Troyer v. Wood
| Decision Date | 20 December 1888 |
| Citation | 10 S.W. 42,96 Mo. 478 |
| Parties | Troyer et al. v. Wood, Appellant |
| Court | Missouri Supreme Court |
Appeal from Vernon Circuit Court. -- Hon. Chas. G. Burton, Judge.
Affirmed.
G. S Hoss for appellant.
E. E Kimball for respondents.
Plaintiffs, the heirs of Daniel Troyer, deceased, brought ejectment for the northeast quarter of the southeast quarter of section 18, township 35, range 29. Petition in usual form; answer, a general denial. Plaintiffs proved themselves heirs of Daniel Troyer, deceased, and then showed a regular chain of title from the United States to Holbrook, Holbrook to Huselton, Huselton to Richardson, and Richardson to said Daniel Troyer. The deed from Richardson to Troyer was, however, entered on the records as being from Richardson to Daniel Tragar.
Defendant claims under tax proceedings, resulting in judgment and sale of the land in controversy, and through mesne conveyances from the purchaser at such sale, who received a sheriff's deed for the land aforesaid. The tax suit mentioned was instituted against Daniel Tragar. The circuit court was of the opinion that the tax proceedings were void, because of the insufficiency of the affidavit for publication, in that it alleged the non-residence of the defendant Daniel Tragar, on "knowledge and belief."
Owing to views to be presently developed, it is unnecessary to discuss the sufficiency of that affidavit. For the purposes of this opinion it may be conceded that every step taken in the tax suit against Daniel Tragar was regular and valid from inception to termination. It may also be conceded that, owing to the mistake made by the recorder in recording the deed from Richardson to Daniel Troyer, that deed was so recorded as to make it appear that Daniel Tragar was the grantee in such deed, and therefore, under the ruling in Terrell v. Andrew County, 44 Mo. 309, Tragar must be regarded as the record owner of the land in suit. It may also be conceded that under the ruling in Vance v. Corrigan, 78 Mo. 94, that a suit for back taxes is properly brought against the apparent, i. e., the record owner, of real property, and that such record owner is to be treated as the true owner, and that a tax sale made against such apparent or record owner of the property, will bind the true owner who claims under the apparent owner by unrecorded deed.
These concessions may freely be made, yet being made how do they affect, or what bearing do they have on the case at bar? These concessions and statements have been made in order to a full understanding of the precise status of the case in hand. But Daniel Troyer nor those who derive their title from him, do not claim under Daniel Tragar, neither by unrecorded deed nor otherwise; they are not in privity with him either in blood estate or law, and consequently the principle announced in Vance v. Corrigan, supra, can have no application here. Bigelow on Estop. [3 Ed.] 284.
The only question therefore arising upon the foregoing facts is: What effect did the tax proceedings and judgment against Daniel Tragar have against Daniel Troyer? It is a principle of universal justice that no one shall be condemned in his person or property without notice, and opportunity to be heard in his defense. Notice is therefore essential to the jurisdiction of all courts; and the rule which requires that it be given to the party whose interests and rights are sought to be affected by judicial proceedings is as old as the law itself. A judgment without notice given, without opportunity to be heard, possesses none of the attributes of a judicial determination; it is simply judicial usurpation and oppression; a mere arbitrary edict, based upon an ex-parte statement and entered upon the records of the courts in defiance of the maxim audi alteram partem. Such a judgment deserves not the name it bears and will not be respected and upheld in any forum where right and justice are administered. This doctrine is met with and approved at almost every turn you take in the broad fields of adjudication, and is announced by authorities too numerous for computation. Nations v. Johnson, 65 U.S. 195, 24 HOW 195, 16 L.Ed. 628; Walden's Lessee v. Craig, 14 Peters 154; Webster v. Reid, 52 U.S. 437, 11 HOW 437, 13 L.Ed. 761; Galpin v. Page, 85 U.S. 350, 18 Wall. 350, 21 L.Ed. 959; Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914; Earle v. McVeigh, 91 U.S. 503, 23 L.Ed. 398; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Rockwell v. Nearing, 35 N.Y. 302; Mason v. Messenger, 17 Iowa 261; Freeman on Judgts. [3 Ed.] secs. 117, 118, 495; Hitchcock v. Aicken, 1 Caine's Rep. 473; Blackwell on Tax Tit. 213.
But notice may be either actual or constructive, and the state possesses the power to substitute service by publication in lieu of...
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