Stevenson v. Black

• Citation: 68 S.W. 909,168 Mo. 549
• Parties: STEVENSON v. MARY E. BLACK et al., Appellants
• Decision Date: 21 May 1902
• Court: Missouri Supreme Court

68 S.W. 909

168 Mo. 549

STEVENSON v. MARY E. BLACK et al., Appellants

Supreme Court of Missouri, First Division

May 21, 1902

Appeal from Linn Circuit Court. -- Hon. Jno. P. Butler, Judge.

Affirmed.

A. A Bailey and H. Lander for appellants.

(1) A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars. Freeman on Judgments (3 Ed.), p. 112, par. 117, and notes. If the back-tax judgment is void as to all the parties to it, by reason of some of the owners in the tax case not being served with process, that is the end of plaintiff's case. If the tax judgment is good as to the parties brought into court (the Georgesons) and void as to the Blacks for want of service of process, then their interest in the land was never conveyed by the sheriff's deed in evidence. (2) The plaintiff claiming under a judicial sale is not a purchaser without notice. Mann v. Best, 62 Mo. 491. He must look to the judgment, execution, levy and sheriff's deed. Hewett v. Weatherby, 57 Mo. 276. The purchaser takes all the hazards of his bargain. Craves v. Gorden, 53 Mo. 287. Plaintiff holding under the decree in the tax suit can not dispute or contradict the decree under which he holds; that decree finds that the Blacks are owners in common with the Georgesons, and the record shows that the Blacks (appellants) were never served with process in the tax suit. 2 Smith's Leading Cases, p. 686, and authorities there cited; Case v. Beauregaurd, 101 U.S. 688. The statute requires the tax suit to be brought against the owners of the land. The petition in tax suit must aver who is or are owners. R. S. 1889, sec. 7682; R. S. 1899, sec. 9303. The decree in this case following the necessary averments of the petition, finds that "Lucy R. Georgeson, late Lucy R. Norton, and John Georgeson, her husband, and Mary E. Black and Columbus Black, her husband," are owners of the land. The judgment or decree in the back-tax case is not based on the acts of the parties, but is the adjudication of the court on facts presented; the judgment is not strictly an estoppel, but an absolute bar as against parties and privies. Freeman on Judgments (3 Ed.), pp. 269, 270, 271, secs. 247, 248, 249. Whatever interest the plaintiff acquired under the sheriff's deed, was fixed by the decree of the court under which he claims. "In the same estate there may exist a fee simple and life interest, or a leasehold. The estate may have been mortgaged to secure a debt, and judgment creditors may have liens upon it, and the land may be in the adverse possession of a stranger to the title, and whose possession may be ripening into a right. Each is an owner according to the extent of his interest or claim." Blackwell on Tax Titles, pp. 495, 496. While the proceeding to enforce the lien for back taxes against land is in the nature of a proceeding in rem, yet all owners and interested parties must be notified in the back-tax suit. The assignee of a debt secured on the land is a necessary party. Bank v. Grewe, 84 Mo. 477; Myers v. Bassett, 84 Mo 479. A junior incumbrancer to the tax lien is a necessary party. Stafford v. Fizer, 82 Mo. 393. Wife's interest in her land not affected by tax suit against the husband alone. Gitchell v. Messmer, 87 Mo. 131; Mason v. Gitchell, 97 Mo. 134. One in possession is a necessary party. Bartlett v. Kauder, 97 Mo. 356; Wall v. Donnell, 80 Mo. 195; Keenan v. St Joseph, 126 Mo. 96. (3) The trial court erred in holding that the judgment in the tax case, being void as to the Blacks and valid as to the Georgesons, yet is a sufficient basis to carry the title of the Blacks in the land in question by the sheriff's deed read in evidence, even though they were never served with process. The general rule is, that a judgment on a joint obligation is an entirety, and if void as to one, is void as to all. Freeman on Judgments (3 Ed.), p. 151, sec. 136. The exception to this rule is, where the obligation sued on is a several obligation, and each party is liable for the whole, as held in several cases by this court. Henry v. Gibson, 55 Mo. 570; Lenox v. Clark, 52 Mo. 115.

A. W. Mullins, E. R. Stephens and Harry K. West for respondent.

(1) We do not contend that the judgment in the tax suit was valid against anyone except the Georgesons. We concede that the Blacks were not served with process in that suit, and that, as to them, the judgment is void. All that we claim for that judgment is, that it was a valid judgment, against the Georgesons. We insist that by the sale under that judgment, Northcott acquired the interest of the Georgesons in the land in question. We concede that if the Blacks had any title to the land in question, John W. Northcott did not acquire such title by the tax deed. The record shows that the Blacks had no title and that Mrs. Georgeson was the sole owner of the land and that plaintiff through the tax deed and his deed from Northcott acquired the title. Appellants admitted on the trial that the Hannibal & St. Joseph Railroad Company was the common source of title and that Mrs. Georgeson was the grantee of that company. The evidence shows affirmatively, and the lower court found, that the defendants had no title, and that their only claim was by possession which was not adverse to Mrs. Georgeson. When defendants admitted that the record title was in Mrs. Georgeson and plaintiff showed that he had acquired her title by the tax deed to Northcott, and Northcott's deed to him, he was entitled to recover, unless defendants showed title by limitation. This defendants undertook to do but failed. When both parties claim through a common source of title all that the plaintiff has to show is that he has acquired the title from the common source. Holland v. Adair, 55 Mo. 40; Butcher v. Rodgers, 60 Mo. 138; Cummings v. Powell, 97 Mo. 524; Fellows v. Wise, 49 Mo. 350. (2) Although the judgment in the tax case was void as to the Blacks, it was good as to the Georgesons. Boyd v. Ellis, 107 Mo. 394.

OPINION

VALLIANT, J.

Ejectment for 37.56 acres in Linn county. The petition is in the usual form, the answer is a general denial, except as to possession, and pleads adverse possession for more than ten years. The cause was tried by the court, jury waived. At the trial it was admitted that the Hannibal & St. Joseph Railroad Company was the common source of title and that Lucy B. Norton was the grantee of that company by deed dated May 19, 1876, recorded March 10, 1887, and that at the commencement of the suit the defendants were in possession. Plaintiff introduced in evidence a sheriff's deed under execution on a judgment rendered in a suit in which the State of Missouri at the relation of the tax collector of the county was plaintiff, and Lucy R. Georgeson (formerly Lucy R. Norton) and John Georgeson her husband, M. E. Black and Columbus Black her husband, were defendants, in which judgment it was found that certain state and county taxes against the land were past due and unpaid, and were decreed to be a lien on the same and the land to be sold as in such case provided by law. The sheriff's deed was in the usual form, contained the usual recitals, and purported to convey all the title of the defendants in that tax suit to the purchaser at the sheriff's sale, Jno. W. Northcott. Defendants objected to the deed on the ground that the description, M. E. Black and Columbus Black her husband, was not a description of these defendants, and that the description of the land in the deed was not that in the judgment. The objection was overruled and exception saved. Then plaintiff read a deed from Northcott dated September 28, 1897, recorded October 2, 1897, conveying the land to the plaintiff. Then plaintiff introduced evidence as to the rental value and rested.

Defendants introduced, over plaintiff's objection, evidence tending to show that the land was assessed to C. Norton during the years for which the taxes sued for were alleged to have accrued. Then defendants read in evidence the judgment in the tax suit, which, after a recital that defendants had been duly notified by publication in a newspaper and had made default, proceeded, "And it appearing to the court that this is an action for the enforcement of the lien for back taxes due the State of Missouri on the real estate hereinafter described, it doth proceed to hear the same on the plaintiff's petition and proofs offered in support of the allegations thereof, and upon mature consideration doth find that the defendants are the owners of the following described tract of real estate, to-wit: all that part of the northeast quarter of the northwest quarter of section 2, in township 57, of range 19, which lies . . . . of the Hannibal & St. Joseph railroad, said to contain 37.50 acres." Then the decree goes on to find the amount of taxes due and to declare the same a lien on the land and to order a sale under execution, etc.

Defendants read in evidence the order of publication which was only against Lucy R. Georgeson and John Georgeson, whom it described to be non-residents, and a further order of court for a summons to issue as to Mary E. Black and Columbus Black. In the order of publication the land is described as above quoted from the judgment, with the addition of the word "south" in the blank there shown. The original papers in the back-tax suit were lost. The record does not show any service of the summons in that case on these defendants, and the recital in the decree is that they were notified by publication. They were residents of the county, and Columbus Black was a minor.

Defendants' further evidence tended to show that one F. S. Black, husband of defendant Mary, took...