Miller v. Medley

139 S.W. 158, 236 Mo. 694, 1911 Mo. LEXIS 224

• Court: Supreme Court of Missouri
• Decided: July 15, 1911
• Status: Published

Opinion

FERRISS, J.

This is a suit to define and quiet the title to a tract of land comprising about three hundred and six acres, in section 4, township 23, range 12, Stoddard county, Missouri. The action was originally brought by plaintiff, John N. Miller, against one' C. L. Medley, as sole defendant, the original petition being filed January 24, 1902, returnable to the March term, 1902, of the circuit court of said county. After-wards, on March 27, 1902, Samuel P. Campbell became' the owner of a one-half interest in the lands, and on September 1,1902, purchased the other half from Carrie E. Thurber. On February 2, 1904, plaintiff filed his amended petition, making C. L. Medley, Berlin Stafford, Mary Y. McShane and Samuel P. Campbell parties defendant, but the case was dismissed as to the three last-named defendants. Defendant Medley answered, but he abandoned the case, and his pleading is not, therefore, incorporated in the abstract of the record.

At the March term, 1904, of said court, the respondent, C. L. Keaton, on his own motion, was made a party defendant to the action, and filed his answer to the petition. Pie states in his answer that he enters his appearance as defendant in the cause, instead of Samuel P. Campbell, and that he had purchased all the right, title, interest and estate of the said Campbell in and to the real estate in plaintiff’s petition described. The defendant avers in his answer that he-is advised and believes that plaintiff’s claim to said real estate is based on a void tax deed, and that the defendant is owner in fee absolute of said real estate, and then claims and deraigns his title as follows: Patent from the United States to the State of Mis-‘ souri; patent from the State to the county of Stodffard; patent from said county to Henry H. Bedford; warranty deed from Bedford to Nathan T. Thnrber; Nathan T. Thnrber, by last will and testament, to Carrie E. Thnrber, with full power to sell and dispose of said property, and to his children, Hattie E. Stone, Katie Antoinette Yigar and Mary A. Lemen; quitclaim 'deed.from Carrie E. Thnrber, Parmelia L. Stone, and Harry L. Stone, her husband, conveying an undivided one-half interest in said real estate to Samuel F. Campbell; quitclaim deed from Carrie E. Thurber, conveying the other undivided one-half interest “to Samuel F. Campbell; special warranty deed from 'Samuel F. Campbell and Anna M. Campbell, his wife, dated February 19, 1904, to the defendant, C. L. Keaton.

Plaintiff’s reply to defendant Keaton’s answer ■denied each and every allegation, averment and statement of new matter therein contained.

Plaintiff offered in evidence, as the basis of his title, a deed dated March 9, 1898, from James A. Evans, sheriff of Stoddard county, conveying to plaintiff the land in controversy, said deed being admitted by the court subject to defendant’s objections.

Defendant introduced in evidence, over plaintiff’s . objections, the deposition of Carrie E. Thnrber, as f olows:

“My name is Carrie E. Thnrber; I am seventy years of age. I live at Lansing, Michigan. I am the ■widow of Nathan T. Thnrber, late of Detroit, Michigan. Nathan T. Thnrber, my husband, died at Detroit, Michigan, March 19, 1896. I am his widow, and "his heirs, other than myself, at the time of his death, were Mary A. Thnrber, a daughter, wife at the time -of A. H. Leman; Katie A. Thnrber, a daughter, wife at the time of E. R. Viger, and Hattie E. Thnrber, a ■daughter, wife at the time of Harry L. Stone. They were all alive in June, 1897, and are still living. I :Sold section 4, township 23, range 12, Stoddard connty, Missouri, to S. F. Campbell, in September, 1903. None of tbe other heirs signed the deed.”

Defendant nest offered in evidence the will of Nathan T. Thurber, dated March 14, 1896, the portion of said will relating to the devise of testator’s land being as follows:

“After the payment of all my just debts and funeral charges, I give, bequeath and devise all my real and personal estate, wherever situated, as follows: I give, devise and bequeath to Katie Antoinette Yiger and Austin IT. Lemen, trustees, for Nathan E. Viger, Harold T. Yiger, and Edward R. Yiger, Jr., the sum of fifteen hundred dollars, said sum to be invested by said trustees and to be divided and distributed among my grandchildren named, viz: Nathan E. Yiger, Harold T. Yiger and Edward R. Viger, Jr., as follows: The sum of fifteen hundred dollars, with interest thereon, to be paid to each of said grandchildren when He shall have arrived at the age of twenty-two years. In case of death of either of said grandchildren before arriving at the age of twenty-two years, then and in that case I direct that the share of such grandchild shall be and belong to the surviving grandchildren named herein, it being the intention hereby to provide that said total sum shall go to said grandchildren, or to the survivor of them.

“Second. After the payment of the foregoing, bequests, I give, devise and bequeath all the remainder and residue of my property, both real and personal, of every kind and nature, wherever situated, to my wife, Carrie E. Thurber, for the term of her natural life, with full power to sell and dispose of the same for her support, maintenance and for any other purpose whatsoever, as she shall see fit, it being my intention that she shall have the same right to use, dispose of and convey said property as though the same were bequeathed to her forever.

“Third. After the death of my said wife, Carrie E. Thurher, I give, devise and bequeath all the residue and remainder of my property, both real and personal, not disposed of by my said wife during her lifetime, to my three daughters, Hattie E. Stone, Katie Antoinette Yiger and Mary A. Lemen, in equal shares, and to their heirs and assigns forever.”

Defendant next offered in evidence the petition and back taxbill, order of publication and affidavit for order of publication as and for a supplied record in the case of State ex rel. A. L. Harty v. Carrie E. Thurber, Mollie H. Lemen- and Austin H. Lemen, her husband, Katie A. Yiger and Edward E. Yiger, her husband, Birdie E. Stone and Harry L. Stone, her husband, heirs at law of Nathan T. Thurber, deceased, being tax suit No. 18 for taxes due for the years 1894 and 1895, amounting tó $21.19, on land alleged in the petition to be owned by said parties, and described as “Tract No. 1, SW 1-4 and W. 1-2 of NW 1-4 and NW 1-4 of SE1-4 and W 1-2 of SW 1-4 of SE 1-4 of section 4, township 23, range 12.”

This was the suit in which, on the 23d day of November, 1897, judgment for taxes was rendered against the defendants therein named, and under which judgment the sheriff of Stoddard county sold the land to the plaintiff, John N. Miller.

The findings and judgment of the court were as follows: .

“That the plaintiff claims title from the common source, Nathan T. Thurber, by virtue of a sheriff’s deed in a tax suit to enforce the State’s lien against the land sued for, dated March 9, 1899. The ^ourt doth find that' said deed is void and conveys no tide in and to the premises, for the reason that the court in said tax proceedings did not obtain jurisdiction, and its judgment is void and subject to collateral attack.

“The court further finds that the said C. L. Medley doth claim title through a sheriff’s deed dated September 19, 1868, by mesne conveyances. That said deed is void and conveys no title. And the court doth further find that defendant C. L. Keaton claims and holds title from the common source, Nathan T. Thurber, by and through his last will and testament and mesne conveyances thereunder, by a regular chain of title, and hath the regular and true title to the premises in the petition described.

“The court doth therefore and thereupon order, adjudge and decree that the title to said premises, to-wit, the southwest quarter and the west half of the northwest quarter and the northwest quarter of the southeast quarter and the west half of the southwest quarter of the southeast quarter of section 4, in township 23, range 12 east, be determined and vested in the defendant, C. L. Keaton, and that he recover the same together with his costs in this behalf, and that he have execution against the plaintiff. ’ ’

Plaintiff’s motions for new trial and in arrest having been overruled, he saved his exceptions and apjiealed to this court.

Plaintiff insists that the sheriff’s deed under which he claims title is in form and substance a compliance with the statute, and its recitals prima-facie evidence of their truth.

I. Section 7684, Revised Statutes 1889, provides that when land is sold by the sheriff under a judgment and fieri facias for back taxes, “the sheriff shall execute to the purchasers of real estate under this chapter a deed for the property sold, which shall be acknowledged before the circuit court of the county or city as in ordinary cases, and which shall convey a title in fee to such purchaser of the real estate therein named, and shall be prima-facie evidence of title, and that the matters and things therein stated are true.”

The defendant contends that the sheriff’s deed in this case is void upon its face. If that be true, the statute quoted is of no avail, and no title passed by the deed. The objection is that the deed does not show that anything was bid for the land at the sheriff’s sale, and does not recite, as in ordinary sheriff’s deeds for lands sold under execution, that the purchaser, “being the highest and best bidder for said real estate, at the price and sum of . . . dollars, the same was stricken off and sold to said (purchaser) for that sum.” The deed, however, does recite that “John N. Miller, being the highest and best bidder for the following described real estate [describing the land in question], the said last above described tract was stricken off and sold to the said John N. Miller for the sum bid therefor by him as above set forth. Now, therefore, in consideration of the premises, and the sum of two hundred and fifty dollars to me, the said sheriff, in hand paid by said John N. Miller, the receipt of which I do hereby acknowledge, ... I, James A. Evans, sheriff as aforesaid, do hereby assign, transfer and convey to the said John N. Miller, all of the above described real estate so stricken off and sold to him,” etc. Thus, by the subsequent recitals in the deed, it is shown that the bid for the land was two hundred and fifty dollars; and when the deed is considered altogether, it is, in respect of the matter complained of, in substantial compliance with the statute.

The deed shows upon its face that the land was sold in a lump, while as contended by defendant, the several tracts should have been sold separately, and only enough sold to satisfy the judgment. This land all lies in the same section, and at the time of its assessment the land all belonged to the same persons. Therefore, under section 7553, Revised Statutes 1889, which required all land owned by the same person in the same section, or lands so owned in the same block, to be consolidated and treated as one tract or one lot, the land was properly assessed as one tract; bnt it does, not follow that the sale of it as one tract was proper.

Another objection to the deed is that it shows that the judgment under which the land was sold was. only for -twenty-one dollars and nineteen cents, and the amount which the land brought at the sale was. two hundred and fifty dollars, an amount greatly in excess of the judgment. Section 7683, Revised Statutes 1889, provides as follows:

“The judgment, if against the defendant, shall describe the land upon which taxes are found to be due; shall state the amount of taxes and interest found to be due upon each tract or lot, and the year or years for which the same are due, up to the rendition thereof, and shall decree that the lien of the State be enforced, and that the real estate-, or so much thereof as may be necessary to satisfy such judgment, interest and costs, be sold, and a special fieri facias shall be issued thereon, which shall be executed as in other cases of special judgment and execution, and said judgment shall be a first lien upon said land.”

While the great difference between the amount of the judgment and the amount which the land brought at the sale strongly indicates that much more of the land was sold than was necessary to satisfy the judg-. ment and costs, the sale was not for that reason void, but irregular, and might have been set aside in a direct proceeding for that purpose. [Yeaman v. Lepp, 167 Mo. 61.] Nor is the deed void because of the use of abbreviations which are well understood in describing land. [Sec. 7707, R. S. 1889.] In State ex rel. v. Vaile, 122 Mo. 33, it is said abbreviations in assessment rolls being in every day use and well understood, are sufficient.

II. The deed of the sheriff was evidently upon a printed form so prepared as to be appropriate where several tracts were involved. That such form was used is apparent from an inspection of the certified copy exhibited to us. -Some confusion appears because of the use of this form. It is, however, clear that the land was assessed as one tract and was • so treated throughout the proceedings. The expression in the deed, “upon each of the above tracts,” is found in the printed form. The failure to change the form presents a slight hut not serious irregularity. So the writing in the aggregate of the taxes in the column headed “Interest” instead of the one headed “Taxes” is an obvious clerical error.

III. Defendant contends that the sheriff’s deed is void on its face by reason of its failure to show the amount of taxes delinquent for each of the years 1894 and 1895. The deed shows the aggregate of the taxes for the two years in the following form: “Tear 1894, $-; year 1895, $-; total, $21.19.”

Sections 7682, 7683, Revised Statutes 1889, require the petition in a tax suit to ‘ ‘ show the different years for which taxes are due,” and that the same matter shall he set forth in the authenticated tay bill filed with the petition. The judgment is required to state the amount of the taxes “and the year or years for which the same are due.” The judgment rendered in the tax suit was not put in evidence. Respondent, however, introduced a copy of the petition in the tax suit together with the authenticated tax hill, which severally state the amount of the taxes for each fund and for each year separately. Assuming, as we must, that the sheriff’s deed correctly recites the judgment, does the fact that the judgment states the aggregate of the taxes for the two years, and not the amount for each year separately, invalidate the judgment? The statute does not say in terms that the judgment should state the amount due for each year separately. It says that the judgment shall state the amount of the taxes,- ‘ ‘ and the year or years, for which the same are due.” The judgment here, as recited in the sheriff’s deed, states the aggregate amount of the taxes, viz., $21.19, for the years 1894 and 1895.

It is claimed that this court has in two cases construed the statute to mean that the judgment must state the amount due for each year separately, and we are cited to Bland v. Windsor, 187 Mo. 108, and Cooper v. Gunter, 215 Mo. 558. Neither of these cases involves the point under discussion. In Bland v. Windsor a judgment was rendered for the taxes of 1897, when the action was predicated upon the taxes for 1876. It was held by Fox, J., that the judgment was invalid because it did not correctly state the year for which the taxes were due. In other words, the judgment was upon a cause of action not stated in the petition.

In Cooper v. Gunter, supra, the judgment did not state the year or years for which the taxes were due, and the judgment was held bad because it omitted the year or years entirely. That case, however, contains a significant intimation that if the petition had stated the years for which taxes were due, then the defect in the judgment might be supplied by reference to the petition. In the case at bar we have both the petition and tax bill, and they both correctly state the taxes due for each year separately; so that, upon the whole record, the facts required by statute appear. In State ex rel. Waters v. Hunter, 98 Mo. 386, it is said by Barclay, J., that £<a judgment may properly refer for particulars to other parts of the record;” in that case, to the finding of the court. Taking what is said by Valliant, J., in Cooper v. Gunter, supra, together with the above holding by Barclay, J., we have sufficient authority to hold that the omission in the judgment of the separate amount of each year’s tax may be supplied by reference to the petition and tax bill. We are not disposed, however, to rest our opinion upon that ground. We think the defect in the judgment is a mere irregularity, not available to the defendant in this proceeding. The statute above referred to (Section 7683, E. S. 1889) provides in express terms that the judgment ‘ ‘ shall state the amount of taxes and interest found to be due upon each tract or lot.” This would seem to be a more important requirement than that the judgment should state the year or years for which taxes are due, inasmuch as each tract is liable for its own taxes. In Jones v. Driskill, 94 Mo. 190, it was held by this court that the failure of the judgment to find the amount due on each tract separately was erroneous and subject to correction on appeal; yet, Brace, J., speaking for the court (p. 199) says: “It is not void, and having been rendered by a court having jurisdiction of the person and subject-matter, the title of a purchaser of property bought at execution sale under such judgment is not affected by such error.” We regard this case as establishing the law of this State, and have no disposition to depart from the rule declared therein. The above case of State ex rel. v. Hunter went further, holding valid a judgment for taxes which aggregated the taxes due on several tracts for several years, because in the finding of the court the tracts of land, with the amount due on each tract, were set out separately. In that case the finding itself in stating the taxes due on two of the tracts aggregated the taxes for several years, as was done in the case at bar. We do not think it necessary in this case to go as far as to hold that the judgment was entirely regular. It is sufficient to hold that it is good in a collateral proceeding. In Brown v. Walker, 11 Mo. App. 226, Thompson, J.,. discusses at length the subject of irregularities in tax judgments, and his opinion in that case was adopted by this court (85 Mo. 262). See also, Morrison v. Turnbaugh, 192 Mo. 427.

IV. The other questions raised by defendant as to the validity of the sheriff’s deed are disposed of in favor of the plaintiff by the decision of this court in the case of Keaton v. Jorndt, 220 Mo. 117.

V. In the above case of Keaton v. Jorndt, the court holds that the sheriff’s deed conveyed the interest of Katie A. Yiger. In that case there was no question raised as to misnomer in the order of publication. In this' case the original abstract prepared by the appellant shows that she was named in the order of publication as Kitie A. Yiger. The abstract filed subsequent to the order granting a rehearing states that the name was published as Katie A. Yigar. The defendant asserts that the statement in the original abstract is correct. We have no transcript of the record, the case having come up on the short form. If defendant correctly states the facts, we think the notice by publication was bad as to Katie A. Yigar as well as to the other daughters who were incorrectly named, as held in Keaton v. Jorndt, supra, Mary A. Leman being misnamed Mollie IT. Leman, and Hattie E. Stone as Birdie E. Stone. The true name of Mrs. Yigar was Katie A. “Kitie” is not idem sonans with “Katie;” nor is it recognized as being with Katie a diminutive of Catharine. See Standard Dictionary (Punk & Wagnalls), where Katie, Kit and Kitty are given as the derivatives. This court has steadily maintained the doctrine that the given name — the first name — must be correct in an order of publication. We have held that a change in or omission of the middle name or initial is unimportant. This on the theory which comes to us from the common law that such middle name or initial is no part of the name; in other words, that in law there is only one given name. [Howard v. Brown, 197 Mo. l. c. 46, and cases cited; Nolan v. Taylor, 131 Mo. 229.] So far as the first name is concerned, however, the law, as heretofore held by this court, requires strict accuracy. [Ohlmann v. Sawmill Co., 222 Mo. 62.] Where substituted service is employed, it is not a question of actual notice. One may know that a suit is pending against him, but he is entitled to such service as the law directs before he is required to appear, and without such service the court acquires no jurisdiction of his person. Personal service cannot be had by- service upon'some other person, and substituted service •cannot be had upon one by some other name than‘his true name. Kit and Kitty are common substitutes for Kate and Katie; but Kitie is unusual, not given as a •derivative from Catharine, and not similar in sound to Katie. It is not Katie, nor is it idem sonans with Katie. The following rule was laid down by this court in Simonson v. Dolan, 114 Mo. l. c. 179: “The rule established by the authorities is that names are idem sonans if the attentive ear find difficulty in distinguishing them when pronounced, or common and long continued usage has by corruption or abbreviation made them identical in pronunciation. . . . It is not absolutely necessary that the names should be spelled alike, so that the pronunciation is the same.”

VI. In his answer defendant sets out his claim of title, but made no proof thereof/ He now claims that the reply did not put in issue the fact's alleged in the answer. The reply was as follows: “Now comes the plaintiff for reply to the new matter in co-defendant Keaton’s answer herein denies each and every allegation, averment and statement therein contained.” We think this was a good reply. The case, therefore, stands without proof of defendant’s claim of title.

VII. ' We have no satisfactory basis for a final judgment upon the nature and extent of the interests •of the parties. We reverse the judgment and remand the cause, with directions to the circuit court to enter a judgment in favor of plaintiff, vesting in him the title to whatever interest Carrie E. Thurber had in the lands acquired under the sheriff’s deed, and also vesting in him the title to the interest of Katie A. Vigar, if the evidence shows that in the order of publication her true name is correctly written as Katie A. Vigar; such judgment to ascertain and declare the nature and extent of the title so acquired by plaintiff. We further direct the circuit court hy its judgment to ascertain and declare, upon proper proof, whether the defendant has acquired any interest in said lands, and if so,, the extent and nature thereof.

Kennish, P. J., concurs; Brown, J., not sitting..