Harness v. Cravens

28 S.W. 971, 126 Mo. 233, 1894 Mo. LEXIS 354

• Court: Supreme Court of Missouri
• Decided: December 22, 1894
• Status: Published

Opinion

Sherwood, J.

— 1. As appears from the record in this cause, .the plaintiff herein, the defendant in the back tax suit, was proceeded against as a nonresident of the state. The petition alleged his nonresidence, and so did the accompanying affidavit. But, instead of taking out an order of publication before the clerk in vacation as authorized by section 2022, Revised Statutes, 1889, a summons was issued to Harness returnable to tbe next November term. That summons was returned non est, October 25, 1889. This non est return was followed by an order of publication based on that return, and then judgment by-default took place at the May term, 1891, followed by a sale and sheriff’s deed to defendant Cravens, September 24, 1891.

As will be seen by sections 2013 and 2023, Revised Statutes, 1889, a summons in such cases is only authorized to issue against a resident defendant. And it is provided in section 2024 when that summons has been properly issued and return of non est made thereon, then the court, being first satisfied that the defendant can not be found, makes an order of publication as required in section 2022. Of course.such an order of publication made in the circumstances mentioned would recite, among other things, the issuance of the summons, and the fact that the defendant could not be found, etc.; because the court could not make this class of publication unless “in conjunction tvith the return,” and it must be “founded thereon.” State ex rel v. Finn, 87 Mo. 310.

So that we have here presented a defendant sued as a nonresident, summons issued against him as a resident, and publication issued against him as a resident who could not be found. In short, the order of publication was a clear departure from the allegations of the petition and affidavit. The issuance of the summons was, therefore, unwarranted by the statute, and the publication, being based thereon, necessarily partook of the writ’s inceptional infirmity, and this is so, because, in the language of Mr. Justice Field, “the court is not authorized to exert its power in that way.” Windsor v. McVeigh, 93 U. S. 283.

This doctrine is abundantly established, that, where a mode of securing jurisdiction differing from that of the common law is prescribed by statute, nothing less than a rigid and exact compliance with the statute is an indispensable requisite to obtaining jurisdiction. 1 Elliott’s Gren. Prac., sec.-247. Thus in Granger v. Judge, 44 Mich. 384, Campbell, J., says:

“Where cases and proceedings are not according to the usual course, and are special in their character, they are held void on slighter grounds than regular suits, because the courts have not the same power over their records to correct them. So, where there has been no personal sei’vice within the jurisdiction, the doctrine prevails that proceedings not conforming to the statutes are void. But this is on the ground that there has been' no service whatever, and the party, therefore, has not been notified, in any proper way, of anything. The purpose of the statutory methods is to furnish means from which notice may possibly or probably be obtained. But, as a court acting outside of its jurisdiction is not recognized as entitled to obedience, the special statutory methods stand entirely on their own regularity, and, if not regular, can not be said to have been conducted under the statutes. The distinction is obvious and is not imaginary.”

In a case which arose in Alabama, Beickell, C. J., observes: “The statute not only defines the cases in which the court may take jurisdiction of nonresident or absent defendants, but it appoints and orders the mode of proceeding against them, and declares the effect of the decree rendered, if they do not appear and defend. The jurisdiction and authority, like all jurisdiction and authority derived from, and dependent upon statute, must be taken and accepted with all the limitations and restrictions the statute creating it may impose. These restrictions and limitations the courts are bound to observe; they can not be dispensed with, however much they may seem to embarass, or however unnecessary they may seem to be in the administration of justice in particular cases. The statute is in derogation of the common law, is an essential departure from the forms and modes a court of equity pursues ordinarily, and must be strictly construed. Proceedings under it must be closely watched, or it may become an instrument for the infliction of irreparable wrongs upon defendants to whom notice is imputed by construction.” Sayre v. Land Co., 73 Ala. 85.

On this point, Wade says: “As this manner of serving process depends for its validity more upon its strict conformity to the statute by which it is authorized than upon any inherent probability of its conveying intelligence of the impending suit to the party whose rights are to be affected, the fact that it has actually come to the knowledge of defendant can not be shown to supply any material deviation in the publication from what the statute prescribes. The statute, being in derogation of common law, is always strictly construed.” Law of Notice [2 Ed.] sec. 1030.

This is the well settled doctrine of this court, as shown in numerous instances. Thus in Stewart v. Stringer, 41 Mo. 400, it was ruled that where the statute provides for constructive service of process, the terms and conditions prescribed for such service must be strictly complied with.

A striking exemplification of this principle is afforded by Schell v. Leland, 45 Mo. 289. There, the statute, 2 Wagner’s Stat., p. 1008, sec. 13, was the same as section 2022, supra. There, the plaintiff, seeking to enforce a mechanic’s lien, filed his petition and had summons issued in the ordinary way, which was returned non est. Thereupon he. made affidavit before the clerk in vacation, of the defendant’s non-residency, who, on such affidavit, issued an order of publication which was followed by a judgment. Speaking of this proceeding and of its insufficiency, Wagnee, J., observed: “The order can only be made by strictly complying with the statute; for, in all cases where constructive notice is substituted for actual notice, strict compliance is required. The section contemplates and directs that the facts which authorize the publication shall be either stated in the petition, or an affidavit embodying them shall be filed at the commencement of the suit. This was not done in this case, and, therefore, no order was allowable in vacation under the foregoing section. The fifteenth section of the same act enacts that when, in any of the cases contained in the thirteenth section, summons shall be issued against any defendant, and the sheriff to whom it is directed shall make return that the defendant or defendants can not be found, the court, being first satisfied that process can not be served, shall make an order as required in the thirteenth section. But this section gives no countenance to the proceeding in the case at bar. It does not authorize an order of publication in vacation at all, but intends that it shall be made by the court at the regular return term. I conclude, therefore, that the publication was a nullity.”

It will be noticed that the principal difference between the case just instanced and the one at bar, is that there the summons was issued first, returned non est and followed by the affidavit and publication, while here, the affidavit was made first, followed by the unauthorized issuance of the summons, return thereon, etc.

In Quigley v. Bank, 80 Mo. 289, an order of publication was held invalid because the affidavit against unknown parties, under the provisions of section 3499, now section 2027, was sworn to by the attorney for plaintiff, instead of by the plaintiff himself, that section requiring that the plaintiff should make the oath, therein differing from section 2022, where the oath may be made by the “plaintiff or some person for him,” which difference was in that case pointed out.

So in State ex rel. v. Staley, 76 Mo. 158, where the petition did not set forth the interests of the unknown parties, nor did the order of publication do so, as required by section 2027, it was ruled that, inconsequence, no jurisdiction was acquired over such unknown parties.

In Charles v. Morrow, 99 Mo. 638, a similar ruling was made in similar circumstances on the same section of the statute last aforesaid, and the principle was there reiterated that: “In all cases where constructive or substituted service is had in lieu of that which is personal, there must be a strict compliance with statutory provisions and conditions.”

The more recent case of Wilson v. Railroad, 108 Mo. 588, confirms the views on this subject heretofore expressed in other cases: “Mere notice of service, not according to law, brings no one into court, nor does mere knowledge on the part of the party notified of the pending proceedings have any more valid effect. Potwine’s Appeal, 31 Conn. 381; Smith, Merc. Law, 322.”

"Wherever proceedings are intended to result in an adjudication, and such proceedings differ from the course of the common law, a strict compliance with all material directions of the statute is essential in order to impart validity to the judgment. 1 Ereem. on Judgments [4 Ed.], sec. 127.

“The judgment is based on the service as much as subject-matter. The petition simply says: I have a cause of action against the defendant. The law says: Notify the defendant of the proceedings and the court will hear you. Hence the notice must be given under the forms of law. Where it provides a form, or gives direction as to the manner of service by publication, the statute must be complied with strictly; the direction is mandatory.” Brown on Jurisdiction, sec. 41.

It can not be doubted that the lower court would have been justified in disregarding the issuance and return of the summons, and in proceeding to order publication on the allegation of nonresidency; this it did not do; its whole action was based on the writ and its return, which course was wholly unsanctioned by the statute. On the contrary, right in the teeth of the allegations of nonresidency contained both in the petition and affidavit, the trial court made an order of publication adapted alone to the case of a resident who can not be found.

It will not do to say that the unauthorized order of publication would be just as likely to apprise the then defendant of thé suit against him as if he had been proceeded against according to the specific method prescribed by law, because, if this were all that is required, then a printed circular or letter sent out by the clerk would answer the end and accomplish the purpose just as well. The test is was the method used in the given instance .the one prescribed by the statute¶ If the answer is in the negative, that answer, without more, condemns the method employed, and announces its nullity. Whether that method actually notified the party, is of no importance whatever. . The end of the law has been attained when, and only when, its forms have been observed. Wade on the Law of Notice, and Brown on Jurisdiction, supra.

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. Laney v. Garbee, 105 Mo. 355, and cases cited; Russell v. Grant, 122 Mo. 161.

Since the judgmentthus 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. 1 Freem. on Judgments, section 117. On this ground alone, the decree should be affirmed.

2. Section 7679, Revised Statutes, 1889, makes it the duty of the county clerk to place in a book to be called the “back tax book” a correct list in numerical order of all tracts of land on which back taxes shall be due in such county, setting forth opposite each tract of land the name of the owner if known, and if not known, then to whom-the same was last assessed, the description thereof, the year or years for which such tract is delinquent, etc., etc. Section 7681 makes it the duty of the collector when any suit shall have been commenced against any tract of land on said back tax book, to note opposite such tract such fact, also against whom such suit was commenced. No such duties as these were performed in the case at bar. As Gibson was elected in 1890 and took office in March, 1891, and as Gracy was his predecessor in office, it must have been the fault of the latter that the fact of the tax suit being begun at his instance in September, 1889, was not entered opposite the tract now in litigation.

One evident object had in view by the sections cited, is disclosed by section 7606, which makes it the duty of the collector to furnish all nonresident taxpayers (that is, those who live out of the county), on demand, a statement of the amount of taxes against any tract of land, etc., and send such statement by mail to any person applying to him by letter for the same; and if no taxes are due on any such tracts, he shall answer such letters of inquiry, stating the fact.

In the present instance the back tax book in the custody of Gibson the collector, was for the year 1890; that book was entitled, and properly entitled: “Consolidated back tax book for 1890 and prior years,” and it was the duty of Gibson to collect the taxes due in that book and to furnish all information in regard to taxes due or not due on land described in that book. And the fact that the collector, as here, volunteers to make a statement out of kindness does not at all diminish the legal force or probative efficacy of such voluntary statement.

The object of the law seems to be very plain; it is to furnish a source of reliable information to the inquiring taxpayer; so that when he receives a statement from the collector that such an amount is due on a tract of land, or that none at all is due, he can rely with all confidence on such statement, and when he pays the amount said by the collector to be due, he can set his mind at rest, seek no further, and be under the protection of the law. If this is not the meaning of the statute then it operates as a snare and pitfall for the unwary. In short, the calling on the collector for the amount due for the taxes on certain land and an offer to pay the same should be regarded as a tender, and if the amount demanded by the collector is paid, this should be regarded as a discharge of the tax lien. This is true of a tender when made in regard to a mortgage debt, even after the day fixed for payment, just as much as payment is, and in the same way that a tender at common law made upon the day named in the condition for payment has this effect. This is true in this state. Thornton v. Bank, 71 Mo. 22. This also is the rule in New York and Michigan. 1 Jones on Mortgages [4 Ed.], sec. 893.

No difference is perceived between the lien of a mortgage debt and the lien of a tax debt, even if the latter be clothed with the formality of a judgment, because a judgment lien may be discharged by the acceptance of a tender. 1 Black on Judgments, sec. 477; People ex rel. v. Beebe, 1 Barb. 379. Here the tender was both made and accepted, as well as the amount claimed to be due paid. The collector had as full authority to receive payment of judgment taxes as any other sort, and to enter satisfaction thereof. In fact he did so as to a forty acre tract not in dispute, as to which judgment had been rendered. This being the case, the judgment for taxes against the land in controversy must be regarded as occupying no higher footing, so far as discharging its lien is concerned, than any other tax lien.

In regard to ordinary tax liens, it has been ruled that, if the proper officer, authorized to do so, give a statement or certificate that there are no back taxes due, the purchaser applying for it is protected although the officer has erred. In such case the tax books not showing any tax to be due, the lien of delinquent •taxes then existing, but not brought forward, could not be asserted against such purchaser, who took the land discharged of such lien. Jiska v. Ringgold Co., 57 Iowa, 630.

In Pennsylvania, this case arose: The owner of land went to the proper office, to pay his taxes, and a list was made out for him, from which, by mistake, a road tax was omitted; he paid all the list called for, and it was held, in an action of ejectment, that, for all the purposes of a sale, this was equivalent to full payment; that the statement and receipt in that case, their correctness not being assailed, were clear evidence that the owner asked the officer for the taxes due by him, and paid all that was demanded, and that after this was done, the owner was not bound to take notice of subsequent steps to a sale, and the sale was without jurisdiction. And that a tona fide attempt to pay the taxes, frustrated by the fault of the officer, stands as the equivalent of actual payment. Breisch v. Coxe, 81 Pa. St. 336.

In that case, Agnew, C. J., delivered the opinion of the court, remarking: “It must be conceded that the payment of taxes is a duty, and a failure to perform it is the fault of the owner. But payment is one thing, and the steps leading to it are another. For the latter, the owner is not responsible. He can not assess himself, or know what is charged against him. He must await the action of the agents of the law. He can not pay until he is informed of what he is to pay. To perform the duty of payment he must apply to the treasurer for the taxes charged against his land. If this officer fail to give him the information on demand, on what -just principle shall it be said he has not performed his duty? It is said, there are the tax books open to inspection, let him search them. But this is neither his business nor his duty. As was said in Dietrich v. Mason, 7 P. F. Smith, 40, the treasurer is the legal custodian of the books and entries of the taxes necessary to show the sum to be tendered. This information it is his duty to give, and he can not lay the books before the owner, and compel him to search for himself. The knowledge of the latter may be inadequate to find what he needs. If, then, the owner pays all the taxes stated by the treasurer, he has done his whole duty. He can do no more. Baird v. Cahoon, 5 W. & S. 540; Laird v. Hiester, 12 Harris, 464. His claim to be protected against a sale of his land for taxes he stood ready to pay, but which the proper officer has failed to present to him on demand, is quite as great as that of the purchaser to be protected against the act of the same officer in making á sale for taxes actually paid. Indeed, his equity is greater, for he has a prior title to the land, which has been wrongfully exposed to sale for an unknown trifle of tax. He would lose a valuable property, sold for no real equivalent, while the purchaser pays but a trifle of tax and costs, which, in most instances, he can have returned to him, if the sale be void. In point of want of knowledge they stand upon a par; the owner’s ignorance of the tax being the equivalent of the purchaser’s ignorance of the attempt to pay it. As a matter of fact, too, purchases at tax sales are known to be full of risk, and rarely more than a tithe of the value of the land is bid. It is but just, then, that a Iona fide attempt to pay all the taxes, frustrated by the fault of the treasurer, should stand as the equivalent of an actual payment. It is an almost universal rule, which substitutes a tender for performance, when the tender is frustrated by the act of the party entitled to performance.” See, also, Cooley on Taxation [2 Ed.], 450, and cases cited.

If ever there was a case to which the observations of Chief Justice Agnew should apply in all their force, it is this one. Here an aged and unlettered man who had long before passed the seventy-year milestone of life, applies to the collector from time to time to pay his taxes. He is'given information on which he acts; he pays all demands made of him. Finally, as to other and subsequent years, he receives a statement, said by the collector to embrace all the taxes due on his land. Through a friend he pays all demanded of him, and yet, in fourteen days thereafter, his land was sold on a judgment for taxes of which judgment aud taxes he was wholly ignorant.

Others may say it, but I for one will never say that this old man is to be deprived of his land through the neglects and blunders of the state’s chosen agents. Others are bound by the acts and blunders of their agents, and ■ I know of neither rule nor reason which prevents the state from being likewise bound in similar circumstances. I think, therefore, that the honest endeavors of this ignorant old man to pay his taxes should stand as the equivalent of payment and a tender of payment, and that it should have the effect of discharging the tax lien and prevent the tax sale from having any efficacy. Of course the discharge of the lien would not remove the tax debt; that would still remain and could be recovered.

The latter half of section 7646, enacted in 1887, evidently contemplates that land sold when taxes have been paid can be recovered, or else its provisions are without meaning.

3. Numerous irregularities- occurred in the tax proceedings, as already stated, beginning with the failure of the county court to examine and correct the delinquent list, as well as the failure of the officers to note on the back tax book the fact of the land in question being delinquent, and of suit being brought against it, with the further fact of the notice of the sheriff’s sale being insufficient.

■ Now, it has frequently been ruled that the entire lack of notice will not invalidate a sheriff’s sale on execution, where the purchaser, a stranger, has not participated in occasioning the irregularity, etc. Draper v. Bryson, 17 Mo. 71; Curd v. Lackland, 49 Mo. 451, and other cases.' - But this rule does not hold when the plaintiff in the execution, or his attorney, is the purchaser at the execution sale. In such case the purchaser is chargeable with all precedent irregularities. His purchase, like a demurrer to a pleading, searches out all previous faults and holds the purchaser chargeable with them, whether he was aware of them or not. ■ “But if notice of vices or infirmities in the proceedings is brought home to strangers purchasing at execution sales, then, as we have shown in the preceding section, such vices or infirmities may impair the title in the hands of such purchaser with notice. But it is incumbent on the plaintiff and his attorney to keep informed of all the proceedings taken in the case under their direction, or by virtue of their authority. The law will not permit them to be ignorant of such proceedings. Hence, if there is any irregularity in the proceedings, neither the plaintiff nor his attorney can, on becoming purchaser under the execution, protect his title by -showing that he was ignorant of the irregularity. * * But it is certain that neither the plaintiff nor his attorney can ever be treated as purchasers having no notice of vices and irregularities in the judgment and proceedings; and that whatever rights and equities the defendant in execution may assert against a purchaser with notice, he may also assert against the plaintiff or his attorney, whether either had any actual notice or not.” 2 Freeman on Executions [2 Ed.], see. 340.

And in this connection it is not to be forgotten that Harness was a resident of Barton county, and in consequence of this he was entitled to be notified, for so the statute provides, that his land in Newton county was going to be sold under execution. R. S. 1889, sec. 4943. This section makes it the duty of the plaintiff in the execution to notify the defendant therein of the fact of the intended sale.

But this court has frequently decided that where a party has been personally served with process, or, though resident in a different county, engages in litigation in a county where he has land, and a judgment against him results, that there, having been virtually notified by such judgment, he needs no formal notice that execution will issue, for this he may expect. Harris v. Chouteau, 37 Mo. 165; Hobein v. Murphy, 20 Mo. 447; Buchanan v. Atchison, 39 Mo. 503; Ray v. Stobbs, 28 Mo. 35; Harper v. Hopper, 42 Mo. 124.

Lohmann v. Stocke, 94 Mo. 672, after citing three oí the above authorities, and quoting from 42 Mo., announces that, where the judgment is rendered in a county where the defendant has land, that there he need'not be notified. This ruling was an entire misapprehension of our former rulings on the subject, and has no basis on which to rest, and we therefore decline to follow it. '

Here Harness took no part in the litigation in Newton county; was ignorant of its pendency, and therefore the rule announced in 37, 39 and 42 Mo. does not apply to him, and, in consequence, the failure to notify him was an irregularity.

The' premises considered, we hold that the decree entered for plaintiff should be affirmed. Burgess, J., concurs in the first and second paragraphs of this opinion; G-antt, P. J., in that portion of the third paragraph which holds the notice of the sheriff’s sale was irregular in consequence of the name therein being “Horners” and on this he is for affirming the decree.

SEPARATE OPINION.

G-antt, P. J.

— I concur in affirming the judgment of the circuit court because of the irregularity in the notice of the sale of plaintiff’s land under the tax judgment. While such an irregularity would not avoid the sale as to an innocent third person, as defendant was the attorney who obtained the judgment and the purchaser at the sale, he is chargeable with notice of the irregularity. But I am constrained to dissent from the opinion of my learned brother on the other propositions announced in his opinion.

In my opinion, the allegation of nonresidence in the petition and the affidavit of nonresidence, each authorized the court to obtain service on the plaintiff here, the defendant in that action, by publication, and it is immaterial that' the clerk also issued a summons on which a non est return was made. When the court, in regular session, ordered publication to be made, it had jurisdiction to so order and was not required to give its reasons therefor. The statute required the defendant to be notified, but it was not necessary to recite the contents of the affidavit or the ñon est return, and a misrecital in no manner affects the jurisdiction, as a lawful notice was given of the pendency of the action. R. S. 1889, sec. 2022.

Holding, then, as I do, that the court had jurisdiction, I think all questions as to the regularity of the assessment were precluded by the judgment in the tax case and it is not open to collateral attack in this action. The opinion on this point, I think, is in direct conflict with many adjudications of this court. Jones v. Driskill, 94 Mo. 190; Gray v. Bowles, 74 Mo. 419; Gibbs v. Southern, 116 Mo. 204.

Nor do I think it was necessary that a notice of the issuance of the execution should have been sent to Barton county, as the execution issued to the sheriff of the county in which the judgment was obtained. Lohmann v. Stocke, 94 Mo. 672; Harper v. Hopper, 42 Mo. 124; Harris v. Chouteau, 37 Mo. 165; Buchanan v. Atchison, 39 Mo. 503.

Buegess, J.,

concurs with me as to the last point on the question of notice of the execution.