Vaughan v. Daniels

• Decision Date: 20 May 1889
• Parties: VAUGHAN v. DANIELS.
• Court: Missouri Supreme Court

11 S.W. 573

98 Mo. 230

VAUGHAN v. DANIELS.

Supreme Court of Missouri.

May 20, 1889.

TAXATION — PLEADING — JUDGMENT.

Rev. St. Mo. § 6837, requires that the petition in a tax-suit include the lands on which the taxes are delinquent, and that the tax-bill certified by the collector, which is declared prima facie evidence of the amount claimed, be filed. Held, that the tax-bill so filed is not a part of the petition, but evidence only, and a judgment for delinquent taxes on a petition which does not describe the land, nor refer to the tax-bill, though a tax-bill containing a description is filed, is void, and open to collateral attack. Where no land is described in the petition, there is no jurisdiction of the subject-matter.

Appeal from circuit court, Vernon county; CHARLES G BURTON, Judge.

Action by John M. Vaughan against James O. Daniels. Defendant appeals.

M. A. Fyke, for appellant. S. P. Sparks, for respondent.

RAY, C. J.

This is an action of ejectment to recover the described lands; the petition being in the usual form, and the answer one of general denial. The plaintiff is the owner of the patent title, and the various deeds, in his chain of title, read in evidence, are conceded to be formal and regular on their face, and to convey the title to plaintiff. The question and exceptions here presented and urged for our consideration, and upon which our opinion is required, involve the sufficiency and validity of the sheriff's deed under which defendant claims title, which was made under a sale upon special execution for delinquent taxes for certain specified years, and was read in evidence by defendant. The record and proceedings in the tax-suit entitled "State ex rel. Anderson, Collector, v. Lewis McCibben," under which defendant claimed, were put in evidence by plaintiff in rebuttal, to avoid the sheriff's deed, and it appears therefrom, among other things, that the petition therein did not allege that the defendant was a non-resident, and that the affidavit of non-residence, on file therein, by an attorney in the cause, was that to "the best of affiant's knowledge and belief the defendant, Lewis McCibben, was a non-resident." The affidavit, moreover, did not have the jury of the officer taking the same attached. The trial court, as shown by its declarations of law given in the cause, held, among other things, that the said affidavit on file, with the papers in said tax proceedings so read in evidence, did not comply with the law, and that the judgment in said cause was null and void. Waiving a decision of these questions, as to whether the affidavit was merely insufficient and irregular and amendable or was a nullity, and the judgment therefore void, as held by the trial court, the judgment and proceedings and the tax-deed were, we think, void for other reasons, apparent upon the record and the conclusion of the court in the case at bar therefore right and proper, whether its said declarations as to said affidavit were or were not erroneous. It is familiar law "that when upon the entire record the judgment is for the right party it will not be reversed, although the trial court in deciding the case may have assigned a wrong reason therefor." The said petition in the tax-suit does not give the numbers or contain any description whatever of the lands sought and intended to be subjected to the lien. In this connection it may be proper to add that it appears by said record of said tax-suit, so offered in evidence in rebuttal by plaintiff, that the petition therein, after some preliminary and formal allegations, proceeds as follows: "Plaintiff further states that, under and by virtue of the laws of the state of Missouri in force and effect at the time hereinafter mentioned, the officers and agents of said-state and county having legal authority so to do, there were assessed and levied upon the following described real estate, lying, being, and situate in the county of Vernon and state of Missouri, to-wit."...