Payne v. Lott

90 Mo. 676 | Mo. | 1886

Norton, C. J. —

It appears from the record in this Case that, in 1858, one John Rucker entered the west half of the southeast quarter, section 29, township 67, range 19, in Putnam county, as shown by the plat book of said county, duly certified to by the register of the land office at Boonville; that in January, 1878, the state, at the relation of the collector of said county, instituted suit against said Rucker in the circuit court of said county, to enforce the lien of the state on said land for delinquent taxes assessed against it, running back to 1867, and up to and including 1876 ; that it is alleged in said petition, which was not sworn to, that said John Rucker was a non-resident of the state; that the clerk of said court, in vacation, issued an order of publication of notice, which was duly published, and upon which, at the March term, 1878, of said court, judgment by default was rendered, under which the land was sold in September, 1878, to defendant, Melvina I. Lott (then Carson), who received a sheriff ’ s deed therefor, and filed it for record on the eleventh of September, 1878. It is this deed which this suit is brought to set aside.

On the trial plaintiff put in evidence a deed from said Rucker, for the land in question, to one John O. Hutchinson, dated April 17, 1858, but not filed for record till the fourth of February, 1881; also a deed from said Hutchinson to plaintiff, dated January 12, 1881, and recorded February 4, 1881. Plaintiff also put in evidence the deposition of said Rucker, who testified that he was born in the state and had always lived in it; that he moved to Andrew county, Missouri, in 1861, where he has ever since resided. Plaintiff also put in evidence the record in the suit of the State v. Rucker, in which, among other things, it is recited as follows: “Now, at this day, to-wit: March 29, 1878, comes the plaintiff, by attorney, but the defendant, although having been notified of the commencement of this action by publication made in this cause, and being three times solemnly called, comes not, nor makes answer in this cause, but makes default,” etc.

Defendants put in evidence the plat book of the lands in Putnam county, duly certified by the register of the United States land office at Boonville, on which the name of John Rucker was written on the plat of the' land in question and date of entry. The trial court rendered judgment for the defendant, from which plaintiff has appealed, and the first ground relied upon to sustain the appeal is, that Rucker, against whom the suit to enforce the lien for taxes was entered, was not the owner of the land at the time the suit was instituted.

It was held in the case of Vance v. Corrigan, 78 Mo. 94, that the requirement of the law, that a suit to enforce a lien on land for taxes must be brought against the owner thereof, was met and fulfilled by bringing the suit against the person who appeared from the record of deeds to be the owner, in the absence of notice of the fact that such person was not the true owner, but had parted with his title by conveying it to another. This case has been followed in the cases of State ex ret. v. Sack, 79 Mo. 661; Watt v. Donnell, 80 Mo. 195; Cowell v. Gray, 85 Mo. 169. It is further held in the case of Vance v. Corrigan, supra, that a purchaser under a judgment rendered in a suit brought, in the absence of notice or knowledge to the contrary, against the person appearing from the registry of deeds to be the owner, would be protected in his purchase against the holder of an unrecorded deed from such apparent owner.

It is, however, contended by counsel that the case before us does not fall within the principle announced in the above cited cases, inasmuch as the apparent ownership of Rucker was not made to appear from the registry of deeds in Putnam county, but from the plat book of the lands of said county on file in the county clerk’s ■office, duly certified to by the register of the United States land office. In the case of Wilhite v. Barr, 67 Mo. 286, it is held that such a plat book so certified and on file in the county clerk’s office was receivable in an ejectment suit to show title in plaintiff. If receivable in evidence for the purpose of establishing ownership, we are unable to perceive why a collector, charged with the duty of suing the owner of land for delinquent taxes thereon, may not resort to such plat book as well as to the registry of deeds for the purpose of ascertaining who is the apparent owner of such land, especially so in view of Revised Statutes, sections 6697, 6703, inclusive, under which it is made the duty of the county courts to procure such plat books and keep them on file in the respective county clerks’ offices, in order that resort may be had to them in ascertaining which lands are subject to taxation.

The next point made is, that although it was alleged in the petition in the suit against Rucker that he was a non-resident of the state, and although it appears that on filing such petition the clerk in vacation made an order of publication of notice which was duly published and publication proved, that the court did not thereby acquire jurisdiction over said Rucker, as it appeared de hors the record that he was in fact a resident of the state at the time suit was brought, and living in Andrew county, and always had been a resident of the state. It is provided by section 6837, of the revenue law, as follows : “All notices and process in suits under this chapter 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. In all suits under this chapter the general laws of the state as to practice and proceedings in civil cases shall apply, so far as applicable, and not contrary to this chapter.” And it is provided by Revised Statutes, section 3494, as follows: “In suits * * * for the enforcement of mechanic’s liens, and all other liens against either real or personal property * * * if the plaintiff, or other person for him, shall allege in his petition, -or file an affidavit, stating that part or all of the defendants are non-residents of the state, * * * so that the ordinary process of the law cannot be served upon them, the court in which said suit is brought, or clerk, in vacation, shall make an order, directed to the nonresidents,” etc.

We think it clear under these statutory provisions that the allegation contained in the petition, that Rucker was a non-resident of the state, authorized the clerk to issue an order of publication, and that when issued, published, and proved, the court had jurisdiction to proceed to judgment in the case, and, having such jurisdiction, that the sale made under it to the defendant is valid and binding as to Rucker and his grantees, defendant having purchased at said sale without notice of the fact, either that Rucker was a resident of the state, or that plaintiff had acquired by mesne conveyance the title of Rucker, previous to the institution of the tax suit. Hahn v. Kelly, 34 Cal. 391; Ogden v. Walters, 12 Kas. 282; Callen v. Ellison, 13 Ohio St. 446.

Judgment affirmed,

all concurring except Brace, J., absent.