Myers v. DeLisle

BLAIR, C. , Action Under sec. 650, r. s. 1899. This action was commenced April 9, 1909, to ascertain and determine, under section 650, Revised Statutes 1899, the interests of the parties in and to 200 acres of land in New Madrid county. The answer (1) denies the allegations of the petition; (2) avers defendants own the land; and (3) pleads the ten-year Statute of limitation and (4) laches. From a judgment for defendants, plaintiffs appeal. In 1890, Bettie and Charles St. Clair, for a recited consideration of $2000, conveyed the land in suit to plaintiff J. A. Myers, and on March 8, 1909', J. A. Myers and wife conveyed a one-half interest therein to plaintiff Allison. Defendants claim under a deed from Seth S. Barnes, whose interest in the land depends upon the validity of a tax judgment and sale and deed thereunder, dated March 27, 1893. The tax deed is conceded to be regular on its face, but the proceedings — 509 — in the tax suit were offered. They disclose that the only notice of the suit was by publication directed to J. A. Myer instead of J. A. Myers. In connection with the question as to the sufficiency of this notice certain evidence was ‘ offered which will be noticed in the course of the opinion. Further questions arose on the evidence on the third and fourth pleas in the answer. Publication: Idem Sonans. I. In a tax suit was the notice by publication directed to J. A. Myer sufficient to support a judgment against J. A. Myersf It is not disputed that to bind J. A. Myers by the judgment it was necessary to malee him a party nor that notice to him was essential to that end (Chamberlain v. Blodgett, 96 Mo. l. c. 484) but it is said, and the trial court found, that the names J. A. Myers and J. A. Myer are idem sonans, and, therefore, the publication constituted notice and the judgment and deed are valid. The clear weight of authority is that in a case like this the omission of a final “s” from a name is a fatal variance (29 Cyc. p. 276; 100 Am. St. Rep. 324; Scarry v. Lumber Co., 233 Mo. l. c. 689) though there are some decisions to the contrary. In this State the general rule was applied in State v. Mohr, 55 Mo. App. 325, and a contrary view was taken by this court, the omission affecting the defendant’s given name, in State v. Havely, 21 Mo. 498. All other eases we have discovered out of harmony with the general rule are criminal cases, except Stevens v. Stebbins, 4 Ill. 25, in which defendant was personally served and the question arose on an objection to the admission in evidence of a note sued on. In Gronzalia v. Bartelsman, 143 Ill. l. c. 640; the same court which decided Stevens v. Stebbins, supra, held that in an affidavit of service of notice of a tax sale “the doctrine of idem sonans cannot be made to — 510 — apply to two such distinct names as Meyer and Meyers.” In Smurr v. State, 88 Ind. l. c. 506, 507, the names Meyer, Meyers and Mayer were held idem sonans. Not a case cited in support of this holding met the exact question as to the effect of the omission of a final “s.” Further, the name Meyer was used in one count of the indictment and Meyers in another. There are good reasons for refusing to countenance laxity in proceedings to sell land for taxes on notice by publication and they have heretofore been well stated: “No man may judicially lose his property without Ms day in court. A day in court proceeds on notice. So, due process of law and jurisdiction depend on notice. By Revised Statutes, section 9303 (1899), it is ordained that tax suits shall be brought ‘against the owner of the property.’ By this is meant the record owner unless the fact is known, or the purchaser have notice that the record owner is not the true owner. When summons is actually served on the right individual by the wrong name, the error becomes immaterial because he has notice of the suit and may appear if he choose and plead misnomer. But absent actual notice when the law for convenience substitutes a constructive notice, the name of the individual defendant obviously becomes one of the essentials and of the very life of the notice. ... If the law tolerated slovenliness or pranks in this regard then slovenliness and pranks might ripen into a custom and. open the door to great mischief. Constructive service at best is harsh. It is service not in substance and fact, but of a sort to which the name of service is attached from necessity. That method of service, being highly technical, must be strictly pursued.” [Ohlmann v. Sawmill Co., 222 Mo. l. c. 66, 67.] In Emeric v. Alvarado, 90 Cal. 465, it was even held that, for reasons somewhat like those just quoted, — 511 — the doctrine of idem sonans does not apply to tax proceedings at all but that “different letters will make different names though the sound be the same.” Other cases are Chamberlain v. Blodgett, supra; Troyer v. Wood, 96 Mo. 478; and Turner v. Gregory, 151 Mo. l. c. 105, 106, cited in the Ohlmann case, supra. To the attentive ear there is no difficulty in distinguishing between Myer and Myers, and under the applicable general rule they cannot be held idem so-nans. It is contended, however, that there was evidence that the two names were and are pronounced alike though spelled differently, and that this evidence justified the trial court’s finding. What the court stated he found was that the names Meyer and Meyers were idem sonans, or, rather, that both were corruptions of the German name Meier. One difficulty in applying in this ease, on the evidence, the rule as to names which are corruptions of another, lies in the fact that the names found by the court to be corruptions of another are Meyer and Meyers and the names in question are Myer and Myers, and another difficulty is that there is neither evidence nor finding that these last are corruptions of any other. The evidence actually is that in the town of New Madrid, where J. A. Myers had never been, som'e of the people were in the habit of addressing one Charles Meier as Charlie Meyers. Several of those who did so testified they did so because they thought his name was Meyers and not because they thought Meier was pronounced Meyers. There was evidence that several persons named Meters lived in New Madrid county and that they were always called Meyers and neither Meyer, Meier, Mayer nor Myer. Properly understood there is no evidence in the record that Meier and Meyers are customarily, colloquially or otherwise, pronounced alike. — 512 — The evidence was not of a character to add anything to the question presented by the face of the notice itself. The question was as to the names Myer and Myers and none other. II. There was no evidence of possession for the requisite time and of the requisite character to make out a defense under the Statute of Limitations. Plaintiff Alphonse DeLisle was the only witness who testified to possession at all and his testimony was that possession was not taken until some time after he received his deed in August, 1899, and his testimony is conclusive even that possession was not continuous. This suit was brought in April, 1909. Laches: Failure to Pay Taxes. III. Finally, it is insisted plaintiff Myers was guilty of laches barring his claim and that of his co-plaintiff who claims under him. His testimony is chiefly relied upon to support this contention. He testified he traded for the land in 1890 and got an abstract showing taxes paid until that year; that he paid the taxes in 1890 and possibly in 1891; that he then and until 1894 lived at Carthage, Missouri, and owned a great deal of land in various sections of the country, and the fact that he owned the land in suit “passed from his mind” and he paid no taxes after 1891; that in 1890 he did not regard the land as of very great value; that he had not abandoned or intended to abandon the land but had let the taxes run behind. It also appears from' his testimony that the first notice he had of the tax suit was when he wrote the collector a short time before this suit was brought. This letter was prompted by an inquiry made of him by his co-plaintiff Allison as to whether he owned.the land in suit. There was no evidence that the purchaser at the tax sale took possession or made any improvements. He did have a surveyor locate the corners. Defendant Alphonse DeLisle and his brother had some timber cut and sawed — 513 — in about 1900, 1901 and 1902. A gradually increasing portion of the tract was partially cleared until about eighty acres were about ready for cultivation but twenty or thirty of these acres had been allowed to grow up (in small timber) again and it is doubtful whether any of it was ready for cultivation in 1909. The trees had been deadened on part. Two small houses and fences (around eighty acres) costing in the aggregate not over $750 had been put upon the land but it does not appear just when. DeLisle testified he paid out about $15 per acre for cleaning up eighty acres. The land has increased in value. It is insisted that this testimony makes out the defense of laches, and Shelton v. Horrell, 232 Mo. 358; Toler v. Edwards, 249 Mo. l. c. 166 et seq. and several other decisions of this court are relied upon as supporting this position. In Shelton v. Horrell, supra, the tax sale was not void but voidable, and defendant in the tax suit had notice of it; and in Toler v. Edwards, supra, the tax suit defendant had notice of the adverse claim and brought her action a considerable time later, having made no claim for about thirty years “during all which time” the land had been claimed by defendants, improvements had been put upon it, money expended in clearing it, and it had been “successively tilled and cultivated by the agents of the grantees in the chain of title running back to the sheriff’s deed; the records of the sheriff’s deed and court proceedings had been burned, witnesses had disappeared.” Those cases are not such as that at bar. In this there was not a voidable tax sale pursuant to a judgment rendered on notice but a void tax sale pursuant to proceedings without notice. There was no judicial proceeding but merely a “judicial usurpation and oppression” (Troyer v. Wood, 96 Mo. l. c. 480), by which plaintiff Myers — 514 — was in nowise affected. It is suggested be must have known taxes would be levied and if not paid bis property sold to satisfy them,, and, consequently, it is said, be must be held to have bad notice. Tbe answer to this is that the record affirmatively shows the land was not sold for taxes — the proceedings in the alleged tax suit being an absolute nullity. Myers bad the right to assume, that if a sale was attempted notice of some kind would be given and that without notice there would be no sale attempted. Express notice (by summons or publication) to Myers was essential to the validity of the proceedings in any tax suit. To raise from the collector’s duty to sue for delinquent taxes an implication of notice of a suit that the record affirmatively and conclusively shows was, in a legal and constitutional sense, never instituted at all, is a task we will not undertake. Eather are defendants who claim under the void tax proceedings, to be charged with notice of their invalidity. [Dameron v. Jamison, 143 Mo. l. c. 491, 492.] Properly considered, tbe evidence on this issue shows .nothing save payment of taxes, an entry under color of title and partial improvement of wild land without tbe knowledge of tbe record owner. Tbe possession might have ripened into title by limitation in due time but that period bad not elapsed. Failure to pay taxes does not, of itself, constitute abandonment of title or of property. There was no evidence which would justify a judgment for defendant on tbe plea of laches. There was no evidence supporting any defense made, and tbe judgment is reversed and tbe cause remanded with directions to tbe trial court to enter judgment for plaintiffs, giving defendants a lien for taxes paid as tbe petition offers. In a subsequent statutory proceeding (E. 8. 1909, sec. 2401 et seq.) defendants’ — 515 — right to recover for improvements may be tested. [Dameron v. Jamison, supra.] Brown, C., concurs. PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court. Woodson, P. J., and Lamm and Graves, J'J., concur. Bond, J., concurs in the result.