Williams v. Grudier

• Citation: 174 S.W. 387,264 Mo. 216
• Parties: HARRISON WILLIAMS, Appellant, v. JOHN W. GRUDIER
• Decision Date: 02 March 1915
• Court: Missouri Supreme Court

174 S.W. 387

264 Mo. 216

HARRISON WILLIAMS, Appellant, v. JOHN W. GRUDIER

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from Douglas Circuit Court. -- Hon. John T. Moore, Judge.

Reversed and remanded (with directions).

Asbery Burkhead for appellant.

(1) The petition was filed against Frances M. Worrell, and the summons was issued against Francis Worrell (the former a woman and the latter a man), and the summons was served on a person by the name of Franas W. Warroels, and judgment was taken by default. The court will take judicial notice that "Frances," defendant named in the petition, is the name of a female, and that "Francis," the name used in the summons, is the Christian name of a male. Supernant v. People, 110 Ill.App. 121; Tilson v State, 29 Kan. 452; Taylor v. Commonwealth, 20 Gratt. (Va.) 825. "Franas W. Warroels," the name of the person served with summons by the sheriff, is not idem sonans with either "Frances M. Worrell" nor "Francis M. Worrell." It is not difficult for the attentive ear to distinguish the names when they are pronounced. "Franas" neither sounds like "Frances" nor "Francis." Neither does "Worrell" sound like "Warroels." There was no proof tending to show that "Francis M Worrell," "Frances M. Worrell" and Franas W Warroels were one and the same person. If such had been true, it would have been easily proven. The following are not idem sonans: "Archer" and "Ashley," Bates v. Bank, 7 Ark. 394; "Battles and "Bappel" or "Bappels," Leach v. State, 132 Ala. 26; "Davies" and "David," David v. People, 192 Ill. 176; "Emma" and "Emily," Berge v. Berge, 94 Mo.App. 15; "Grafton" and "Graton," Graton v. Holliday Co., 189 Mo. 322; "Griffin" and "Griffie," State v. Griffin, 118 Mo. 118; "Jeffery" and "Jeffries," Marshall v. Jeffries, 16 Fed. Case No. 9128a, Hempst. 299; "Carrey" and "Scarrey," Scarrey v. Bunker-Culler Co., 233 Mo. 686; "Lane" and "Leane," Geer v. Mo. Lum. Co., 134 Mo. 85; "Simonson" and "Siemson," Simonson v. Dolan, 114 Mo. 176. The omission or addition of a final "s" is usually held a fatal variance. Favor v. Robinson, 10 Tex. 206; Seman v. Hill, 7 Ark. 70; Humphries v. Whitten, 17 Ala. 30. (2) It is competent to show by the roll and files and other records that the proper notice was not given, although the judgment recites the contrary. Williams v. Mourse, 125 Mo. 574; Laney v. Garbee, 105 Mo. 355; Russell v. Grant, 122 Mo. 161; Harness v. Cravens, 126 Mo. 252. Jurisdiction of the persons of the defendants, other than the common-law service, can only be acquired by a rigid and strict compliance with the statute. Harness v. Cravens, 126 Mo. 233; Shuck v. Moore, 232 Mo. 649; Kunzi v. Hickman, 243 Mo. 103. And although the judgment may recite that the defendant was duly served, it may be collaterally impeached by the files and rolls and other records. Williams v. Monroe, 125 Mo. 574; Claude v. Pierce City, 86 Mo. 357; Laney v. Garbee, 105 Mo. 355; Russell v. Grant, 122 Mo. 161; Feust v. Caster, 174 Mo. 287. The rule that all official acts are presumed to have been rightly and regularly done does not obtain in a tax suit, and he who asserts the validity of a tax deed has the burden of showing that all the steps necessary to a good and valid sale were taken. Kries v. Land Co., 121 Mo.App. 184. While a sheriff's deed regular on its face is prima-facie good, yet it may be overturned, as it is in this case, by the whole record in the tax proceedings, and if the judgment is void the deed conveys no title. Cummins v. Brown, 181 Mo. 711; Orchard v. Bank, 121 Mo.App. 338. The owner of the res is entitled to notice before his property can be taken from him. Without such notice, and without a day in court to the owner of the res, no judgment in rem is valid. Trust Co. v. Railroad, 195 Mo. 669.

G. W. Thornberry and A. H. Buchanan for respondent.

(1) The decree of the trial court in this case should be sustained for the reason all the evidence is not brought to this court by appellant. This being a case in equity, the entire evidence should be before the appellate court. Rule 7 of this court; Pitts v. Pitts, 201 Mo. 356; Geltz v. Anisdem, 125 Mo.App. 592; Heffernan v. Weir, 99 Mo.App. 301; Nelson v. Hall, 104 Mo.App. 466. And unless all the evidence is before the appellate court, the presumption is the trial court committed no error in its finding and the appellate court will defer to the finding of the trial court and affirm. Neither can appellant substitute his opinion as to what is material evidence or what is a sufficiency of evidence in lieu of the complete evidence. Jackson v. Railroad, 85 Mo.App. 443; Davies v. Boyers, 140 Mo.App. 593. Both parties claim under Francis M. Worrell as common source of title and it is a question only whether title passed under the tax sale in 1894. (2) There is no merit in plaintiff's contention over the spelling of the name Francis. It would not be a material defect whether spelled Francis, Frances or Fransas. Skillman v. Clardy, 255 Mo. 590; Williams v. Sands, 251 Mo. 147; Maier v. Brock, 222 Mo. 97; Green v. Meyers, 98 Mo.App. 438; Davison v. Life Assn., 166 Mo.App. 625.

GRAVES, P. J. Bond and Blair, JJ., concur in result.

OPINION

GRAVES, P. J.

Action to quiet title to the northwest quarter of section 9, township 25, range 15, in Douglass county, Missouri. The petition is in the usual form under the statute, with the exception that in it the plaintiff adds: "and upon the finding that the fee title is in the plaintiff, that the court set aside and for naught hold the following deeds of conveyance under which the defendant claims, to-wit: (Here follows a description of a number of deeds in defendant's chain of title).

The answer is likewise a little out of the usual line under the statute, and reads:

"Defendant for amended answer to plaintiff's petition denies each and every allegation therein contained, and for further answer to plaintiff's petition says that one link of the chain of title through which he claims the lands in said petition of plaintiff described, to-wit, the northwest quarter of section 9, township 25, range 15, in Douglas county, Missouri, is a tax deed, dated the 27th day of September, 1894; that said tax deed is based on a judgment rendered in the case of the State of Missouri at the relation and to the use of J. W. Singleton, collector of the revenue of Douglas county, Missouri, v. Francis M. Worrell, at the March term, 1894, of the Douglas County Circuit Court; that said tax deed and the execution and judgment upon which said deed is based show the true description of the said land, to-wit, the northwest quarter of section 9, township 25, range 15, but the petition and back tax bill upon which the judgment in said cause is based have been changed and altered since said judgment was rendered, so that said petition and back tax bill, instead of showing the correct description of said lands as above described, show them to be the northwest quarter of section 9, township 25, range 16; that the date of the service of the summons by the sheriff in said cause shows to have been changed, altered or erased since the rendition of said judgment, so that the said return of the sheriff does not show to be a legal and sufficient service to base a judgment on, and that the publisher's affidavit to the sheriff's notice of sale shows to have been altered and changed since said judgment was rendered and now shows said notice to have been published, commencing on August 30th and ending on September 13, 1894, instead of the correct dates which said notice was published, to-wit, August 30th, September 6th, September 13th and September 21, 1894. Defendant further says that he is the owner in fee simple of said lands above described, and that plaintiff claims some right, title or interest in said lands adverse and prejudicial to the title of defendant.

"Therefore the defendant prays the court to try, ascertain and determine the right, title and interest of plaintiff and defendant, respectively, in and to the lands herein described, and especially to hear and determine all matters and things, erasures, changes, alterations and mutilations that may appear in the tax proceedings above set out, and by its decree adjudge the title to said lands to be in defendant and that this plaintiff hold nothing on account of the title as set up and claimed in his petition, and for all proper relief."

Reply, a general denial.

It was admitted that the common source of title was Francis M. Worrell.

Plaintiff introduced a warranty deed from Francis M. Worrell to Harrison Williams, of date February 15, 1892, but recorded October 19, 1910. In the mean-time, i. e., between the date of the deed and the date of the record, two tax suits had been brought and the lands sold or attempted to have been sold, under judgment in these cases.

Defendant undertakes to dereign his title through one or both of these tax proceedings. The fight thus centered below, and must so center here. The contentions, pro and con, as to the validity of these proceedings will be noted in the opinion. The lands appear to be wild and uncultivated lands. This sufficiently states the case.

I. It is suggested in the brief for respondent, that the judgment should be affirmed because the appellant has not brought to this court in his abstract all the evidence. This, upon the theory that the action is one in equity. The abstract of record is a little peculiar, in that it sets out what purports to be the substance of the evidence in places, and then in other places sets out the full questions and answers. We have gone over the record thoroughly, and conclude that the abstract is sufficient, even under our rule in equity cases. There is no counter abstract of record, nor is it pointed...