell, collector of the revenue in and for the county of Stoddard, in the State of Missouri, was plaintiff and Samuel B. Hamilton, et al., were defendants. This petition states every essential fact necessary to good pleading. Sec. 7682, R. S. 1889; State ex rel. v. Cummings, 151 Mo. 49; Gibbs v. Southern, 116 Mo. 204. Said petition contained an affidavit of plaintiff's attorney as to the nonresidence of the defendants which was sufficient to authorize service on them by publication. Sec. 2022, R. S. 1889; Allen v. Ray, 96 Mo. 542. Upon the filing of said petition and affidavit of nonresidence, to-wit, on the 10th day of June, 1890, an order of publication, directed to Samuel B. Hamilton et al. was issued by the clerk of the circuit court of said county and duly published in the Vindicator, a weekly newspaper published in said county, for four weeks successively, the last insertion, as shown by the verified proof of publication, being on the 15th day of August, 1890, more than fifteen days before the 8th day of September, 1890, the day on which the regular September term of the circuit court of said county for the year began, as required by law. R. S. 1889, secs. 311, 2028. And the fact that said order of publication directed and the decree found that it was published in the "Bloomfield Vindicator" and the proof of publication shows it was published in the "Vindicator" in no wise affects the validity of the judgment or the legality of the sheriff's deed made in pursuance of the sale under said judgment. It was not necessary under the statute that the order of publication should designate, nor the decree find, the name of the paper in which the order was published. That it was published in a weekly newspaper of Stoddard county for the requisite time required by law is sufficient. Such publication brings the defendant into court and not the name of the paper. Sec. 2028, R. S. 1889; McDermott v. Gray, 198 Mo. 266; Coffin v. Elgin, 243 Mo. 455; Blickensderfer v. Hanna, 231 Mo. 276; State ex rel. v. Blair, 245 Mo. 680. Nor is there anything of substance in appellants' assignment that the name of the defendants is spelled "Hamelton" instead of "Hamilton." It is Hamilton either way it is spelled. The...