Keaton v. Jorndt

BURGESS, J. Action under section 650, Revised Statutes 1899, to quiet title to lands in Stoddard county, Missouri, and described as the northeast quarter, and the east half of the southeast quarter, and the east half of the northwest quarter, and the east half of the southwest quarter of the southeast quarter of section 4, in township 23, range 12 east. Plaintiff claims title to all the lands described. Defendants F. A. Brannock, James B. Buck and Walter W. Walker claim title to the northeast quarter; defendants F. A. Brannock and M. W. Brannock claim title to the east half of the southeast quarter, and defendant Jorndt, to an undivided one-half interest in the east half of the northwest quarter and the east half of the southwest quarter of the southeast quarter of said section of land. — 124 — Nathan T. Thurber was the common source of title. He died some time prior to April 21, 1896, leaving a will dated March 14, 1896, which will was probated April 21, 1896, and recorded in Stoddard county on the 3rd day of January, 1903. By this will Nathan T. Thurber bequeathed $1,500 to Katie Antoinette Viger and Austin H. Lemen, in trust for three of testator’s grandchildren. The will further provided: “Second. After the payment of the foregoing bequest, I give, devise and bequeath all the remainder and residue of my property, both real and personal of every kind and nature, and 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 whatever, as she shall see fit, it being my intention that she shall have the same rights 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. Thurber, 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 Viger and Mary A. Lemen, in equal shares, and to their heirs and assigns forever. “I hereby nominate and appoint Carrie E. Thurber, Austin H. Lemen and William B. Stone, executors of this will, and request that they be not required to give bond. I hereby authorize and empower my said executors to sell, convey and dispose of my property in such manner as the best interest of my estate may in their opinion require, hereby authorizing them to execute and deliver any and all conveyances or instruments of any kind necessary and proper in the management of said estate and to deal with said property in all respects as though the same were their own individual property.” — 125 — Plaintiff obtained Ms title by a special warranty deed from Samuel F. Campbell, who obtained his title by two deeds. The first of these was a quitclaim deed, dated March 27, 1902, and filed for record January 3, 1903, from Carrie E. Thurber, Permelia L. Stone and Harry L. Stone, purporting to convey an undivided one-half interest in said section 4, and other lands, in all about 1,120 acres, for a consideration of $200. This deed was witnessed by J. W. Bailey and Hattie E. Stone. The second of these deeds was a quitclaim deed from Carrie E. Thurber, witnessed by J. W. Bailey and Hattie E. Stone, purporting to convey an undivided one-half interest in said section 4, and four hundred and eighty acres of other land, for a consideration of $500. Defendants claim title under a sheriff’s deed to the land in controversy, and by mesne conveyances from the purchasers at the sheriff’s sale to the defendants. The sale for taxes was had on the 9th day of March, 1898, and the sheriff’s deed offered in evidence recites that the judgment was rendered on the 23rd day of November, 1897, for taxes in the sum of $21.19 for the years 1894 and 1895, and $30.05 costs, and that the land was stricken off and sold for the sum of eighty dollars. The plaintiff objected to the introduction of said sheriff’s deed in evidence on the ground that the tax proceedings upon which it was based were void and subject to collateral attack, and that the court had no jurisdiction of the persons of the owners of the real estate therein sought to be conveyed, nor of the subject-matter- — the real estate in -controversy. Said tax suit was instituted by publication, and the plaintiff objected that the affidavit upon which the order of publication was based was insufficient, that the defendants in the suit were not correctly named, and that the sheriff’s deed showed upon its face that the land was not sold in the smallest legal subdivsion. — 126 — Throughout the tax proceedings the defendants therein are named as Carrie E. Thurber, Mollie H. Lemen and Austin TI. Lemen, her- husband, Katie A. Yigar and Edward R. Yigar, her husband, Birdie E. Stone and Harry L. Stone, her husband, heirs at law of Nathan T. Thurber, deceased. Attached to the petition in the tax proceedings, and made part thereof, was an affidavit by the collector of the county which stated, among other things, that the “above-named defendants are non-residents of the State of Missouri, and the ordinary process of law cannot therefore be served upon them.” In the petition in said tax proceedings, Carrie E. Thurber is designated as one of the “heirs at law of Nathan T. Thurber, deceased,” while in the taxbill, attached to the petition and made part thereof, she is designated as “widow of Nathan T. Thurber, deceased.” Defendants pleaded and proved that they, and those under whom they claimed, had paid the taxes levied and assessed against said land since the year 1894, and that plaintiff had not offered in his petition to refund to them such payments in the event he should be successful in this suit. The court found the issues in favor of plaintiff, and that the sheriff’s deed under which defendants claim was void and conveyed no title in and to the premises for the reason that the court in said tax proceeding did not obtain jurisdiction, and its judgment was void and subject to collateral attack. The court further found that the title to the premises in controversy is in plaintiff, and decreed that the same be determined and vested in him. After unavailing motions for a new trial and in arrest of judgment, the defendants appealed to this court. One of the questions for solution in this case is whether, under the amendment of 1889' to section 3494, Revised Statutes 1879, and embodied in section 2022, — 127 — Revised Statutes 1889, the simple allegation of non-residence in the verified petition in the tax suit gave the court jurisdiction of the defendants therein for the purpose of ordering the publication by the clerk against them. The plaintiff contends, and the court found, that actual personal service upon said defendants was necessary to confer such jurisdiction upon the court, while defendants insist that the notice by publication was all-sufficient. The allegation of non-residence in the tax suit named was as follows: “A. L. Harty,,the above-named collector of Stoddard county, Missouri, being duly sworn upon his oath states that Carrie E. Thurber, Mollie H. Lemen, Austin H. Lemen, Katie A. Vigar, Edward R. Yigar, Birdie E. Stone and Harry L. Stone, heirs at law of Nathan T. Thurber, deceased, the above-named defendants, are non-residents of the State of Missouri, and that the ordinary process of the law cannot be served upon them.” It was contended by plaintiff, and so ruled by the trial court, that, since the tax suit was brought after the amendment of 1889 to the statute providing for service by publication (Sec..575 R. S. 1899), this allegation of non-residence was insufficient to warrant the clerk in issuing the order of publication, but that, in addition to reciting that the “defendants are nonresidents of the State of Missouri, and that the ordinary process of law cannot be served upon them,” the allegation should have included the words “in this State,” or should have recited, in the language of the statute, that' the defendants ‘ ‘ cannot be served in this State in the manner prescribed in this chapter,” and that since the affidavit of non-residence did not contain this allegation, the judgment in the tax suit was void. Prior to 1889 the statute read as follows: “If the plaintiff, or other person for him, shall allege in his — 128 — petition, or file an affidavit, stating that part or all of the defendants are non-residents of the' State, or have absconded or absented themselves from their nsnal place of abode in this State, or that they have concealed themselves so that the ordinary process of law cannot be served upon them, the court,” etc. In 1889 the section was amended by inserting the parts italicized below, so that, as amended, the statute (Sec. 575, R. S. 1899), now reads: “If the plaintiff, or other person for him, shall allege in his petition, or at the time of filing same, or at any time thereafter, shall file an affidavit, stating that part or all of the defendants are non-residents of the State, or is a corporation of another State, kingdom or country, and cannot be served in this State in the manner prescribed in this chapter, or have absconded or absented themselves from their usual place of abode in this State, or that- they have concealed themselves so that the ordinary process of law cannot be served upon them, the court,” etc. As the statute stood before the amendment, there-can be no question that the allegation in the petition, that the defendants “are non-residents of the State of Missouri, ” etc., was sufficient to confer jurisdiction on the clerk to issue the order of publication. [Coombs v. Crabtree, 105 Mo. 292.] But it is argued by plaintiff that the amendatory words, “and cannot be served in this State in the manner prescribed in this chapter,” apply to non-resident individuals as well as to “ a corporation of another State, kingdom or country.” The question which confronts us, then, is, what was the intention of the lawmakers in making this amendment? - The object of the amendment was certainly not to make it more difficult to acquire service upon or jurisdiction over a non-resident defendant than before the act was amended, or in a different way. — 129 — Before the act was amended, in order that the court might acquire jurisdiction of a non-resident personal defendant in the class of cases mentioned in section 575, supra, it was only necessary for the plaintiff, or other person for him, to allege in his petition, or file an affidavit, stating that part or all of the defendants were non-residents of the State. Upon this being done, the court in which the suit was brought, or in vacation the clerk thereof, was required to make an order directed to the non-resident defendants, notifying them of the commencement of 'the suit, and stating briefly the object and general nature of the petition, etc. But, if plaintiff’s position be correct, the plaintiff in the case, or whosoever verifies the petition or makes the affidavit of non-residence of the defendant or defendants, under the statute as it now is, must also state under oath that siich non-resident defendants “ cannot be served in this State” — that is, with personal process. This, it seems to us, would require of the plaintiff the doing of an unnecessary thing, and one which the Legislature did not intend. If the court, upon the filing of an affidavit of non-residence and the issuance of an order of publication, could acquire jurisdiction of a nonresident personal defendant, as it did prior to said amendment of 18891, it was but idle ceremony, and added no force or effect to the process, to require the plaintiff to allege in his petition, or make affidavit, that the defendant non-resident could not be served with process in this State. As applied to non-resident individuals, the amendment was- wholly unnecessary, but as' applied to a non-resident corporation, the amendment serves a useful purpose. Foreign corporations doing business in this State usually do so. under licenses issued by the State, and have, agents in the State to represent them, and upon whom ser — 130 — vice of process may be had in the manner prescribed in section 570, chapter 8, Revised Statutes 1899'; and the fact that the Legislature had in mind only foreign corporations which did no business in this State, and had no office or agent therein, is clearly indicated by the language used — “and cannot be served in this State in the manner prescribed in this chapter.” Such service is not the “ordinary process of law.” A similar question was before the St. Louis Court of Appeals in Hedrix v. Hedrix, 103 Mo. App. 40. Personal service was had out of the State, under section 582, Revised Statutes 1899, and the affidavit upon which such process was issued, under section 575i, after stating that the defendant was a non-resident so that the ordinary process of law could not be served upon him, omitted the words “in this State.” It was held that the process was void, and conferred no jurisdiction over the defendant. That case, however, was subsequently overruled by the same court in the case of Harbert v. Durden, 116 Mo. App. 512, in which it is said: “In support of the point that it was necessary for the verified petition, or the affidavit to it, to state that the ordinary process of law could not be served on the defendants in this State, we are cited' to the case of Hedrix v. Hedrix, 103 Mo. App. 40. We consider that decision an erroneous construction of the statute, as to the point in hand, and overrule it.” Paddock v. Paddock, 91 S. W. 398, was a suit for divorce in which personal service was had upon the defendant beyond the border of the State, as authorized' by section 582, supra, on the plaintiff’s affidavit that the defendant was not a resident of this- State, but a resident of Linn county, Kansas. Held, that the service was not void because the affidavit did not further state that ordinary process of law could not be served upon the defendant “in this Státe.” It is apparent that the case last cited is in conflict with the Hedrix case, and such seems to have been the opinion — 131 — of the Kansas City Court of Appeals, as said court certified the case to the Supreme Court upon that ground. Tufts v. Volkening, 122 Mo. 631, was a suit by attachment upon the ground that the defendant was a non-resident of this State. The affidavit for the attachment alleged that the plaintiff had good reason to believe, and did believe, that the defendant was not a resident of this State. On this affidavit an order of publication for an attachment was based. Said suit was begun in 1892, while the amendment under consideration was made in 1889. The point was made in that case that the court had not jurisdiction of either the subject-matter of the controversy or the defendant, but both the trial court and the Supreme Court held adversely to such contention. The words of the statute, “and cannot be served in this State in the manner prescribed in this chapter,” must be taken as having reference to “a corporation of another State, kingdom or country,” and not to natural persons who are non-residents of this State. Our conclusion is that the court had jurisdiction of the case, and of at least some of the parties defendants in said tax suit. As has been said, the taxes on the land in controversy were for the years 1894 and 1895, hut were not alleged in the petition to have been assessed to any particular person or persons. On June 21, 1897, the collector of Stoddard county and his attorney brought suit to enforce the State’s lien on the land against Carrie E. Thurher, widow of Nathan T. Thurber, deceased; Mollie EL 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. The petition and taxbill describe the parties sued as above, and so did the order of publication and the affidavit for the order of publication. By referring — 132 — to the provisions of the will hereinbefore recited, it will be seen that some of the heirs named therein were incorrectly named in the tax proceedings. Mary A. Lemen is misnamed Mollie H. Lemen; Hattie E. Stone is misnamed Birdie E. Stone; Katie Antoinette Viger is named Katie A. Vigar, and Carrie E. Thnrber is designated in the caption of the petition as an heir of Nathan T. Thurber, while in the taxbill she is designated as the widow of Nathan T. Thurber. The same error occurs in the sheriff’s deed. [Spore v. Land Co., 186 Mo. 656, and authorities cited.]