Woodruff v. Bunker Culler Lumber Co.

• Decision Date: 09 May 1912
• Citation: 146 S.W. 1162
• Parties: WOODRUFF v. BUNKER CULLER LUMBER CO. et al.
• Court: Missouri Supreme Court

146 S.W. 1162

WOODRUFF v. BUNKER CULLER LUMBER CO. et al.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

1. APPEAL AND ERROR (§ 662)—RECORD—ERRORS PRESENTED FOR REVIEW.

Where the bill of exceptions stated that plaintiff offered in evidence an order of publication and proof filed in a former suit, and that defendant objected because it had never been filed and that there were no marks of filing shown, defendant cannot on appeal contend that the proof of publication was not filed.

2. PROCESS (§ 103)—CONSTRUCTIVE SERVICE— SERVICE BY PUBLICATION.

In order to constitute constructive process by an order of publication, not only must the order be made, but it must be published as required by law.

3. PROCESS (§ 145)—PUBLICATION—PRESUMPTIONS —RECITALS.

Mo. Rev. St. 1909, § 590, provides for the proof of publication by the filing of a copy with the affidavit of the publisher of the newspaper showing publication. In a tax proceeding where land was sold for taxes, an order of publication was made, and the copy filed showed that it was against W. N. W. instead of William N. W. Held that, as no presumptions in support of a judgment even on collateral attack are allowed in opposition of any statement in the record, there is no presumption that there was any other publication than the one above mentioned.

4. NAMES (§ 6)—ABBREVIATIONS—"WM."

In a proceeding to sell land for taxes, an order of publication directed against W. N. W. is invalid as against the owner whose name is William N. W.; this being true, even though such owner had executed a mortgage, signing his name Wm. N. W., that being an abbreviation for William.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Suit to quiet title by Carrie Woodruff against the Bunker Culler Lumber Company and S. J. Bunker. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

This is a proceeding brought in the circuit court of Dent county to quiet the title to a half section of unimproved timber land. The answer sets up title by the statute of limitations and alleges that William N. Woodruff, under whom plaintiff claims, executed a mortgage on the land on November 9, 1874, to Emmet C. Burhaus for $1,000, which was recorded December 3, 1874, and that all the right and title of said Burhaus had become vested in the defendants, and that they are the legal holders of said mortgage, and that said mortgage has never been paid, and that default has been made in the payment of the mortgage, and that the defendants are entitled to possession until plaintiff shall pay the amount of said mortgage. The answer admits that defendants claim title and denies all other allegations of the petition. The reply is a general denial. There was judgment for the defendants, and the plaintiff has appealed.

The land was conveyed to William N. Woodruff by deed dated May 8, 1873, and filed for record December 3, 1874. On November 9, 1874, Woodruff by the name "Wm. N. Woodruff" executed a mortgage on the land to Emmet C. Burhaus to secure $1,000 in three notes, all payable within a year. It was filed for record December 3, 1874. The evidence shows that the defendants never at any time held those notes or mortgage. Woodruff died in 1899, and the plaintiff, his widow, is his sole devisee, his will, duly probated, being in evidence.

The defendants put in evidence the judgment in a suit for taxes on the land against "William N. Woodruff," rendered April 14, 1879, in which the court found "that the defendant has been duly and legally notified of the pendency, object, and general nature of this action, by publication in the `Salem,' a newspaper published in Dent county, Mo., for four weeks successively, the last insertion of which was more than four weeks before the first day of the last term of this court," etc. The defendants claim through a regular chain of title from the purchasers under the execution on that judgment.

The bill of exceptions contains the following: "Plaintiff then offered in evidence the order of publication and proof thereof filed in suit No. 115, marked `Exhibit D,' as follows, to wit: In the Dent circuit court in vacation, March 20, 1878, the state at the relation and to the use of Silas Headrick, collector of the revenue of Dent county, in the state of Missouri v. W. N. Woodruff." It then set out the order of publication in full and the affidavit of the publisher attached thereto proving its publication, the jurat to which was as follows: "Sworn to and subscribed before me the 10th day of October, 1878. [Seal] J. R. Callahan." The bill of exception then states: "Defendants objected to the introduction of the order of publication and certificate of publication for the reason that the same had never been filed, and there are no marks of filing shown on the same by the clerk of the circuit court, and the same are not identified as being papers in said cause, which objection was by the court overruled." No exception was noted.

The declarations of law given by the court contained the following: It is objected that the tax sale was not valid for the reason that what purports to be the copy...