146 Mo. 419 | Mo. | 1898
This is an action in ejectment to recover possession of the northwest quarter of the southwest quarter of section 24, township 26, range 26, in Lawrence county, Missouri. The petition is in common form and the answer a general denial. C. W. Tooker and S. H. Horine, trustee, are the common source of title. It is conceded that plaintiffs have their title, unless the same was divested by a sheriff’s deed under which the defendants claim title, dated February 16, 1894, made in pursuance of a sale under execution on a judgment in an action for delinquent taxes, rendered by the Lawrence county circuit court at the August term thereof, on the thirteenth of
The undisputed facts in the case seem to be, that the tax suit in the circuit court of Lawrence county by petition filed July 5, 1892, was in the ordinary form of petitions in such suits for delinquent taxes, that no fact authorizing publication of notice, as provided in section 2022, Revised Statutes 1889, was alleged in the petition or stated in any affidavit filed in the cause; that summons for Tooker and Horine defendants therein, returnable to the August term, 1892, of said court was issued to the sheriff of Lawrence county: That upon return of that summons at that term, an alias summons was issued to the same county, returnable to the February term, 1893; that the alias summons was returned non est at that term, and the following entry was then made on the judge’s docket: “Pub. in Pierce City Democrat 27;” and the following-order afterwards spread upon the record of the court:
“March 10th, op the 28th day of the February Term, 1892.
“The State of Missouri, ex rel. A. R. Wheat, Collector of the Revenue within and for Lawrence county, Missouri, vs. “S. H. Horine, as Trustee, and C. W. Tooker.
“Now at this day, it appearing to the satisfaction of the court that the above named defendants, S. H. Horine (as trustee) and C. W. Tooker, are nonresidents of the State, so that the ordinary process of law can not be served upon them, it is therefore considered, ordered and adjudged by the court that the defendants be notified by publication that plaintiff has commenced suit against them in this court, the object and general*425 nature of the petition filed ‘in said suit being the enforcement of a lien of the State of Missouri against the southwest quarter of the northwest quarter of section twenty-four, township twenty-six, range twenty-six, for the taxes, interest and costs, for the year 1890, amounting to one dollar and fifty-five cents, and that unless the said defendants be and appear at this court at the next regular term thereof, to be begun and holden at the court house in the city of Mt. Vernon on the 7th day of August, 1893, and on or before the sixth day of said term answer or plead to said cause, the same will be taken as confessed and judgment accordingly. It is further ordered that a copy hereof be published according to law in the Pierce City Democrat, a newspaper published in said county, for four weeks in succession, the last insertion to be at least four weeks before the first dayjof the next term of said court.
“'A true copy. Attest: G-eo. M. Oaky, Clerk.
“James L. Sheets, Plaintiff’s Attorney.”
That said order was duly published and proof of publication thereof made at the August term, 1893, of said court at which the judgment was rendered, and which contains the following recital: “But said defendant comes not, but makes default; and it appearing to the court from an inspection of the record and papers in the case that the defendants herein had been duly notified of this suit, as appears by the return of the sheriff of Lawrence county, and E. P. Moore, publisher of the Pierce City Democrat, that S. H. Horine, trustee, and C. W. Tooker, had been duly notified by advertisement published in the Pierce City Democrat, a newspaper published in Lawrence county, Missouri, for four weeks in succession, the last insertion being at least four weeks before the first day of this court,” etc.
That execution issued on the judgment returnable to the February term, 1894, at which term the land was
It was admitted on trial that the original summons in the back tax suit and alias summons were issued to the sheriff of Lawrence county, Missouri, and that no writ of summons was ever issued to Greene county, Missouri; that neither Horine nor Tooker, defendants in said back tax suit, ever lived in Lawrence county, Missouri, and that said Wheat, collector, had known Tooker four or five years before the bringing of said
It was also admitted that the entries heretofore offered in evidence in said back tax suit were all the entries shown by the records in said cause; that when said Davis bought the land he did so for the joint use of himself, E. P. Moore, Gus Schoen and Joseph French, but that the deed was taken in the name of the said Davis only.
It was also admitted that the twenty-seventh was not the last day of the February term, 1898, of the Lawrence county circuit court, but that the court held two days thereafter, and that there was no entry on the clerk’s minute book of any order of publication in the tax suit. The plaintiff also introduced oral evidence to prove that Tooker and Horine were both residents of Springfield, Greene county, Missouri, at the time the tax proceedings were had, and that the defendant John W. Leake and the said Schoen and French were acquainted with Horine. That Tooker paid the taxes of the year before on this land or tried to pay them to
The case was tried by the court without a jury. The court by its declarations of law in effect holding, first, that the order of the circuit court setting aside the judgment in the tax suit, had no effect upon the title acquired under the sheriff’s deed; second, that although Horine and Tooker were in fact and long had been residents of Greene county, Missouri, at the time the return of non est on the alias summons was made by the sheriff of Lawrence county, and at time the order of publication was made and published in the tax suit, and final judgment therein rendered, and at the time of the execution and sale thereunder, yet such judgment would support such execution and sale and pass the legal title to the purchaser Davis, even though in fact he or some of his associates for whose benefit he bought, may have known that said Horine and Tooker so resided in said county in this State; and in accordance with said declarations, the finding and judgment was for the defendants. Plaintiffs appeal.
The action for the recovery of delinquent taxes, is an action in rem to enforce the State’s lien against the land subjected to the tax, to which the owner is a
The learned judge after citing and reviewing numerous authorities in support of this position, concluded this branch of the case by saying, “Of course, if the order of publication, by reason of the facts aforesaid is to be deemed invalid, then the judgment grounded thereon must share the same fate and fall with it. And the writ of summons and the order of publication, being part of the record, are competent witnesses of that judgment’s invalidity, and by them it can be impeached collaterally,” and “since the judgment thus rendered must be regarded as null, of course the defendant acquired no title in consequence of the sale which occurred under the execution which issued on such judgment,” and it was accordingly so held.
The order of publication in each of these cases, as in the one in hand, was made after a non est return. The Harness case, however, may be distinguished from the other by the fact that in that case, there was an allegation and affidavit of nonresidence, and in the Grusen case as in the ease in hand, there was none. A
There are three sections under our code of civil procedure, authorizing service by publication of notice of the commencement of a suit, sections 2022, 2024 and 2027, Eevised Statutes 1889. With the last section governing publication of notice to “unknown persons” we have nothing to do on this inquiry. With the first we have to do only with that class therein designated as “nonresidents of this State.”
The power of the court to make an order of publication under the provisions of section 2022, is based upon a fact; that fact, however, is not the actual non-residence of the defendant, but the fact that the plaintiff, or other person for him, has alleged in his petition, or at the filing of'the same, or at some time thereafter filed an affidavit stating that part or all of defendants are nonresidents and can not he served, etc. Upon the filing of such a petition and affidavit, the clerk in vacation, or the court, as the case may be, “shall make the order,” are the imperative terms of the statute. Neither has the power to exercise any discretion in the matter. The order goes as a matter of course, without any judicial investigation as to whether the defendants are or are not in fact “nonresidents of the State,” etc., as alleged in the petition or affidavit. The power to make the order rests upon the allegation or affidavit and not upon the fact of nonresidence. The power of the court to make an order of publication under the provisions of section 2024, is also based on a fact, not on a fact to which the attention of the court may be simply called, and upon which it then mtist make the
Now in this case we have no allegation and affidavit of nonresidence upon which the order can rest, and consequently no authority whatever for an order of publication under section 2022, and while we have a non est return upon which an order of publication might have been predicated under section 2024, it appears upon the face of the record that the order of publication was not issued upon the ground provided for it in that section. This appears affirmatively by the recital in the order itself that the authoritative fact for its issuance is that the defendants “are nonresidents” and negatively by the absence of any recital of the fact that the defendant “can not be found” or any reference to the non est return, and by the absence of even a hint