Wall v. Holladay-Klotz Land & Lumber Co.

• Decision Date: 09 June 1903
• Court: Missouri Supreme Court
• Parties: WALL v. HOLLADAY-KLOTZ LAND & LUMBER CO.

75 S.W. 385

175 Mo. 406

WALL v. HOLLADAY-KLOTZ LAND & LUMBER CO.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

JUDGMENT — PROCESS TO SUPPORT — KNOWN AND UNKNOWN DEFENDANTS.

1. A sheriff's deed, conveying land sold on execution under a judgment for delinquent taxes, recited that the judgment was against the "heirs" of a particular person. The latter in his lifetime resided in another county, where his heirs also resided. The order of publication in the suit in which the judgment was rendered was destroyed. Held, that the deed and judgment were void; it being presumed, from the use of the word "heirs," that they were known, requiring the setting forth of their names in the petition and process, so that the order of publication of the process could be procured under Rev. St. 1899, § 575, providing for orders of publication of process against nonresident defendants.

2. The recital, in a sheriff's deed conveying land sold on execution under a judgment for delinquent taxes, that it was executed under a special execution issued on a judgment rendered against the "unknown heirs" of a particular person, presumptively showed a valid judgment, and that the proceedings to collect the taxes were instituted in accordance with Rev. St. 1899, § 580, providing for publication of process against unknown defendants.

Appeal from Circuit Court, Wayne County.

Action by E. R. Wall against the Holladay-Klotz Land & Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

M. R. Smith, for appellant. James F. Green, for respondent.

BURGESS, J.

This is an action by plaintiff, under the provisions of section 650, Rev. St. 1899, to quiet the title to 120 acres of land in Wayne county, of which plaintiff claims to be the owner in fee. David Bollinger is the common source of title. He died in Bollinger county, and plaintiff claims that he left a will, by which he devised the lands in question to his sons, Noah A. Bollinger and Daniel E. Bollinger. This will was never recorded in Wayne county, nor was it offered in evidence; it having been principally destroyed by fire. It was, however, admitted to probate in Bollinger county upon proof of its contents, and a copy of that record was read in evidence by plaintiff. The land in question is embraced in the land described in said will as the "home farm." On the 24th day of February 1898, Emore and Noah Bollinger and their wives, for and in consideration of the sum of $10, conveyed to plaintiff by quitclaim deed the land in question. Defendant claims title by virtue of two sheriff's deeds—one dated March 19, 1890, conveying the interest of "the unknown heirs of David Bollinger" to H. N. Holladay, for the N. E. ¼ of the S. E. ¼ and S. W. ¼ of N. E. ¼ of section 22, and S. E. ¼ of N. E. ¼ of section 23, township 23, range 7, and the other, of the same date, conveying the interest of the "heirs of David Bollinger" to C. A. Bennett for the N. E. ¼ of S. E. ¼ of section 22, and S. E. ¼ of N. E. ¼ of section 23, all in township 30, range 7. The grantees in these deeds subsequently conveyed to defendant.

The court, after hearing the evidence, made its finding as follows: "In this case the court makes the following findings of facts: That the land described in plaintiff's petition was patented by David Bollinger, now deceased; that David Bollinger died in 1869, testate; that he devised the lands in question to his sons, N. A. Bollinger and D. E. Bollinger; that said will was probated and recorded in Bollinger county, which was the home of David Bollinger and his sons, N. A. and D. E. Bollinger, who still live there; that the said devisees paid taxes on the land in question after their father's death until about 1876, and never paid any taxes thereafter; that in 188_ the collector of Wayne county, Missouri, commenced a tax suit for delinquent taxes against the unknown heirs of ...