Fleming v. Tatum

VALLIANT, J. This is a suit to quiet title 'under section 650, Revised Statutes 1899. The land described in the petition is the north half of section 30, township 23, range 33, but the land in dispute is really only the northwest quarter of that section, that at least is the only part of the section to which the defendants introduced any proof of title. That mistake runs through the pleadings and final judgment which decrees absolute title in defendant Griffin to the whole north half of that section. The mistake is plain on the face of the record. The defendants’ title arises out of a sheriff’s sale under a tax judgment. The petition under which the tax judgment was rendered ran against the north half of the section and the judgment condemned the whole to be sold, but at the sale, the sheriff, as in duty bound, offered the land in the small legal subdivisions of 40 acres each, and when he had sold four forties he realized enough money to pay the taxes and costs on the whole half section, therefore he did not sell the northeast quarter, but that remained to the owner. The purchaser at the sheriff’s sale sold the west half of the northwest quarter to F. & T. J. Friend and the est half to Price. These titles came by mesne conveyances to Tatum, who conveyed the same to defendant Griffin, taking a mortgage back for the purchase — 685 — money. Tliat is the title claimed by the defendants Griffin and Tatum in this suit. It was admitted at the trial that the half section of land described in the petition belonged to one David Fleming in his lifetime, who died in 1898 testate, leaving the plaintiff herein, Lucy Fleming, his wife, his sole devisee. She owns the land now if the title did not pass from her at the sheriff’s sale under the tax judgment in January, 1901. The plaintiff now' contends that that sale was void because the petition on which the tax judgment was founded does not state any one as the defendant. The parties are named in the caption of the petition as. follows: “The State of Missouri at the relation and to the use of A. W. Noel, Collector of the Revenue-in and for the county of McDonald, in the-State of Missouri, Plaintiff, vs. David Fleming, if living, or if dead, his unknown • heirs or devisees, Defendant.” The sufficiency of the petition is not challenged except in one other respect which will be noticed hereinafter. On filing the petition and affidavit attached the clerk in vacation made an order of publication which was published. The style-of the ease in the- order of publication was the same as that in the caption of the-petition as above shown; in all other respects the order was in due form. While F. and T. J. Friend held the title they acquired to the west half of the northwest quarter of' this section by deed from the purchaser at the sheriff’s sale, anch Price held the like title to the east half of that quarter, the plaintiff in this suit brought twoejectment suits, one against the Friends and the other, against Price, to recover the parts held by them res — 686 — pectively. The defendants in those two suits filed answers in which they set up as the foundation of their titles the sheriff’s deed above mentioned, and deeds from the purchaser to them, and the plaintiff filed a reply saying that “the pretended deeds held by them are void. ’ ’ The suit against the Friends went to final judgment in their favor, and the plaintiff dismissed the suit against Price. In the case at bar defendants plead the judgment in the Friends suit as res adjudicator, saying that that suit was by the answer converted into a suit in.equity in which the validity 'of the sheriff’s deed was in issue and adjudged. The record in that case was admitted in evidence on the trial in this case over the plaintiff’s objection. As already said the judgment was for the defendants, vesting the whole half' section in defendant Griffin, and the plaintiff appealed. I. Appellant’s main point is that “the petition does not definitely state any one as defendant.” Appellant in her brief says that it should have stated either that David Fleming was dead, in which event the notice should have been to the “unknown heirs and devisees of David Fleming deceased,” or the pleader should have ‘‘ declared his belief that Fleming was either dead or living and his ignorance whether it be one or the other,” under the terms of section 626, Revised Statutes 1899, now section 1828, Revised Statutes 1909. That section is: “Either party may allege any fact or title alternatively, declaring his belief of one alternative or the other, and his ignorance whether it be the one or the other.” The point insisted on is that the plaintiff in his petition should have stated his ignorance of the fact whether Fleming was living or dead. Section 592, Revised Statutes 1899, now section 1794, Revised Statutes 1909, specifies what the petition shall contain, and divides it into three parts: — 687 — first, the title, including the names of the parties; second, a plain and concise statement of facts constituting the cause of action; third, the prayer for relief. The section authorizing the statement of a fact or title in the alternative has reference to that part of the petition which should state facts constituting the cause of action, although it is quite as important that the petition should state correctly the names of the parties. The main object in pleading is to state with certainty and truth the facts relied on. If a party knows what the fact is, it is his duty to plead it with certainty, and if he knows which one of two facts is correct, he has no right to plead both in the alternative. Therefore, to avail himself of the privilege given in that statute he must avow his belief that one or the other is true, and his ignorance as to which is true. But that rule of pleading could hardly in its nature apply to that part of the petition which states the names of the parties. For example, A and B could not sue as plaintiffs and say that the defendant is indebted to one or the other of them, but which one they do not know; nor could a plaintiff sue two defendants and say that one or the other of them owes him' the obligation, but which one he does not know. But when a plaintiff brings a suit m rem, for example, to establish the State’s claim for taxes on land, it is not inconsistent to name as defendants the record owner of the land, if he be living, or his heirs and devisees, if he be dead, and they be unknown, because the obligation descends with the land. In such case if the record title is in the name of a person who is not known to plaintiff, he may bring his suit naming the defendants in the alternative, that is, naming the person if living, or his unknown heirs or devisees if he is dead and they are unknown. That is what the plaintiff did in this case, but he failed to say that he did not know whether the man was living or dead, and for that failure the plaintiff in this suit now says the — 688 — court did not acquire jurisdiction over’ her as devisee of the deceased former owner of. the land. The reason for requiring a party to state his ignorance as to which of two facts is constituent of bis cause of action, when he p.leads both in the alternative, does not apply in naming the defendants when they are named as in this case, and the statute, section 626, Revised Statutes 1899, now section 1828, Revised Statutes 1909, does not apply; therefore before we can condemn the pleading for failing to state the pleader’s ignorance of that fact we must find some reason for it outside of that statute. If David Fleming had been living at the date of filing the petition, the publication would have been notice to him. He could not have been misled by the reference to his unknown heirs in cáse of his death. And if he was dead at the time, how could the fact that the notice indicated an' uncertainty as to his being alive or dead mislead his heirs or devisees? If the petition hád named as defendants “the unknown heirs or devisees of David Fleming deceased,” it is not questioned but it would be sufficient. ’What then is the material difference between that form and “the unknown heirs or devisees of David Fleming, if he be dead?”. Our attention has not been called, to any-case where the point now contended for by appellant has been presented to this court for decision. Considering it as a proposition of first impression we are unable to find any good reason for sustaining appellant’s position on this point. We hold that the name and description of the defendants, “David Fleming, if living, or, if dead, his unknown-heirs or devisees,” as contained in the petition and in the order of publication, are sufficient. II. Section 580, Revised Statutes 1899, now section 1776, Revised Statutes 1909, authorizing notice by publication against unknown persons, requires the — 689 — plaintiff to state, verified by affidavit, that there are or he believes there are persons interested in or who claim to be interested in the subject-matter of the petition whose names he cannot insert therein because they are unknown to him, and to describe the claims or interests therein of such unknown parties, and how such claims or interests are derived, so far as known to him. Appellant contends that this petition fails to meet that requirement. The petition contains the following clause: “A. W. Noel, collector aforesaid, also alleges under oath that if said David Fleming be dead, he verily believes there are persons interested in the subject-matter of this suit whose names cannot be inserted herein, because they are unknown to him, and that the interest of such persons and how derived, so far as the knowledge of affiant extends, are truly described as follows, viz: That if said David Fleming be dead, his unknown heirs or devisees claim, or might claim, an interest or right in said land by descent, inheritance, devise or operation of law. That David Fleming, if living, is a non-resident of the State of Missouri.” Attached to the petition was an affidavit as the statute requires. We hold that the interests of the unknown parties and how derived as stated in' the petition are sufficiently stated. TTT. The order of publication in the tax suit is dated June 7,1900, the petition was filed June 8th and the first publication was June 8th. The point is made that the order of publication was made before the petition was filed and is therefore illegal. The order of publication recites: “At this day comes the plaintiff herein, by her attorney, before the undersigned clerk of the circuit court of said county, in vacation, and files her petition, alleging among — 690 — other things,” etc., etc. The slight discrepancy in the dates cannot be held to outweigh the solemn declaration in the record. It sufficiently appears that the petition was on file when the order of publication was made. IV. The statute, section 581, Revised Statutes 1899, now section 1777, Revised Statutes 1909, requires the notice to be published once a week for four weeks successively. Appellant contends that this requirement was not complied with, because the proof of publication, as appellant construes it, shows only three weeks’ publication. The proof shows that the publication was made in a weekly newspaper, the affidavit of the publisher says it was published for four weeks successively; the number of the issue and the volume of the newspaper is stated thus in the proof: “In Number 16 of Volume 26, dated June 8, 1900. “In Number 17 of Volume 26, dated June 22,1900. “In Number 18 of Volume 26, dated June 23,1900. “In Number 19 of Volume 26, dated June 29, 1900. ” Here we see an evident mistake in the dates. Bearing in mind that it was a weekly newspaper, and each issue having its number in the volume, we are given four regular weekly issues, numbers 16, 17, 18 and 19, all of volume 26. The first date is given as June 8th, the last as June 29th; from the 8th to the 29th are four successive weeks. If the dates had been correctly given they would have been, 8th, 15th, 22d, and 29th, but the way they are given is: 8th, 22d, 23d and 29th; that is, two weeks between the first and second, one day between the second and third, and one week less one day between the third and fourth publications. We are satisfied that the two dates 22d and 23d are clerical errors, but those errors are corrected by the other facts in evidence: When the publisher states in his affidavit that it was a weekly newspaper, — 691 — that the publication was made for four weeks successively, and gives the numbers of the issues, 'those statements are not overthrown by the dates which are inconsistent with them and apparently contradictory of each other. The circuit court had jurisdiction to try the issue of fact on which its further jurisdiction of the case depended, and the presumption is that it did so, and that on the proof offered it found that the notice had been published once a week for four weeks succesively. We think that finding was justified. V. Over the plaintiff’s objection the court admitted in evidence the record in the ejectment suit of Fleming against Friend. That ruling seems to have been based on the idea that the answer in the ejectment suit converted it into a suit in equity in which the validity of the tax suit was involved. But that was a misapprehension. In an action at law if the defendant pleads an equitable defense going to the life of the plaintiff’s cause of action and prays equitable relief, the action is converted into a suit in equity. For a full discussion of that subject we refer to Hutchinson v. Patterson, 226 Mo. 174. But there was nothing in the pleadings in the suit of Fleming v. Friend to convert it into a suit in equity. The petition was for an action in ejectment, the answer was first, a general denial, then it set out affirmatively that the land had been sold under special execution of a judgment for taxes and that the purchaser at that sale had conveyed the land to defendants. The answer concluded as follows: “That he (defendant) is now in possession of said land as owner in fee simple absolute thereof. ’ ’ That was only a special plea setting up a legal title which could have just as well been introduced in evidence under the general denial. The reply was: “Now comes the plaintiff and for replication denies that part of defendant’s answer in that defendants hold any title to the land in controversy de — 692 — rived from, any source whatever. That the pretended deeds held by them are void.”. There was nothing in the answer indicating that the tax title under which defendants held needed any aid of a court of equity to render it valid,, but it was stated as a valid legal title. And there was no fact stated in the reply which appealed to equity for relief against the asserted legal title. The reply was a general denial of title in defendants .from any source, and an averment that their pretended deeds were void. Equity relieves against a deed valid on its face but voidable for some fact specially pleaded, but if a deed is void its condemnation is on its face, or on the face of the record out of which it arises, and a court of law is competent to pass judgment on it. In the ejectment suit the defendants could under their general denial have introduced in evidence their sheriff’s deed, and that, together with the de'ed from the purchaser to them, would have made their prima facie case; then the plaintiff in rebuttal could have introduced the record in the tax suit out of which the sheriff’s deed arose, and if that record on its face showed the judgment to be invalid, the defendant’s prima facie case would have been overthrown. Ordinarily the judgment in a suit in ejectment is not res adjudicata of the title and there was nothing in that case to except it from the general rule; it was error, therefore, to admit the record in evidence, but it was unnecessary to the establishment of the defendants’ defense, because their title derived from the sheriff’s deed under execution of the judgment in the tax suit was valid and gave them a good title. Therefore the plaintiff suffered no injury by the introduction of the record in the ejectment suit. We find no error of which the plaintiff can complain except the evident mistake pointed out in the first part of this opinion whereby the title to the whole north half of section 30, township 23, range 33, is vested by the decree in the defendant Griffin, whereas his — 693 — only claim is the northwest quarter of that section and he is entitled to that only. The judgment is reverséd and the cause remanded to the circuit court with directions to enter a decree vesting the northeast quarter of the section in question in the plaintiff and the northwest quarter thereof in defendant Griffin subject to the mortgage of defendant Tatum. All concur.