264 Mo. 216 | Mo. | 1915
Action to quiet title to tbe northwest quarter of section 9, township 25, range 15, in Douglass county, Missouri. Tbe petition is in tbe usual form under tbe statute, with tbe exception that in it tbe plaintiff adds: ‘£ and upon the finding that tbe fee title is in tbe plaintiff, that tbe court set aside and for naught bold tbe following deeds of conveyance unr der which tbe defendant claims, to-wit: (Here follows, a description of a number of deeds in defendant’s chain of title);
Tbe answer is likewise a little out of tbe usual line under tbe statute, and reads:
££Defendant for amended answer to plaintiff’s petition denies each and every allegation therein contained, and for further answer to plaintiff’s petition says that one link of tbe chain of title through which be claims tbe lands in said petition of plaintiff described, to-wit, tbe northwest quarter of section 9.,
“Therefore the defendant prays the court to try, ascertain and determine the right, title and interest of plaintiff and defendant, respectively, in and to the lands herein described, and especially to hear and determine all matters and things, erasures, changes,.
Reply, a general denial.
■ It was admitted that the common source of title was Francis M. Worrell.'
Plaintiff introduced a warranty deed from Francis M. Worrell to Harrison Williams, of date February 15, 1892, but recorded October 19, 1910. In the meantime, i. e., between the date of the deed and the date of the record, two tax suits had been brought and the lands sold or attempted to have been sold, under judgment in these cases.
Defendant undertakes to dereign his title through one or both of these tax proceedings. The fight thus centered below, and must so center here. The contentions, pro and con, as to the validity of these proceedings will be noted in the opinion. The lands appear to be wild and uncultivated lands. This sufficiently states the case.
I. It is suggested in the brief for respondent, that the judgment should be affirmed because the appellant has not brought to this court in his abstract all the evidence. This, upon the theory that the action is one in equity. The abstract of record is a little peculiar, in that it sets out what purports to be the substance of the evidence in places, and then in other places sets out the full questions and answers. We have gone over the record thoroughly, and conclude that the abstract is sufficient, even under our rule in equity cases. There is no counter abstract of record, nor is it pointed out what evidence has been left out. This contention is ruled against respondent.
II. A vital point in defendant’s case is the tax proceeding which terminated in a default judgment at the March term of the Douglas Circuit Court for the year 1894. It will be noted that it is in this proceeding that defendant charges that the records have been changed, and asks the circuit court to so find. It is charged by the defendant that the number of the range had been changed both in the petition, and in the tax bill, and further that the date of the service of the summons upon the defendant in the tax suit had been changed. The trial court found for the defendant as to the changes in the tax hill and the petition, and found that it had been changed after entry of judgment. By our order the original files in this tax case have been forwarded to this court, and we have examined the same. As to these findings aforesaid we are not disposed to criticize the ruling of the trial court. There was sufficient evidence to justify such findings. On the question of the alteration of the date of the return the trial judgment says:
“The sheriff’s return on the summons in said suit has been altered and changed till it is impossible to determine what was the correct date of service, but the court finds from the evidence that the service in said suit was made in due time, and the court finds that the publisher’s affidavit to the sheriff’s sale notice under the execution has been changed and erased since the rendition of said judgment, but that said notice was duly published as the law directs and for the proper number of times.”
To go into the details, it should be said that these files in the tax proceeding show: (1) A tax bill made out by the proper officer in which it is stated that the owner’s name was £ £ Abe Manning; ” (2) a petition upon this tax bill, in which the defendant is named as £ £ Francis M. Worrel;’’ (3) a summons directed to “Francis
It will be noted that in places the name “Worrel” is sometimes used with one “1” and at others with two “l’s”. This we take it is not at all vital. It should be borne in mind that respondent placed all these records and papers in evidence. If they impeach the judgment of the court in the tax proceeding, he has furnished the impeaching evidence. In these files it appears that the judgment ran.against Francis M. Worrel. The execution so recites the judgment There was no answer in the files, and the tax judgment was evidently one by default. It is so treated throughout the case.
The first suggestion by this record is, whether or not the court had jurisdiction over Francis M. Worrel in this tax proceeding. The data as to the tax preceding we have taken from the original files therein, and whilst they differ from statements made in the briefs, they are correct. The returns of the sheriff upon the summons is made with pencil instead of pen, yet it is clear that there has been no change therein, unless it might be as to the date of the service, and for the question we now have in mind, that matter'is immaterial.
It is a rule of long standing in this court that the recitation in a tax judgment of the fact that the defendant has been duly served with process may be
“If there is any conflict between the recitals in the judgment, as to the terms of the order, and the order itself, the latter must control, for a recital of the order must yield to the order itself. [Crow v. Meyersieck, 88 Mo. 411.] ”
In Williams v. Monroe, 125 Mo. l. c. 584, Gantt, P. J., thus summarizes the rule:
“But this doctrine, when rightly understood, does not in the least shake the authority of those decisions in this State which hold that, although the record of a court of general jurisdiction recites that defendant have been duly served with process, it is competent to overthrow such recital by showing by other portions of the record of equal dignity, and importing equal verity, that such recital of service is not true. [Cloud v. Pierce City, 86 Mo. 357; Laney v. Garbee, 105 Mo. 355; Milner v. Shipley, 94 Mo. 106; Bell v. Brinkmann, 123 Mo. 270; 1 Freeman on Judgments (4 Ed.), sec. 125; Higgins v. Beckwith, 102 Mo. 456.]”
In the early case of Cloud v. Inhabitants of Pierce City, 86 Mo. l. c. 366, this question was fully threshed out by Sherwood, J., in an opinion concurred in by the full court. In that case the judgment as in this case recited personal service on the defendant. The court there said:
To like effect is Laney v. Garbee, 105 Mo. l. c. 358 et seq., and Higgins v. Beckwith, 102 Mo. 456.
The return of the sheriff in this tax case fails to show that the court ever acquired any jurisdiction over Francis M. Worrel, the defendant therein. It
III. The foregoing determines the case against defendant, because, if the title has never passed from Francis M. Worrel, except by the deed to plaintiff, the defendant’s title fails. If the judgment was void for want of service the record title of Francis M. Worrel failed to pass in the tax case. Such judgment is void for want of service. Had we a record where John Jones was sued and Jim Smith was served, it would not be a stronger case than the one at bar. Smith having no interest in the property could well say, “I will make default, because it will not hurt me, ’ ’ but if he does, it does not bind Jones, who was never served with process.
But there is another fatal link in defendant’s case. The notice of sale is bad. This notice of sale recites a judgment against Frances M. Worrel, and not Frcmcis M. Worrel. We do not think in a matter of this kind that the doctrine of idem sonans can rescue the case for defendant. Here we have two words absolutely independent in meaning, one indicating the feminine gender, and the other the masculine gender. A judgment against Frances M. Worrel or a notice to the same, is a judgment and notice as to a woman and not a man. We hardly think the doctrine of idem sonaA%s can or should be invoked when two very similar words are used to express a difference of sex, and to thus pecu
There are one or two other errors in the case that might demand consideration, but in the light of the foregoing we do not deem it necessary to go further. It is clear that the tax deed relied upon by defendant, above discussed, is void, and the judgment nisi is wrong. Judgment should have gone for the plaintiff. Let the judgment be reversed and the cause remanded, with directions to enter judgment for plaintiff in accordance with his petition.