Turner v. Gregory

• Citation: 52 S.W. 234,151 Mo. 100
• Parties: TURNER v. GREGORY.
• Decision Date: 26 June 1899
• Court: United States State Supreme Court of Missouri

52 S.W. 234

151 Mo. 100

TURNER v. GREGORY.

Supreme Court of Missouri, Division No. 2.

June 26, 1899.

TAXATION — TAX SALE — MISNOMER — PURCHASE BY COLLECTOR.

1. Under Rev. St. 1889, § 7682, requiring actions to enforce the state's lien for taxes to be brought against the owner of the property, a tax sale under a judgment against plaintiff, describing him as Vaughn Turner, on service by publication, while the land was recorded in the name of Singleton V. Turner, is invalid, even though plaintiff was commonly known as Vaughn Turner.

2. The fact that the tax collector is the purchaser at a sale of land for taxes does not make the sale invalid as against public policy.

Appeal from circuit court, Bates county; James H. Lay, Judge.

Ejectment by Singleton V. Turner against Benjamin F. Gregory. There was a judgment for defendant, and plaintiff appeals. Reversed.

H. C. Clark, for appellant. W. O. Jackson, for respondent.

GANTT, P. J.

1. This is an action in ejectment for 120 acres of land in the northern part of Bates county. Benjamin F. Metzler is the common source of title. By warranty deed of April 18, 1878, Metzler and wife conveyed the land in suit to Singleton V. Turner, and that conveyance was recorded April 20, 1878, in the recorder's office of Bates county. The land was swamp land, and was never occupied by Turner. Metzler and wife resided in Johnson county, Mo., and Singleton V. Turner resided in Maraposa county, Cal. The plaintiff testified: "My name is Singleton Vaughn Turner. I live in California, and was living there when I received the deed to the land in suit from Metzler and wife. I am the person mentioned in said deed, the original of which I have mailed to my attorneys at Butler, Missouri. I formerly, prior to coming to California, lived in Holden, Johnson county, Missouri, some fifteen miles from the land in suit. While living in Holden I was usually called Vaughn Turner, and the same is true in California, where I reside. In signing papers I have usually signed my name `S. V. Turner.'" On cross-examination he says: "Vaughn Turner has been the name by which I have always been called and known since my boyhood. It is the name by which I went in the neighborhood of the land. I answered to that name always." The defendant read in evidence a sheriff's deed from the sheriff of Bates county reciting a judgment against these lands in favor of the collector for delinquent taxes thereon for the years 1885 and 1886, which judgment was rendered against Vaughn Turner, and declared to be a lien on said lands, and decreed their sale to satisfy such judgment, interest, and costs. It further recited a sale thereof June 17, 1889, and that Oscar Reeder was the highest and best bidder and purchaser thereof, and the conveyance to said Reeder. Defendant then read a deed from Reeder to himself, of date June 27, 1889. Defendant also produced other witnesses who knew plaintiff during his residence in Missouri, and testified he was known as Vaughn Turner. It is at once apparent that one of the prime questions in this case is whether a suit against Vaughn Turner and an order of publication against Vaughn Turner and a judgment against Vaughn Turner are sufficient to devest the title of Singleton Vaughn Turner, whose title to the land depends upon a warranty deed to Singleton V. Turner, duly recorded prior to the assessment and levy of the taxes which are the basis of the judgment, and prior to the commencement of the suit against Vaughn Turner. The validity of the tax deed depends upon the order of publication. It is a fundamental rule of our law, founded in the plainest principles of natural justice, that no man shall be deprived of his life, liberty, or property without due process of law. Notice of the proceedings against him is essential to their validity. Accordingly, whenever it is feasible, our laws provide for actual, personal service on the defendant of the notice of the action, and in all proceedings the Christian and surname of both the plaintiff and the defendant should be set forth in the pleadings and process with accuracy. Martin v. Barron, 37 Mo., loc. cit. 304, 305. When a party is sued by a wrong name, and actually served with process, if he does not appear, and plead the misnomer in abatement, the judgment will not be void. Corrigan v. Schmidt, 126 Mo. 311, 28 S. W. 874. But a distinction exists between a case of personal service and a case where the defendant is a nonresident, where the only notice is by publication. This, at best, is but constructive service of notice, and, where resort is had to this method, a substantial — even rigid — observance of the law is required, otherwise the judgment will be void. Hutchison v. Shelley, 133 Mo. 400, 34 S. W. 838; Winningham v. Trueblood (Mo. Sup.) 51 S. W. 399 (not yet officially reported); Young v. Downey, Id. 751. Hence, in notifying a person by publication, as he or she can only be designated by his or her name, if his or her name be omitted, or a wrong name is attributed to the defendant, it is at once evident that he receives no notice in fact, and has no opportunity of filing a plea in abatement. These general principles are settled law, but considerable difficulty has been experienced at times in their application. What shall be considered the name of a defendant is not always so plain. One general rule has been to hold the first Christian name as essential, and to hold that the middle name is no part of the man's name, or at least not necessary to his designation. Accordingly, in Corrigan v. Schmidt, 126 Mo. 304, 28 S. W. 874, the order of publication was directed to Owen Corrigan, whereas the...