State ex rel. Carter v. Clymer

• Decision Date: 31 October 1883
• Citation: 81 Mo. 122
• Parties: THE STATE ex rel. CARTER, Collector, Appellant, v. CLYMER.
• Court: Missouri Supreme Court

81 Mo. 122

THE STATE ex rel. CARTER, Collector, Appellant,

v.CLYMER.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Henry Circuit Court.--HON. J. B. GANTT, Judge.

REVERSED.

B. G. Boone for appellant.

The appellee, Kleaver Clymer, being a stranger to the proceedings in the suit, was not entitled to appear and file his motion to quash the execution. The law authorizing a party to file a motion to quash an execution in open court, does not apply to a stranger to the record. Fiske v. Lamoroux, 48 Mo. 523. The court erred in admitting the testimony of Hallam and Collins. Their testimony was irrelevant, as not tending to prove ownership in the land in the appellee, the deed being the best and proper evidence of title. The court erred in admitting the record of the deed offered by appellee, as it shows on its face that it conveyed the land from Collins to D. K. Clymer, the defendant in the judgment and execution, and not to the appellee, Kleaver Clymer. The appellee having received and accepted the deed from Collins to D. K. Clymer and placed it on record, is estopped from denying that his name is D. K. Clymer, or that D. K. Clymer was the real owner of the land. It appearing of record that D. K. Clymer was the owner of the land, the suit by the collector was properly brought against D. K. Clymer, and the judgment was in all respects properly rendered against the land.

M. A. Fyke for respondent.

The land belonged, at the time the suit was instituted, and still belongs, to Dr. Kleaver Clymer. The deed, the record of which was offered in evidence, and to which action of the court in permitting the same, appellant objects, was from Collins to Dr. K. Clymer, and not to D. K. Clymer; so that notice to D. K. Clymer was no notice to Dr. K. Clymer. The evidence shows that Kleaver Clymer, the owner of the land, is a physician, and in writing the deed the abbreviation “Dr.” was not used as any part of the name. It was proper for the court to hear the evidence and quash the execution, as a sale under it would have passed no title, but cast a cloud upon appellee's land. The service in the case was but a constructive one, and it is better for all parties that the defects be pointed out and remedied in this manner than to allow the land to be sold under a defective and erroneous judgment. The point made by appellant that Kleaver Clymer is a stranger to the proceedings, and, therefore, cannot move to quash the execution, is not well taken. He is not a stranger to the proceedings; he is the owner of the land against which the lien is sought. The action of the court in quashing the execution was proper, and ought to be affirmed.

PHILIPS, C.

The appellant, as collector of Henry county, obtained judgment on order of publication against D. K. Clymer, as a non-resident, to enforce the collection of taxes, alleged to have been assessed on lands of D. K. Clymer. Proof of publication was made, and judgment therein rendered as prayed, enforcing the lien on said land for taxes. Execution was duly issued thereon; the land advertised for sale; and, on the return day of the writ, and the day fixed for such sale, one Kleaver Clymer appeared in court and filed a motion in said cause, setting out, in substance, that he was the true owner of said lands, that he had not been served with any notice of the pendency of said suit, and had not appeared therein, hitherto, and the judgment was not binding on him or said land, and, that the defendant, D. K. Clymer, never owned said land. It was, therefore, moved that said writ be quashed, and the sale stayed.

On the hearing of this motion, evidence was introduced by the promoter of said motion, tending to show that Kleaver Clymer was the owner of said land, and the deed to him was duly recorded in the recorder's office, of said county. In the deed he is designated as Dr. K. Clymer, the evidence...