Williams v. Hudson, 93 Mo. 524

Williams v. Hudson

93 Mo. 524 | Mo. | 1887

Black, J.

This was a suit in equity to remove a cloud from the plaintiffs’ title to the described premises.

The evidenceMiscloses the following facts : On the second of October, 1871, 'John F. O’Brien, being the owner of the property in question, conveyed the same to Luther Babcock in trust to secure a note of two thousand dollars, payable to Alexis O. Bougher, and two notes of four hundred dollars each, payable to John Crapster. John F. O’Brien died testate,, and John O’Brien and Michael O’Brien are the devisees of the property. Thereafter, and in May, 1881, a suit was commenced in the St. Louis circuit court, in the name of the state at the relation of' the collector, against the above-named devisees of John F. O’Brien, the above-named beneficiaries in the deed of trust, and the trustee, to foreclose the lien of the state for taxes on the property for the years 1869 to 1879, both inclusive. Judgment was rendered on the twenty-second of March,*1882, and, by virtue of an execution issued thereon, the sheriff sold the property to Tanner in June, 1882, who conveyed the same to one of the defendants. In this tax suit, Babcock, the trustee, was personally served with summons, the devisees under the will of John F. O’Brien, and the beneficiaries in the deed of trust were notified by publication, but both of the beneficiaries were dead when the *528suit ,was commenced. Afterwards, and in July, 1882, Parish, as substituted trustee in the deed of trust, sold the property to the plaintiffs, who are now in possession of the premises. It is the tax judgment and deed made thereunder which plaintiffs say is a cloud upon their title, and which they ask to have removed.

As the representatives of Bougher and Crapster were not made defendants in the tax suit, and as Bougher and Crapster were dead when that suit was commenced, the judgment, as to them and their representatives, is void. Had they died after suit commenced and service of process upon them, another question would be presented; but a suit commenced and prosecuted against a dead man gives the court no authority to enter judgment against him; the judgment is void as to him. Bollinger v. Chouteau, 20 Mo. 89. The trustee, it is true, was a party to the suit, but we have held that, in foreclosing these tax liens, it is not sufficient to make the trustee alone a defendant. The beneficiaries in the deed of trust, the persons holding and owning the debt thereby secured, must be made defendants. If this is not done, their rights are not affected by the judgment foreclosing the tax lien. Corrigan v. Bell, 73 Mo. 53; Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 474.

It is, therefore, clear that the deed of trust was not foreclosed by the judgment in the tax suit. But because the judgment is void as to the beneficiaries in the deed of trust, void as to two of the defendants, it does not follow that it is void as to the others. Where there was a money judgment against two persons, one of whom was served, and the other was not, it was held, in a collateral proceeding, that the judgment was erroneous, but not void, as to the defendant served. Lenox v. Clarke, 52 Mo. 115. If that is true in the case of a money judgment, with much stronger reason should it-be true when the judgment is not, and does not profess *529to be, a personal one, but simply a judgment against tire property. So, in this case, the judgment as to the devisees of O’Brien is not void, nor is it voidable, in a proceeding like this, simply because void as to the beneficiaries in the deed of trust.

The judgment is, then, valid as to the devisees who were the owners of the property. Under the authorities before cited, and the case of Allen v. McCabe, ante, p. 138, the purchaser at the execution sale acquired the interest of the devisees, and that, too, by the enforcement of the tax liens, which, whether prior in point of time or not, are superior to the lien of the deed of trust. The purchaser at the execution sale and his vendee stand in the position of one having purchased under a foreclosure of a senior mortgage, the junior mortgagee not having been made a party to the suit. The plaintiffs in this case being the purchasers under the unforeclosed deed of trust, may redeem from the tax sale, but that sale is not void, and will not be set aside, for no offer to redeem is made in this suit.

It is further insisted that the judgment is void as to all the defendants, because of the insufficiency of the order of publication. The suit, as before stated, was for the delinquent taxes for the years 1869 to 1879, both'inclusive, the amount due being alleged, in the petition, to be S767.65; and it was for these years, and this amount, with interest and costs, that judgment was rendered. The order of publication'notified the defendants that the object of the suit was “to enforce the lien of the state of Missouri for the delinquent taxes of the years 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877, and 1878, amounting, in the aggregate, to the sum of seven hundred and sixty-seven dollars and sixty-five and five-tenths cents, upon the following-described real estate,” and then described the real estate as set forth in the petition. The omission of the year 1879 does not invalidate *530the notice. The statute requires the notice to state briefly the object and general nature of the petition. Here the amount sued for is correctly stated, the premises are described, and the omission of the one year can make no difference in this suit. Freeman v. Thompson, 53 Mo. 189. What might have been the conclusion had that judgment been brought here by appeal, or writ of error, we do not stop to inquire.

The judgment in this case is reversed, and the suit is dismissed for want of equity.

All concur.