Whelen v. Weaver

Supreme Court of Missouri

Whelen v. Weaver

93 Mo. 430

CourtSupreme Court of Missouri

DecidedOctober 15, 1887

StatusPublished

Cited by11 cases

This text of 93 Mo. 430 (Whelen v. Weaver) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whelen v. Weaver, 93 Mo. 430 (Mo. 1887).

Pincite

Opinion

Black, J.

This is an action of ejectment for three parcels of land in Shannon county. Plaintiff shows a complete chain of title, by patent and deeds, in himself, to the described property, all of which deeds were duly [432]*432executed and recorded on or prior to December 12, 1871. He continued to be owner of the land until 1879, when he conveyed to one Mendenhall, who conveyed back to plaintiff in February, 1883.

The defendants’ title is a sheriff’s deed, dated November 5, 1880,. to defendant Weaver. The deed recites a sale under a special execution, issued on a transcript of a judgment of a justice of the peace. The judgment was rendered by the justice in a suit by the state at the relation of the collector of Shannon county against Henry Wheler for the collection of taxes due on the land for the year 1878. The only notice of that suit, to the defendant in that case, was an order of publication. The sheriff’s deed does not describe' one of the parcels of land sued for, and, as to that, the defendant does not have even a shadow of a title.

Again, the plaintiff sues by the name of Henry Whelen, and this seems to be his name, as disclosed by the deeds to and from him. The order of publication in the [tax suit is addressed to Henry Wheler. The proceedings, in tha,t suit, from first to last, are against Henry Wheler. Whelen and Wheler are not the same, they are not idem sonans. In Robson v. Thomas, 55 Mo. 582, names are said to be idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or common and long-continued usage has, by corruption or abbreviation, made them identical in pronunciation. Here the pronunciation is entirely different. The tax proceedings, including the deed, are of no force or effect as against the plaintiff, for we have, on several occasions, held that in these tax suits the sheriff’s deed conveys only the interests of the parties who are made defendants, and the plaintiff was not made a defendant in this tax suit.

Without considering the other questions, the judgment, which was for the defendants, is reversed and the cause'remanded.

All concur.

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Black, J.

This is an action of ejectment for three parcels of land in Shannon county. Plaintiff shows a complete chain of title, by patent and deeds, in himself, to the described property, all of which deeds were duly [432]*432executed and recorded on or prior to December 12, 1871. He continued to be owner of the land until 1879, when he conveyed to one Mendenhall, who conveyed back to plaintiff in February, 1883.

The defendants’ title is a sheriff’s deed, dated November 5, 1880,. to defendant Weaver. The deed recites a sale under a special execution, issued on a transcript of a judgment of a justice of the peace. The judgment was rendered by the justice in a suit by the state at the relation of the collector of Shannon county against Henry Wheler for the collection of taxes due on the land for the year 1878. The only notice of that suit, to the defendant in that case, was an order of publication. The sheriff’s deed does not describe' one of the parcels of land sued for, and, as to that, the defendant does not have even a shadow of a title.

Again, the plaintiff sues by the name of Henry Whelen, and this seems to be his name, as disclosed by the deeds to and from him. The order of publication in the [tax suit is addressed to Henry Wheler. The proceedings, in tha,t suit, from first to last, are against Henry Wheler. Whelen and Wheler are not the same, they are not idem sonans. In Robson v. Thomas, 55 Mo. 582, names are said to be idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or common and long-continued usage has, by corruption or abbreviation, made them identical in pronunciation. Here the pronunciation is entirely different. The tax proceedings, including the deed, are of no force or effect as against the plaintiff, for we have, on several occasions, held that in these tax suits the sheriff’s deed conveys only the interests of the parties who are made defendants, and the plaintiff was not made a defendant in this tax suit.

Without considering the other questions, the judgment, which was for the defendants, is reversed and the cause'remanded.

All concur.

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Bluebook (online)

93 Mo. 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whelen-v-weaver-mo-1887.

Opinion

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