260 Mo. 708 | Mo. | 1914
— This is a case which embraces a consolidated cross-appeal in an action originally brought in Stoddard county to determine interest to certain land¡§ in said county. It has been here before and is reported under the style of Miller v. Keaton, 236 Mo. 694. It is likewise practically in all respects a companion. case to Keaton v. Jorndt, heretofore decided and reported in 220 Mo. 117. The latter case of Keaton v. Jorndt, on a second appeal, is again here and an opinion has been rendered therein at this sitting. [259 Mo. 179.] To the cases of Miller v. Keaton, 236 Mo. 694, and Keaton v. Jorndt, 220 Mo. 117, and to the opinion in the latter case rendered at this term, reference for the facts as well as for the major part of the holding is made; all of them being companion cases and all of them resting upon the same common source of title, the same tax suit and the identical will discussed in the opinion at this term in Keaton v. Jorndt.
When the instant case was here before it was reversed and remanded with directions (Miller v. Keaton, 236 Mo. l. c. 711), which directions are as follows:
“We have no satisfactory basis for a final judgment upon the nature and extent of the interests of the parties. We reverse the judgment and remand the cause, with directions to the circuit court to enter a judgment in favor of plaintiff, vesting in him the title to whatever interest Carrie E. Thurber had in the lands acquired under the sheriff’s deed, and also vesting in him the title to the interest of Katie A.*713 Vigar, if the evidence shows that in the order of publication her true name is correctly written as Katie A.- Vigar; such judgment to ascertain and declare the nature and extent of the title so acquired by plaintiff. We further direct the circuit court by its judgment to ascertain and declare, upon proper proof, whether the defendant has acquired any interest in said lands, and if so, the extent and nature thereof.”
In accordance with the mandate of this court, which followed the direction of the clause in the opinion above quoted, the learned judge of the circuit court of Butler county, to which court the instant case was removed from Stoddard county by change of venue, proceeded to hear and determine the same in accordance with the directions of this court. He found that the order of publication recited the name of Katie A. Viger as Kitie A. Vigar and that the interest of said Katie did not pass to plaintiff. He further found that Carrie E. Thurber had at and prior to the tax sale a life estate in the whole of the land, and following our opinion in Miller v. Keaton, supra, rendered judgment for plaintiff therefor and for defendant for the remainder in fee, subject to the life estate therein of the said Carrie. From this judgment both plaintiff and defendant have appealed and are here upon cross-appeals, which have been consolidated for the purpose of this hearing. It may be said in passing that since this case has been submitted, plaintiff, J. N. Miller, has departed this life testate. His devisees have been properly made parties herein in his stead, but no occasion is seen for interfering with the style of the case and thus destroying its identity with matters heretofore adjudicated.
Wé have disposed of all of the contentions made by defendant Keaton touching the question of whether the parties to this action are concluded by the former decision herein.. We have also considered the effect of the tax sale in 1898, prior to the election on the
“Now at this day comes the plaintiff herein by his attorney Ralph 'Wammack and files his petition and*715 affidavit, alleging, among other things, that defendants are not residents of the State of Missouri.
“Whereupon, it is ordered by the clerk in vacation, that said defendants be notified by publication, that plaintiff has commenced a suit against them in this court, the object and general nature of which is to enforce the lien of the State of Missouri, at the relation and to the use of A. L. Harty, collector, of the revenue of Stoddard county, for taxes due and remaining unpaid for the years 1894 and 1895 upon the following described real estate, to-wit:
“The southwest quarter and the west half of the northwest quarter and the northwest quarter of the southeast quarter and the west half of the southwest quarter of the southeast quarter of section 4, township 23, range 12, east, 300 acres, situated in Stoddard county, Missouri.
“And that unless said defendants shall be and appear at this court, at the next term thereof, to be begun and holden at the courthouse in the city of Bloomfield in said county on the 13th day of September, next, and on or before the 3d day of said term, if the term shall so long continue — and if not, then on or before the last day of said term — answer or plead to the petition in said cause, the same will be taken as confessed and judgment will be rendered accordingly.
“And it is further ordered that a copy hereof be published according to law, in the Bloomfield Vindicator, a newspaper published in said county of Stoddard, for four weeks successively, published at least once a week, the last insertion to be at least fifteen days before the first day of said next September term of this court.
“Witness my hand and seal of the circuit court of Stoddard county, this 28th day of June, 1897.
“(Seal) M. S. Phelan, Circuit Clerk.”
But be this as may be, it is one question to Ascertain whether in the order of publication as made the name of Katie A. Viger was set out as Kitie A. Vigar, and an entirely different one to decide as a matter of law the question of the sufficiency of the order of publication to constitute such constructive notice as to confer jurisdiction on the trial court to hear and determine the original tax suit. The latter
We have disposed, in the companion case above referred to and decided at this term, of the question of the amount of interest held by Carrie E. Thurber when the land was sold for taxes. The judgment nisi accords with our conclusions. The former opinion disposed of the question as to the taker of that interest. It therefore results that this case should be affirmed. Let this be done.