232 Mo. 649 | Mo. | 1911
Defendant was sued as a non-resident in tbe Dent Circuit Court to try and determine title to the northeast quarter of section 25; township 32, range 4, in that county, under old section 650, now Revised Statutes 1909, section 2535; as amended. He appeared and filed answer, claiming title, and pleading tbe ten-year and thirty-year Statute of Limitations. In pleading title bis answer bases it on a sheriff’s sale on a judgment for taxes.
Tbe decree vested title in defendant and plaintiff took nothing by bis suit. On due steps, plaintiff came up by appeal.
The point is sufficiently developed when we state that the first twenty-nine pages of plaintiff’s abstract is built on a plan steadily condemned — that is, by commingling in one heterogeneous aggregation matter of record proper and matter of mere exception, so' that we are put to picking, sorting and choosing one kind of matter from the other, and rearranging it, with no guide but a guess tempered by the hazard of guessing wrong. An abstract made on that bad plan is in contravention of statutes, rules, and the very reason of the thing. Its unhappy results are shown in a long list of cases spread in the books and nothing we can say will add vigor or point to warnings already given, writ large and often. The beaten way is safest.
However, in this case, at page 29 of their abstract, counsel, by way of a rather belated revelation, saw the danger and wrote in a long-hand interpolation — a benediction, maybe, reading: “The preceding pages and the following- page contain a full and complete statement of the bill of exceptions, together with the petition and answer.”
Counsel for defendant complains of the abstract as insufficient and briefs the point, but he also files an abstract of his own in which he exploits certain evidence on the theory the bill of exceptions as abstracted by plaintiff omits it. That additional abstract assumes we already have the residue of the bill of exceptions in plaintiff’s abstract. In this fix, plaintiff files a motion to amend his abstract (not by bringing up new matter, but) by rearranging and suitably earmarking matter already abstracted into (1) record proper and (2) matter of exception preserved in a bill. With that motion, and to that end, he tendered a supplemental abstract. The motion was taken with the case, and
H. . The case lies in a nutshell. The matter threshed out below was a certain tax proceeding and sale thereunder, followed by a deed. If that was effective, the title is in defendant — if not, it is in plaintiff. There were no exceptions saved nor are there is-sues raised here making it necessary to set out plaintiff’s chain of title, nor that through which defendant claims. Hence, we omit deeds constituting links in one or the other. It sufficeth to say that the common source of title was Anthony S. Wells. Plaintiff holds through him by mesne conveyances. Defendant holds through him by said tax deed and by mesne conveyances.
The records shows title at one time in “Anthony S. Wells” by a conveyance to him, eo nomine. At.a certain time thereafter a tax suit was brought in the Dent Circuit Court against “A. S. Wells” for a year’s tax — the petition mentioning no year for which the tax was due. The taxbill on which the suit was founded shows the year 1880. The tax judgment is not in the record. The tax deed recites that the judgment was for the tax of 1880, and that “A. S. Wells” was sued and his title levied on, sold and conveyed.
One of plaintiff’s positions is that because the year was not set forth in the tax petition it was fatally defective (E. S. 1909, sec. 11498), and stated no cause of action. Defendant contends that the taxbill must be read into the petition, and; when that is done, it is well enough. But, in any event (he says), absent the judgment and present the recitals in the sheriff’s deed naming the judgment year as 1880; the defect of the petition is cured.
There is a main contention, which, if decided in
Neither the order of publication in the tax suit nor the judgment appears in the record. Absent both judgment and order, defendant contends there is no proof the tax judgment was rendered on constructive service and without the appearance of Wells. This contention seeks more of the record.
Attending to that, the answer pleads matter without substance or significance except on one theory, and that is that the tax judgment was rendered on constructive service against “A. S. Wells” as a non-resident. Witness the following averments, which being allowed some force, can have no other in a forum of reason, viz.: “Defendant further states that defendant’s title is based upon a tax deed and sale of lands for taxes against one A. S. Wells. That at the said time of the sale for taxes the said A. S. Wells was a non-resident of Missouri and the title to said lands appeared in his name. That said A. S. Wells by such name executed deeds, contracts, signed notes, checks and held himself out to the world in general as A. S. Wells and paid taxes on said lands in the name of A. S. Wells, and was and is well known by the name of A. S. Wells.”
• The petition in the tax suit, put in evidence, has attached an affidavit of the tax attorney that Wells was a non-resident of the State of Missouri. Defendant took the deposition of Wells in the instant case and read it in evidence. Therefrom it appears that he was a resident of the State of Iowa; that he had never been a resident of the State of Missouri; that he usually signed his name “A. S. Wells,” that he answered to either the name of A. S. Wells or Anthony S. Wells;
At the trial the court drew up instructions, and gave them. These instructions filled no such office that error in them became reversible, but it does not follow that they might not indicate the theory upon which the case was tried below. In instruction numbered 1, the court elaborately treated of the use of initials in a name and declares the law to be that if the party had been in the habit of using his initials only in his business transactions and was known by such initials, “then the omission to insert his full name in the petition and order of publication, would not make the judgment void, where the petition and order' of publication gave his correct initials,” etc.
There is another record fact, viz., that at the date of the tax suit Wells was not the owner of the land. He had theretofore conveyed it away, but his grantee did not record his deed until after the tax sale. That fact is not mentioned to show the tax suit was brought against the wrong party as record owner, but to raise an inference against the. probability that a man who had parted with his title would appear personally to defend a tax suit in a distant State under sueh circumstances.
The premises, we think, warrant the conclusion that the tax judgment was on constructive service; that the order of publication followed the petition in using merely the initials of Wells’ given name; that such was the trial theory below, not only of counsel on both sides, but of the court itself.
In Matousek v. Catholic Union, 192 Mo. l. c. 596, it was said relating to a plea of res adjudicata: ". . . It is not always by evidence that a fact may be established. Facts may be admitted. A case may be tried on the theory that a fact is assumed to exist, the legal effect of which alone is questioned. [State ex inf. v. Fasse, 189 Mo. l. c. 537.] ... It is true
So here, no one can read the answer in this case and the record without seeing that the trial proceeded on the admission and assumption there was an order of publication in the tax suit; that the judgment was based on that order; and that'Wells was notified in that order merely by the initials of his Christian name.
In that view of it, the case was wrongly decided; for the tax judgment was void for want of jurisdiction and the tax deed following falls with the judgment.
In Gillingham v. Brown, 187 Mo. 181, the true name of the defendant was Aubrey H. Gillingham. Publication was had against “A. H. Gillingham.” The judgment was held bad for want of jurisdiction. In Spore v. Ozark Land Co., 186 Mo. 656, publication was made against William D. Spore by the name of “W. L. Spore.” The cases were there reviewed and the same conclusion announced. See, also, Burkham v. Manewal, 195 Mo. l. c. 506, et seq.; Turner v. Gregory, 151 Mo. 100; Ohlmann v. Sawmill Co., 222 Mo. 62; Stanton v. Thompson, handed down at this delivery, 231 Mo. 7.
Service of process by publication is in derogation of common law, is a creature of statute, is harsh at best and highly technical; hence must be strictly pursued. Our revenue laws contemplate that tax suits
The judgment should be reversed and the cause remanded with directions to enter a decree for plaintiff. It is so ordered.
