Woodruff v. Bunker-Culler Lumber Co.

ROY, C. This is a proceeding brought in the circuit court of Dent county to quiet the title to a half . section of unimproved timber land. The answer sets up title by the Statute of Limita- ■ tions and alleges that William N. Woodruff, under - whom plaintiff claims, executed a mortgage on the land on November 9, 1874, to Emmet C. Burhaus for , $1000, which was recorded December 3, .1874,.and that-all the right and title of. said Burhaus had become vested in the defendants and that they are the legal - holders of said mortgage, and-that said mortgage has-;, never been paid, and that default has been made in the [384] payment of the mortgage, and that the defendants are entitled to possession until plaintiff shall pay the amount of said mortgage. The answer admits that defendants claim title and denies all other allegations of the petition. The reply is a general denial. There was judgment for the defendants, and the plaintiff has appealed. The land was conveyed to William N. Woodruff by deed dated May 8, 1873, and filed for record December 3,1874. On November 9,1874, Woodruff by the name “Wm. N. Woodruff” executed a mortgage on the land to Everett C. Burhaus to secure $1000' in three notes all payable within a year. It was filed for record December 3, 1874. The evidence shows that the defendants never at any time held those notes or mortgage. Woodruff died in 1899, and the plaintiff, his widow, is his sole devisee, his will, duly probated, being in evidence. The defendants put in evidence the judgment in a suit for taxes on the land against “William N. Wood-ruff,” rendered April 14, 18791, in which the court found “that the defendant has been duly and legally notified of the pendency, object and general nature of this ■ action, by publication in the ‘ Salem, ’ a newspaper published in Dent county, Missouri, for four weeks successively, the last insertion of which was more than four weeks before the first day of the last term of this court,” etc. The defendants claim through a regular chain of title from the purchasers under the execution on that judgment. The bill of exceptions contains the following: “Plaintiff then offered in evidence the order of publication, and proof thereof, filed in suit No. 115', marked ‘Exhibit D,’ as follows, to-wit: in the Dent Circuit Court in vacation; March 20,1878, the State at the relation and to the use of Silas Headrick, collector of the [385] reverme of Dent county, in the State of Missouri v. W. N. Woodruff.” It then set out the order of publication in full, and the affidavit of the publisher attached thereto proving its publication, the jurat to which was as follows: “Sworn to and subscribed before me the 10th day of October, 1878. [Seal.] J. R. Callahan.” The bill of exception then states: “Defendants objected to the introduction of the order of publication and certificate of publication for the reason that the same had never been filed, and there are no marks of filing shown on the same by the clerk of the circuit court, and the same are not identified as being papers in said cause, which objection was by the court overruled.” No exception was noted. The declarations of law given by the court contained the following: It is objected that the tax sale was not valid for the reason that what purports to be the copy of the order of publication though not appearing to be filed shows that it was printed in the name of “W. N. Woodruff.” The record of the original order of publication was not put in evidence. There was no evidence tending to show title by adverse possession in defendants. ■ The point is made by appellant that the proof of publication shows that the name of the defendant as given in the publication of the order of publication was “W. N. Woodruff,” and that, for that reason, there was no valid publication, and, therefore, no jurisdiction in the court to render judgment. Subsidiary to that question the respondents say that the proof of publication was never filed in the cause, and that the jurat to the affidavit of the publisher does not' show that the affidavit was made before an officer having power to administer oaths. [386] I. It is too late for the respondents to contend that the proof of publication was not filed in the tax suit. The bill of exceptions shows that it was filed, though the court, in its declarations of law, in speaking of it, said ‘ ‘ though not appearing to be filed. ’ ’ The meaning of the bill of exceptions, when considered in all its parts, is that it was filed, though not marked filed. II. Freeman on Judgments, sec. 125', says: “But no presumptions in support of the judgment are to be allowed in opposition to any statement contained in the record. If an act be .stated in the roll as having been done in a specific manner, no presumption arises that at some future time the act was done in a more efficient manner. If it appears that process was served in a particular mode, no other and different service can be presumed. To indulge such a presumption would be to contradict the record which imports absolute verity. When, therefore, the record shows that certain steps were taken to procure jurisdiction and the law does not consider those steps sufficient, the judgment will be regarded as void for want of jurisdiction over the defendant.” That doctrine is approved in Cloud v. Pierce City, 86 Mo. l. c. 368. In Feurt v. Caster, 174 Mo. l. c. 303, it was said : “Since the decision in the case of Cloud v. Pierce City, 86 Mo. 357, where the question was exhaustively considered, it has been held in this State, even in collateral proceedings, that the jurisdictional recitals of a judgment of due service of process will be controlled by, and must yield to, the service as it appears upon the whole record. The recitals of the judgment will be deemed to refer to the kind of service shown by other parts of the record.” To the same effect are Stark v. Kirchgraber, 186 Mo. 633; State ex rel. v. Fisher, 230 Mo. 325; Hutchinson v. Shelley, 133 Mo. 400. [387] In order to constitute constructive process by order of publication, it is necessary not only that such order be made, but it must be published in the manner required by law. [Jewett v. Boardman, 181 Mo. 647; Stewart v. Allison, 150 Mo. l. c. 346.] Section 5901, Revised Statutes 1909, provides for a proof of publication by copy of it with the affidavit of the publisher of the newspaper showing its publication. That proof was filed in the tax suit. It constituted a part of the roll or record in the case. It shows that the publication was against “W. N. Wood-ruff.” As held by Freeman on Judgments, there is no presumption that there was a proper publication of' the order' at any other time. We are driven to the proposition that the record, taken all together, shows that the only publication was against “W. N. Woodruff.” Such a publication, where there is no element of estoppel, is by our uniform decisions void. Blair, C., in White v. Gramley, 236 Mo. 647, so held, citing a list of authorities. In Ohlmann v. Mill Co., 222 Mo. 62, it was held that an order of publication against “Mike” Ohlmann was void as to Michael Ohlman. The fact that Woodruff had executed a mortgage on the land by the name “Wm N. Woodruff” does not change the result. “Wm.” is universally known as an abbreviation of William, but not so with the single letter “W.” The failure of the officer to affix the title of his office after his name, if it had any effect, would tend to impeach the jurisdiction and not to support it. The judgment is reversed and the cause remanded for a new trial. Blair, G., concurs. PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court. All the judges concur.