Coombs v. Crabtree

105 Mo. 292 | Mo. | 1891

Brace, J.

This is an action in ejectment for a tract of land in Barton county, in which defendant obtained judgment, and the plaintiffs appeal. Thomas Carr is the common source of title.

It is conceded that plaintiffs are entitled to recover unless the title of said Carr was divested by virtue of two sheriff’s deeds of date twenty-sixth of April, 1879, from Dennis Springer, sheriff of said county, one to R. A. Ford and one to Gr. F. Burkhart, executed in pursuance of a sale under execution on a judgment in a suit for delinquent taxes, rendered by the circuit court for said county in favor of the state at the relation of Earll, collector of said county, against the land in question, in which said Carr was the party defendant.

The points made are: First, that the affidavit of the collector for an order of publication of notice is insufficient in that it is made on information and belief. We held in Allen v. Ray, 96 Mo. 542, that such an affidavit was a substantial compliance with the requirements of the statute. Besides, the order having been properly served,, the judgment is not subject to collateral attack for a defect in the affidavit. Burnett v. McCluey, 92 Mo. 230. In Troyer v. Wood, 96 Mo. 478, the publication was directed against Trager, consequently there was no service at all on Troyer, and the judgment against him was a nullity. These decisions are entirely consistent. This point is not well taken.

A further objection is made, that the affidavit should have shown by direct averment that service could not be had upon the non-resident owner by ordinary summons ; this contention finds no support in the statute under which these proceedings were had, by which it was provided: “That all notices and process in suits under this act shall be sued out and served in the same manner as in civil actions in circuit courts, and' in case of suits against non-resident, unknown parties, or other owners on whom service cannot be had by ordinary summons, the proceedings shall be the same as now provided by law in civil actions affecting real or personal property.” Laws, 1877, sec. 6, p. 386.

The law assumes that service by ordinary summons cannot be had on non-resident and unknown owners, and authorizes service by publication on them. It also authorizes service by publication on other persons, residents of the state, but who have absconded or absented themselves from their usual place of abode in this state, or concealed themselves, so that the ordinary process of law cannot be served upon them. R. S. 1879, sec. 3494. It is only in the case of residents of the state that the affidavit is required to state that the ordinary process of law cannot be served on the owner by reason of the state of facts provided for in the statute.

Second. That the order of publication was not published in a newspaper published and circulated in the county in which the proceedings were had, as required by the then existing law. Gr. S. 1865, chap. 174, sec. 5 ; Amended Laws, 1877, p. 344. The act cited was a general provision made for the publication of all advertisements, notices and orders of publication, and might have governed the publication in this case, but for the fact that special provision was made then as now for the publication of notices to non-residents in civil actions, by which “every order against non-resident, absent or unknown defendants shall be published in some newspaper published in this state which the court, judge or clerk may designate as most likely to give notice to the person to be notified. Gr. S. 1865, chap. 164, .sec. 17.

The order of publication was made under this provision, specially made for such cases, and which upon obvious principles must govern it, in which it was ordered that “a copy thereof be published in the Barton county Advocate, a newspaper printed and published in said Barton county,” etc. The proof shows, and the judgment recited, a publication in that paper, “ a newspaper printed and published in Lamar, Barton county, Missouri.”

Third. That the tax deed did not show a judgment finding any amount of taxes delinquent against the land. This objection is founded upon the fact that in the tabular statement the dollar mark is not prefixed to the figures showing the amount due on each tract. There is nothing in this objection ; the aggregate amount of the taxes, interest and cost in dollars and cents is written at length in the deed and judgment, and no one could doubt for a moment that the figures that went to make that aggregate also represented dollars and cents.

Fourth. That the land was not described in the tax proceedings. The land sued for is described as lots 1 and 2 of the southwest fractional quarter and the west half of southeast quarter of section 6, township 33, range 32. The land described in the tax proceedings, judgment and execution is the south half of section 6, township 33, range 32 ; as the south half included both the southeast quarter and the southwest quarter of said section it included the west half of the southeast quarter, and all the lots in the southwest quarter of said section ergo, it included lots 1 and 2 in said quarter section sued for. There is nothing in this objection, nor in the'fifth and last which is founded upon the fact that the letter s is omitted from the word tract in the recital of the sale' of the several tracts described in the deed to Ford ; it appearing plainly on the face of the deed that he was the-highest bidder for all of the tracts described in the deed at the price therein stated, and that for that price all the described real estate was sold, and by the sheriff conveyed to him, in which description was included the land in controversy.

Finding none of the points made against the sheriff ’ s deeds tenable, the judgment of the circuit court is affirmed.

All concur, except Barclay, J., absent.