Wheelen v. Weever
| Decision Date | 19 December 1887 |
| Citation | 6 S.W. 220,93 Mo. 430 |
| Parties | Whelen, Plaintiff in Error, v. Weaver et al |
| Court | Missouri Supreme Court |
Error to Shannon Circuit Court. -- Hon. J. R. Woodside, Judge.
Reversed and remanded.
Settle & Bugg for plaintiff in error.
(1) The judgment rendered by the justice of the peace, on which is based defendants' claim of title in the proceeding to enforce the state's lien for back taxes, is void, because said proceedings and judgment are against Henry Wheler and not Henry Whelen. The names Henry Wheler and Henry Whelen are not one and the same name. 55 Mo. 581. Henry Whelen was not a party to the suit to enforce the state's lien for back taxes, and his interest in the lands in controversy cannot be affected thereby. Park v. Laughlin, 49 Mo. 162. (2) No delinquent list including the lands in controversy, for the year 1878, was returned by the collector of Shannon county to the county court, and hence no right of action ever accrued to the state to enforce its lien for back taxes. Blackwell on Tax Titles [4 Ed.] 204, 205. (3) The judgment rendered by the justice of the peace, upon which is based defendants' claim of title, is absolutely void. Justices of the peace have no jurisdiction in suits to enforce the state's lien for back taxes. Gordon v. Hopkins, 87 Mo 519.
A. H Livingston for defendants in error.
This is an action of ejectment for three parcels of land in Shannon county. Plaintiff shows a complete chain of title, by patent and deeds, in himself, to the described property, all of which deeds were duly executed and recorded on or prior to December 12, 1871. He continued to be owner of the land until 1879, when he conveyed to one Mendenhall, who conveyed back to plaintiff in February, 1883.
The defendants' title is a sheriff's deed, dated November 5, 1880, to defendant Weaver. The deed recites a sale under a special execution, issued on a transcript of a judgment of a justice of the peace. The judgment was rendered by the justice in a suit by the state at the relation of the collector of Shannon county against Henry Wheler for the collection of taxes due on the land for the year 1878. The only notice of that suit, to the defendant in that case, was an order of publication. The sheriff's deed does not describe one of the parcels of land sued for, and, as to that, the defendant does not have even a shadow of a title.
Again the plaintiff sues by the name of ...
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