155 S.W.2d 155 | Mo. | 1941
Lead Opinion
This is an action in equity to set aside a tax sale of real estate in the City of Joplin, to declare void the sheriff's deed issued thereunder in 1937, and to adjudge title in plaintiff. Defendant Arne (grantee in the tax sale deed) answered claiming title and seeking the affirmative relief of adjudging fee simple title in him. The court entered judgment declaring title to be in defendant Arne, and plaintiff has appealed.
The record owner of the property was George L. Jones, who had died intestate prior to the institution of the tax suit in 1933. His widow Minnie Jones lived in the property until she died in 1936, after the tax judgment was entered. George L. Jones left four surviving children and two grandchildren who were descendants of deceased children. Plaintiff, who had no interest at the time of the tax sale, obtained deeds from two of the surviving children before bringing this suit in 1939; and thereafter from the first two of the four named defendants herein. (Other than Arne.) The tax suit was brought against Minnie Jones and the unknown heirs, etc., of George L. Jones.
Plaintiff's claim is that the judgment in the tax proceeding, and deed thereunder, is absolutely void and a nullity. Plaintiff's petition stated six grounds for this claim, namely:
1. The heirs of George L. Jones (the last record owner) could have been ascertained upon inquiry of their mother who occupied the property; two of them lived in Joplin.
2. One of the heirs was a minor and no guardian ad litem was appointed.
3. The affidavit for publication was not made and signed by the collector, or anyone else.
4. The publication was insufficient because it was addressed only to unknown defendants instead of to nonresident unknown defendants.
5. The suit was not tried at the return term of any writ and was continued without cause before order of publication.
6. The sale price was inadequate. ($31 for $1000 property.)
[1, 2, 3] Grounds 1 and 2 have been abandoned by not referring to them in either the assignments of error or points and authorities. [Clay v. Owen,
[4] Defendant's contention (meaning Arne) is that plaintiff cannot maintain this action because she was not a party to the tax suit. This contention is based on Sections 1249 and 1267, R.S. 1939. [Secs. 1083 and 1101, Mo. Stat. Ann., pp. 1382 and 1396.] Ewart v. Peniston,
[5] Concerning plaintiff's ground No. 3 (failure to make proper affidavit for valid service by publication), the petition in the tax suit alleged plaintiff's belief that there were persons interested "whose names he cannot insert because they are unknown," and described such claims to be interests [157] derived "as consorts, heirs, devisees, donees, alienees or immediate, mesne or remote voluntary or involuntary grantees of the said George L. Jones, deceased." The affidavit verifying the petition was, as follows:
"State of Missouri, County of Jasper, ss.
"Frank W. Bair, collector of the revenue, being duly sworn, declares that the facts stated in the foregoing petition are true and correct according to his best knowledge and belief.
*794"(by, rubber stamp, stencil print) Frank W. Bair, "Collector, Jasper County, Missouri.
"(signed) By Geo. W. Crocker, "D.C.
"Subscribed and sworn to before me this 18th day of March, 1933.
"(signed) Geo. E. Masters, "Clerk, Circuit Court, Jasper Co., Mo."
Section 897, R.S. 1939 (Sec. 745, Mo. Stat. Ann. 967) provides for service upon unknown parties by publication when the required allegations describing the claims of unknown persons are stated in plaintiff's petition, and "verified by the affidavit of himself or his agent or attorney." The affidavit in this case, although stating it was to be made by the collector, shows on its face that his name was signed thereto by some other person, purporting to sign for him and not for himself, and who was not shown to have himself been sworn or to have made or intended to make the oath. This appearance is corroborated by the testimony of the Deputy Collector. We cannot hold that this is a compliance with this statutory requirement of an affidavit. [See Hargadine v. Van Horn,
[6] Plaintiff relied not only on the ground of legal title (because of void judgment) but stated an equitable ground (of inadequate consideration) for setting aside the sale; and plaintiff offered to do equity. Plaintiff's petition stated: "Plaintiff tenders and offers to pay to defendant all taxes paid by said defendant on said property together with interest at the legal rate from the dates of such payments, as soon as the amount thereof shall be ascertained or as the court may find, adjudge and decree." Therefore, defendant would be entitled to an equitable lien for the subsequent taxes paid. [Lustenberger v. Hutchinson,
The judgment is reversed and the cause remanded. Bradley andDalton, CC., concur.
Addendum
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur. *795