| Mo. | Oct 15, 1888
This is an action of ejectment com. menced by plaintiff in the circuit court of Barry county against John Ray and Preston Gibson brought here by appeal. Pending the appeal in this court John Ray died and his heirs, Charles and Arabella Ray, have been made parties respondent.
The plaintiff seeks to recover possession of the south half of section 14, township 23, in range 29, patented by the United States to one John McPeely, in March, 1867, and to show title in himself, introduced in evidence the patents to McFeely ; a warranty deed from McFeely to J. Stewart Lowe, dated April 10, 1867, recorded in Barry county, February 15, 1883 ; a warranty deed from Lowe and wife to George Crown, dated January 1, 1874, recorded November 8, 1875; a quit-claim deed from Crown and wife to Horace P. Williams and Thomas M. Allen, plaintiff, dated February 13,1882, and recorded February 15, 1883, and a quit-claim deed from Williams to plaintiff, dated August 21, 1883, and recorded August 23, 1883, conveying the land in controversy, and rested his case.
The defendants admitted they were in possession
The plaintiff in rebuttal then offered in evidence the affidavit of non-residence of McPeely and the order of publication, and offered to read in evidence the assessor’s books of said county for the years 1871 to 1876, inclusive, to show that the same had not been verified by the affidavit of the assessor as the law requires, and that no legal assessment of said lands had been made for said years. To the introduction of the assessor’s books, the defendants objected and the court sustained the objection and refused to permit said books to be introduced in evidence, to which ruling the plaintiff excepted.
The case was tried before the court without a jury. The court refused all the declarations of law asked by the plaintiff, and, at defendants’ request, declared the law of the case to be that “ the judgment in the tax suit and the sheriff’s deed thereunder, as introduced in evidence,' were sufficient to convey the title to the purchaser. The proceeding by suit against the lands for delinquent taxes was properly conducted against the person appearing from the deed records to be the real owner of the land. If the purchasers at the sheriff’s sale under tax judgment had no notice of previous conveyance by McPeely to another person, their purchase
I. There was no error in sustaining the objection of the defendants to the introduction of the assessor’s books for the purpose of showing that they, not having-been verified by the assessor’s affidavit, the lands in controversy had not been legally assessed for the years 1871-1876. The judgment of the circuit court in the tax suit was conclusive as to the validity of the assessment in a collateral proceeding. Jones v. Driskell, 94 Mo. 190" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/jones-v-driskill-8009186?utm_source=webapp" opinion_id="8009186">94 Mo. 190 ; Allen v. McCabe, 93 Mo. 138" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/allen-v-mccabe-8009093?utm_source=webapp" opinion_id="8009093">93 Mo. 138; Brown v. Walker, 85 Mo. 262; Wellshear v. Kelly, 69 Mo. 343" court="Mo." date_filed="1879-04-15" href="https://app.midpage.ai/document/wellshear-v-kelley-8006186?utm_source=webapp" opinion_id="8006186">69 Mo. 343; Hill v. Sherwood, ante, p. 125.
II. The sufficiency of the order of publication and the affidavit on which it was issued was questioned in the trial court. The petition was signed by the relator, J. W. Lacompt, as collector of Barry county, who made affidavit at the end of it “ that he has good reason to believe and does believe that the within named John McFeely is a non-resident of the state of Missouri.” Whether regarded as an allegation in the petition or an affidavit of non-residence, it is a substantial compliance with the requirements o'f the statute.
III. “ The object and general nature of the suit ” is sufficiently stated in the order to be “to obtain judgment against him for the taxes, interest and costs due on the south half of section 14, township 23, range 29, in Barry county, Mo., for the years 1871, 1872, 1873, 1874, 1875 and 1876, amounting in the aggregate to $92.86.” It was not absolutely necessary that the order of publication should contain a description of the land. (Goldsworthy v. Thompson, 87 Mo. 233" court="Mo." date_filed="1885-10-15" href="https://app.midpage.ai/document/goldsworthy-v-thompson-8008484?utm_source=webapp" opinion_id="8008484">87 Mo. 233), but if it had been by this description the land could easily and readily have been identified and located. 2 W. S. p. 1212, sec. 240.
Y. McPeely was duly served ; he was the patentee of the lands in controversy; his patents therefor had never been placed upon the records of Barry county. Since April 10, 1867, he has had no interest in the premises. At the time the tax-suit was instituted, when the sale was made, and when the sheriff’s deed was executed and delivered, George Crown was the real owner of the land by warranty deed spread upon the records of the county in which the land was situate. While it in no way appeared upon the records that McPeely had ever conveyed land, also, it in no way appeared by those records, so far as shown in the evidence in this case, that he was then the owner of the land.
The law under which this tax-suit was brought required that it should be brought against “the owner of the property.” Laws of 1877, p. 384, sec. 4. In Vance v. Corrigan, 78 Mo. 94" court="Mo." date_filed="1883-04-15" href="https://app.midpage.ai/document/vance-v-corrigan-8007398?utm_source=webapp" opinion_id="8007398">78 Mo. 94, it was held, under a statute requiring suits for the enforcement of liens for special taxes to be brought against the owner of lands, that a.suit could be brought and a valid judgment rendered against the land by making the person, appearing by the registry of deeds to be the owner, party defendant to the suit, in the absence of notice that such person was not the true owner, and that a purchaser under the .judgment in such suit in the absence of such notice would be protected in his purchase against' the holder of an unrecorded deed from such apparent owner. The priniple of this case, as applicable to a judgment in a suit for delinquent taxes under the general revenue law of
Now what notice did the records in this case give the collector who brought the tax-suit and to the purchaser at the tax-sale ? Not that McFeely was the owner of the land. No record existed in Barry county at that time, so far as' the evidence in this case shows, pointing to him as the owner of this land, except perhaps the tax-book in the collector’s office, and that this was no such record as would protect the purchaser was vigorously asserted in Watt v. Donnell, 80 Mo. 195" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/watt-v-donnell-8007674?utm_source=webapp" opinion_id="8007674">80 Mo. 195. The only evidence of ownership to be found in these records at that time was the warranty deed from Lowe and wife to George Crown. Crown was the man pointed to by these records as the owner of the land, and in doing this they accomplished their purpose, for he was then in fact the real owner. Of the record of his deed, the collector and purchaser were
The judgment of the circuit court is therefore reversed and the cause remanded.