text:
    WILLIAM O. PROCTOR, Appellant, v. JAMES M. NANCE and BARNEY SMITH.
    Division Two,
    May 18, 1909.
    1. TAX DEED: Defendant’s Name: Designated By Initials. Where the title of record was in Robert Lee Hall, a suit, order of publication and judgment against R. L. Hall, and a sheriff’s deed selling and conveying the interest of R. L. Hall, are all void, and do not convey the title to the purchaser, unless the said Hall ratified the sale.
    2. -: -: -: .Void Sale: Ratification: Estoppel: Taking Down Surplus. A void tax sale may be ratified by the land-owner taking down and receipting for the surplus money bid at the tax sale after the taxes and costs were paid. So that where the record showed title in Robert Lee Hall and the suit and judgment were against R. L. Hall, and after the sale the amount bid and paid exceeded the taxes and costs by $4.75, and said surplus was paid into the county treasury and paid out to the mother of said Hall upon R. L. Hall’s written order, the said Robert Lee Hall thereby ratified the said void judgment, and is estopped to deny the validity of the sheriff’s sale and deed; and a purchaser from Robert Lee Hall thereafter with notice is also estopped.
    3. -: Estoppel: Ignorance. Nor is the plea of estoppel unavailing because the said R. L. Hall was an ignorant man and did not appreciate the legal significance of his act. By the very fact of taking down the surplus he must have known that there had been a tax sale, and he cannot because of his ignorance be upheld in taking the money with one hand and claiming the land with the other.
    4. -: -: Refunding Surplus. Nor can the said Hall avoid his ratification of the void judgment and sale by tendering into court the surplus money, in excess of the taxes and costs, applied for by and paid to him after the sale. The rights of the parties were fixed when the sale was ratified.
    5. -: Void Judgment: Ratification: Notice to Assignee. A purchaser, after the tax sale in a suit against R. L. Hall, by a quit-claim deed from Robert Lee Hall, stands in the shoes of said Hall, and if said Hall had ratified said sale by taking down the surplus money bid and paid at the tax sale, and is thereby estopped from disputing the validity of the sheriff’s sale, so is said purchaser. Besides, if the sheriff’s deed had been recorded the subsequent purchaser took with full notice thereof, and even though he did not have actual notice that Hall had taken down the surplus he must be held to have had constructive notice thereof.
    Appeal from Eipley Circuit Court. — Hon. J. G. Sheppard, Judge.
    Aeetemed.

      John Morgan Atkinson for appellant.
    (1) The record title to the land in suit being in the name of Eobert Lee Hall, the admitted common source of title, the sheriff’s deed, order of publication, and taxbill, all being in the name of E. L. Hall are all void; and hence the sheriff’s sale and all proceedings in pursuance thereto were void and did not give the court jurisdiction of Eobert Lee Hall. Spore v. Land Co., 186 Mo. 650 ; Eillingham v. Brown, 187 Mo. 181; Vincent v. Means, 184 Mo. 327; Burkham v. Manewal, 195 Mo. 500; Skelton v. Sacket, 91 Mo. 379; Tnmer v. Gregory, 151 Mo. 100. (2) There is not a single element of an equitable estoppel or an estoppel in pais in this record. 16 Cyc. 726; Bramell v. Adams, 146 Mo. 82; Action v. Dooley, 74 Mo. 63; Blodgett v. Perry, 97 Mo. 263; Taylor v. Zepp, 14 Mo. 488; Bank v. Morgan, 117 U. S. 96; Bloomfield v. Bank, 121 U- S. 121. (3) On the theory that said Hall by receiving said surplus had ratified said illegal sale of his land and that appellant, Proctor, stands in the same position that said Hall would, had he not sold to appellant and brought this suit, and that appellant is now es-topped by what is known as estoppel by ratification, respondents are not entitled to recover, as shown by their admissions in this record. They admit the following facts as pleaded in the amended replication to be true: (1) “that at the time the said Hall authorized the payment of said surplus he had no knowledge or information that the said sale of lands in suit by said sheriff and the order of publication therein were void, and that said' sale did not pass any title from said Hall; (2) that said Hall is an uneducated person and by accepting said surplus did not thereby intend to ratify said illegal sale of valuable tract of land for a mere nominal sum of $4.75; (3) that appellant at the time he bought the land in suit had no knowledge or information that there was any surplus from said sale, or that said Hall had ever authorized the payment of said surplus.” One of the essential elements of an estoppel by ratification is that the person against whom this doctrine is invoked and in accepting the benefits charged, must have known the facts constituting the sale illegal. Austin v. Loring, 63 Mo. 19; Hartman v. Hornsby, 142 Mo. 373; Clyburn v. McLaughlin, 106 Mo. 525; Nanson v. Jacob, 93 Mo. 346; Anderson’s La:w Die., p. 857; Smith v. Bank, 120 Mo. App. 549; Drakley v. Gregg, 8 Wall. 267; Freeman on Judicial Sales, sec. 50; Kleber on Yoid Judicial Sales, see. 473; Brewer v. Nash, 16 R. I. 460; Southard v. Perry, 21 Iowa 492; Pursley v. Hays, 17 Iowa 312;. Test v. Larsh, 76 Ind. 462; Dolarque v. Cress, 71 111. 381; Borden v. Hodges, 154 111. 506; Smith v. Tracy, 36 N. Y. 83; Wilmore v. Stetler, 137 Ind. 132'; San Diego v. Pac. Beach Go., 112 Cal. 63; 2 Bouvier, Law Die., p. 824.

      Thos. F. Lane and Alfred Perkins for respondents.
   GANTT, P. J.

This is a suit brought under section 650, Revised Statutes 1899, to quiet the title to the southwest quarter of the northwest quarter of section 28, township 23, range 3 east, in Ripley county, Missouri.

The defendants were both personally served with 0the writ of summons. The petition alleges that the plaintiff is the owner in fee simple of and claims title to the said forty acres of land, and that the same is not in the actual possession of any person or persons, but is wild and uncultivated; that the defendants claim some title and estate in said real estate, the nature and character of which is unknown to plaintiff and cannot be described except that it is adverse and prejudicial to plaintiff. The prayer was that the court should try, ascertain and determine the title and interest of the plaintiff and of the defendants respectively, and by its decree adjudge the same.

The defendant Smith disclaimed any interest or title in the land. The defendant Nance filed the following amended answer:

“Now at this time comes defendant, and by leave-of court first had and obtained, files his amended answer to plaintiff’s petition, and denies each and every allegation therein contained.
“Further answering defendant says that he is the owner of the land described in said petition in fee simple.
“Further answering defendant says that plaintiff is estopped from setting up or claiming any right, title or interest in or to said land, because at the time he obtained the quitclaim deed under which he claims, signed by Robert Lee Hall, said land had prior thereto been legally sold for delinquent and back taxes, and a sheriff’s deed made and delivered therefor to this defendant; that at the time plaintiff took the quitclaim as aforesaid from Robert Lee Hall, he knew he was the same person mentioned in the proceedings to enforce the State’s lien for delinquent and back taxes, and called in said proceedings R. L. Hall, and that defendant’s sheriff’s deed was recorded in the deed records of Ripley county in Book 5 at page 421, on the 17th day of March, 1905, and that plaintiff took said quitclaim deed for a nominal consideration, and with full notice of all the facts surrounding the making of said sheriff’s deed under which this defendant holds.
“Defendant further says that there was a surplus arising from the sale of the said land by the sheriff under the tax proceedings before mentioned in the sum of $4.75, which was paid over to one Jane Hall upon the order of R. L. Hall,- who Was the same person as Robert Lee Hall, and the same person who was sued in the tax proceedings aforesaid.
“Defendant further says that plaintiff well knew the fact that R. L. Hall or his assigns had received the surplus money arising from the sale aforesaid, when he received the quitclaim deed aforesaid from the said Hall, and then and there knew that the said Hall had recognized the validity of the service and notice in the tax sale, and the judgment and sale thereunder.
“Wherefore defendant prays the court to adjudge, order and decree that the defendant has the full legal and equitable title in and to said land described in plaintiff’s petition, and that plaintiff is forever estopped from setting np or claiming any right, title or interest in or to said land, and for costs of this suit.”

To which plaintiff filed the following replication:

“Now at this day comes the plaintiff, and for his amended reply to the new matter set up in the answer of defendant James M. Nance herein, denies each and every allegation thereof, except those which are hereinafter set ont and specifically admitted.
“Plaintiff further replying admits that there was a surplus of $4.75 derived from the sale of the land in this suit by the sheriff of Ripley county, and that said sum was paid over by said sheriff to the county treasurer and credited by said treasurer to the surplus trust fund of said county, and that said surplus was paid to one Jane Hall on the order of Robert Lee Hall, the grantor under whom the plaintiff claims title; but plaintiff states and avers the fact to be that at the time the said Robert Lee Hall authorized the payment of said surplus he had no knowledge or information that the said sale of land in this suit by said sheriff and the order of publication therein was void, and that said sale did not pass any title from said Hall; that said Hall is an uneducated person and by accepting said surplus did not thereby intend to ratify said illegal sale of a valuable tract of land for a mere nominal sum of $4.75.
“Plaintiff further replying states and avers that at the time he bought the land in suit he had no knowledge or information that there was any surplus from said sale or that said Robert Lee Hall had ever authorized the refund of said surplus, and that neither the said Robert Lee Hall nor this plaintiff should in equity be estopped1 from claiming said land by reason of the refund of said surplus; but this plaintiff for said Robert Lee Hall and himself hereby tenders into court the said surplus of $4.75, being the amount refunded to said Hall as aforesaid, and asks the court to order same paid by tbe clerk of tbis court to tbe county treasurer tbat same may be credited to the surplus trust fund of said county. Plaintiff having fully replied, prays for judgment in accordance with tbe prayer of bis petition.”

On tbe trial it was admitted tbat Robert Lee Hall was and is tbe common source of title to said tract of land. It was then stipulated between counsel for tbe plaintiff and tbe defendant tbat tbe matters pleaded in tbe amended replication were true and. might be considered as evidence in tbe case subject to an objection to tbe relevancy of tbe matters therein stated because they constituted no defense in law and no estoppel.

Plaintiff then introduced a quitclaim deed from Robert Lee Hall to plaintiff of date March 18, 1905, recorded March 30', 1905, in tbe deed records of Ripley county, whereby Robert Lee Hall in consideration of two dollars and other valuable considerations to him paid by plaintiff, tbe receipt of which was acknowledged, remised, released and quitclaimed unto tbe plaintiff tbe said forty acres of land. Plaintiff also made a tender in open court of $4.75, being tbe amount refunded said Robert Lee Hall under tbe tax sale.

Tbe defendants to maintain tbe issues on their part offered and read in evidence a sheriff’s deed of date April 7,1903, and filed for record March 17, 1905, and recorded in book number 5, page 421, of tbe deed records of Ripley county by Neely Moore, sheriff of Ripley county, to James N. Nance, conveying tbe land in controversy.

Tbis deed recited tbe judgment of tbe circuit court of Ripley county of tbe 6th day of December, 1902, in favor of tbe State of Missouri at tbe relation and to tbe use of John H. Nunnelee, collector of tbe revenue of Ripley county, against R. L. Hall, for tbe sum of $30.37, for certain delinquent state, county and special taxes and interest assessed and found by tbe court to be unpaid upon tbe southwest quarter of tbe northwest quarter of section 28, township 23, range 3 east, for the years 1896, 1897, 1898, 1899 and 1900. The said taxes and interest thereon, clerk’s costs, attorney’s fees and collector’s commissions amounted to $30.37, and the court costs of said suit amounted to $22.58, all of which were decreed to be a lien in favor of the State upon said real estate. The deed then recited the issue of a special execution and order of sale on said judgment against said R. L. Hall of date the 3rd day of February, 1903, and a levy of the said execution by the said sheriff on the 30th of February, 1903, upon the said real estate, and the giving of the notice of the time and place of sale as the law directs, and the offering of the said land for sale on the 7th day of April, 1903, at the court house of said county, at the April term, 1903, and that James Nance was the highest bidder for the said real estate for the sum of $74, and that the same was stricken off and sold to said Nance for that sum, in consideration of which the said sheriff assigned, transferred and conveyed said land to the said Nance. The deed was duly acknowledged in open court at the April term, 1903.

To the introduction of this deed the plaintiff objected for the reasons that the deed on its face purported to convey the title of R. L. Hall and not the title of Robert Lee Hall, who was the admitted common source of title, and because the order of publication in the said tax suit was against R. L. Hall while the record title was in the name of Robert Lee Hall, and for the further reason that the deed on file does not set out the taxes separately for each year for which the same was sold.

Plaintiff then offered in evidence the order of publication in the said tax suit, which was directed to R. L. Hall, as defendant, and otherwise was in the usual form and recited that the defendant was a non-resident of the State of Missouri, so that the ordinary process of law could not be served upon him.

The taxbill filed as an exhibit was against R. L. Hall dated August 4, 1902, for the taxes for the years 1896, 1897, 1898, 1899 and 1900', and was in due form except being against R. L. Hall.

At the close of the testimony the plaintiff requested the court to declare that under the law and the evidence the finding must be for the plaintiff and that the facts set out and admitted did not constitute an equitable estoppel, which the court refused to do, but rendered judgment for the defendant. In due time the plaintiff filed his motion for new trial, which was overruled by the court.

I. As it is conceded that Robert Lee Hall was the owner of the land1 in suit and the record title to the said land was in Robert Lee Hall, and plaintiff introduced a quitclaim deed from the said Robert Lee Hall conveying said land to plaintiff in due and regular form, it is at once apparent that this controversy is narrowed down to the effect to be given the sheriff’s deed to the defendant Nance under the judgment for taxes against R. L. Hall. In view of the numerous decisions of this court, beginning with Shelton v. Sackett, 91 Mo. 377, it must be held that the order of publication and the judgment rendered thereon and the sheriff’s deed in pursuance thereof did not convey the title of Robert Lee Hall to the land in suit as the said Hall was designated only as R. L. Hall, unless the said Robert Lee Hall and the plaintiff are estopped by the other facts appearing in the record to be now noticed. [Turner v. Gregory, 151 Mo. 100; Vincent v. Means, 184 Mo. 327; Spore v. Land Co., 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181; Burkham v. Manewal, 195 Mo. 500.]

II. This brings us to the question of estoppel pleaded by the defendant Nance in his answer, and admitted in the reply of the plaintiff.

From these admissions in the pleadings it appears that ont of the purchase money paid by the defendant Nance for said land at the sheriff’s sale, all the taxes were satisfied and all the costs, and that there remained a surplus of $4.75, and this sum the sheriff paid into the county treasury and was credited by the treasurer to the surplus trust fund of said county and afterwards the said R. L. Hall gave his order upon the county treasury for the said sum of $4.75 to Jane Hall, and the same was paid to her by the treasurer and this was all done before the said Robert Lee Hall made his quitclaim deed to the plaintiff in this case for the said land.

The plaintiff in this court is in the same position that Hall, his grantor, would occupy if he had brought the suit. As the defendant’s deed had been duly recorded plaintiff took with full notice thereof, and while he avers in his replication that he had no knowledge that there was any surplus from said sale or that Hall had given the order to Jane Hall for said surplus, he does not deny that he had notice of the defendant’s deed, besides his claim to the land is merely- by virtue of a quitclaim deed and he is not an innocent purchaser without notice.

To obviate the effect of Hall demanding and receiving the surplus of the purchase money paid by the defendant Nance at the sheriff’s sale, plaintiff pleads that Hall at the time he gave the order for said surplus had no knowledge that the sale was void, and that Hall was an uneducated person and did not intend to ratify said sale by receiving said surplus. But the-very character of the transaction of taking the surplus of the sale necessarily advised Hall that his land had been sold and that this was a part of the purchase money paid by the defendant at the execution sale. It carried notice upon its face, or at least was of that unequivocal nature that it put Hall upon inquiry as to the source of that surplus and why it was there in the treasury for him, and it must be held that he had notice that his land had been sold for the taxes under the tax judgment. He had the option to refuse to take down this surplus and bring his action to remove the cloud from his title, or he could ratify the sale even though it was a void judgment, and thereby estop himself from disputing the validity.of the proceedings under which the land had been sold.

In Austin v. Loring, 63 Mo. 19, the judgment was void for want of jurisdiction before the land was sold under the judgment and the defendant demanded and received from the sheriff the surplus of the proceeds of the sale after the satisfaction of tbe judgment. After that, as in this case, he conveyed the land by quitclaim to a third party, and this court, speaking through Wagner J., of that transaction, said: “But no person will be allowed to adopt that part of a transaction which is favorable to him, and reject the rest to the injury of those from whom he derived the benefit. When those who are entitled to avoid a sale adopt and ratify it, equity will estop them from afterwards setting it aside. When a sale of land is made no person can be permitted to receive both the money and the land. And it has been, held, in the application of this principle, that it makes no difference whether the proceedings under which the sale occurs are voidable or wholly void, in consequence of the want of jurisdiction. In 2 Smith’s Lead. Cas. (5 Am. Ed.), p. 662, the author says that when those who are entitled to avoid a sale adopt and ratify it, by receiving the whole or any part of the purchase money, equity will preclude them from setting it aside subsequently for reasons that are too plain for statement. [Stroble v. Smith, 8 Watts 280; Commonwealth v. Shuman’s Adm’rs, 6 Har. 343; Smith v. Warden, 19 Pa. St. 424.] ‘When a sale is made of land,’ said Lewis, J., in Smith v. Warden, ‘no one can be permitted to receive both the money and the land. Even if the vendor possessed no title whatever at the time of the sale, the estoppel would operate upon a title subsequently acquired. It was held by this court, in Commonwealth v. Shuman’s Admr’s, that equitable estoppels of this character apply to infants as well as to adults, to insolvent trustees and guardians as well as to persons acting for themselves, and have place as well when the proceeds arise from a sale by authority of law as when they spring from the act' of the party. A party will not be allowed to indulge in bad faith and make innocent purchasers .the sport of his tricks. When a sale is void the reception of the purchase money renders it valid. [Adlum v. Yard, 1 Rawle 171; Furness v. Ewing, 2 Barr 479.] These principles are founded’ on elevated morals, common honesty and pure good faith, and are co-extensive with the principles of the mischief which they are designed to counteract. Where a party has taken the fruits of a judicial proceeding, he should not afterwards be heard to question it. Though an estoppel may debar the truth in a particular case, yet, as was said by the Supreme Court of the United States in Van Rensselaer v. Kearney (11 How. 326), it imposes silence on the party only when in conscience and honesty he should not be allowed to speak.’ ”

In: this case the defendant Nance had the means of knowing whether the proceedings in the tax ease were valid or void and so far bid at his peril, but he paid his money in good faith, and Hall, with knowledge that the defendant had bought and paid for the land and that this purchase money had gone to the satisfaction of the taxes on the land, demanded and received the surplus from the treasury, and thus must be held to have ratified the sale. The doctrine announced in Austin v. Loring, 63 Mo. 19, has recently been reaffirmed and approved by this court In Banc, at this term of this court, in the case of Cape Girardeau & Thebes Bridge Terminal Railroad Co. v. Southern Illinois & Missouri Bridge Co., 215 Mo. 286.

The attempt of the plaintiff herein to avoid the effect of taking down this surplus and ratifying the sale by tendering back the amount of the surplus into court to be repaid to the county treasury was futile, as the rights of the parties were fixed when the sale was ratified by the demanding and receiving of said surplus by Hall, the grantor for the plaintiff herein. Nor do we think the plea that Hall was an uneducated person and did not intend by receiving the surplus to ratify the sale, can avail the plaintiff in this ease. There is not the slightest pretense that the defendant Nance, or for that matter, any other person, made any false representation to Hall to induce him to accept said surplus, and in the absence of some overreaching of him in this matter his ignorance of the law cannot be allowed to nullify his act in taking a part of the purchase money.

In our opinion thé defendant Nance is entitled to the benefit of this principle of estoppel in this case. The record discloses that he paid $74, which was applied in part to the payment of taxes for five years, which Hall had neglected to pay, and the plaintiff stands in the attitude of having given only two dollars for this tract of land with full knowledge that defendant Nance had bought and paid his money to satisfy said taxes and costs. We think the doctrine announced in Austin v. Loring, supra, is just and equitable and should apply to the facts of this case, and accordingly the judgment of the circuit court is affirmed.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    C. L. KEATON v. ALBERT A. JORNDT et al., Appellants.
    Division Two,
    May 18, 1909.

    1. NON-RESIDENTS: Publication: Sufficiency. The words of the statute (Sec. 2022, R. S. 1889) in reference to the giving of notice by publication to non-resident defendants, namely, “and cannot be served in this State in the manner prescribed in this chapter,” have reference to “a corporation, of another State, kingdom or country,” and not to natural persons who are nonresidents of the State. Nor is it necessary where the defendants are natural persons that the affidavit or allegation, in addition to the words, “that defendants are non-residents of the State of Missouri and that the ordinary process of law cannot be served upon them,” should also include the words “in this State” at the end thereof.
    2. -: -: -: Wrong Given Name. . "Where the title is in Mary A. Lemen and Hattie E. Stone, their true names, a publication to Mollie H. Lemen and Birdie E. Stone is not sufficient notice, and a tax judgment and sale in pursuance thereof, and a sheriff’s deed in which they are named as Mollie H. Lemen and Birdie E. Stone, do not convey the title of said Mary A. or Hattie E.
    3. -: -: -: Middle Name. Where the title, as shown by the will, is in Katie Antoinette Viger, a publication to Katie A. Viger is sufficient. The middle name is, in law, no part of her name.
    4. -: -: -: Widow Designated As Heir. The designation of Carrie E. Thurber in the tax-bill as “widow of Nathan T. Thurber,” and in the caption of the petition and in the affidavit as one of the “heirs at law of Nathan T. Thurber,” , does not invalidate the proceedings against her. The judgment for taxes is against her, and the deed describing her as an “heir of Nathan T. Thurber,” conveyed whatever interest she had in the land.
    5. JUDGMENT AS ENTIRETY: Valid as to Some; invalid as to Others. A judgment in a tax suit may be void and erroneous as to some of the defendants, and regular and valid as to others. And a sale in pursuance thereof conveys the title " of those as to whom it is valid, and does not convey the title or interests of those as to whom it is invalid.

      6. TAX SUIT: Not Assessed Against True Owners. If the tax suit is against the true owners, it does -not matter whether the land was assessed against them or not.
    Appeal from Stoddard Circuit Court. — Eon. J. L. Fort, Judge.
    Reversed (with directions).

      Wammack & Welborn for appellants.
    (1) The affidavit on which the judgment, under which the land was sold for taxes was based, was sufficient. Allen v. Ray, 96 Mo. 542; Combs v. Crabtree, 105 Mo. 292; Harbert v. Durden, 116 Mo. App. 514; Paddock v. Paddock, 91 S. "W. 398. (2) The amendment made in 1889 to what is now Sec. 575, R. S. 1899, should not be held to mean that, in instituting a suit against a non-resident individual by publication, the plaintiff, or some one for him, must allege, in addition to the allegation that such a defendant is a nonresident of the State, the further allegation that he “cannot be served in this State in a manner prescribed in this statute.” Allen v. Ray, supra; Harbert v. Durden, supra; Paddock v. Paddock, supra; Tufts v. Volkening, 122 Mo. 631; Evarts v. Lumber & Mining Co., 193 Mo. 433. (a) In construing a statute, qualifying words and phrases must be confined to the next antecedent, unless the intent of the Legislature appears to have been contrary. 26 Eng. and Am. Ency. Law (2 Ed.), 126. (b) The intent of the Legislature is .the primary object in construing all statutes. State ex rel. v. Hostetter, 137 Mo. 649; Grimes v. Reynolds, 94 Mo. App. 584; 24 Eng. and Am. Ency. Law (2 Ed.), 613. (3) The defendants in the tax suit were named with sufficient accuracy. Cruzen v. Stephens, 123 Mo. 337. (4) The fact, if it be a fact, that the land' was not sold at the sheriff’s sale in the smallest legal sub-' divisions, is a mere irregularity and cannot defeat the sheriff’s deed in this collateral proceeding. Wellshear v. Kelly, 69 Mo. 355; Lems v. Whitten, 112 Mo. 318. (5) The only thing that can he litigated in this action is the question of the merits of the title of respondent and appellants, respectively. And if appellants have shown a superior title to the title which respondent has shown, they are entitled to judgment in their favor. G-raton v. Land & Lumber Co., 189 Mo. 333; Gage v. Cantwell, 191 Mo. 707. (6) A sale of land, under execution, against a person, conveys all the estate which such person has in such land, together with all the incidents thereof. Consequently, the sale of this land against Carrie E. Thurber disposed of all her right and estate therein and cut off her power of disposition, so that the deeds thereafter made by her conveyed no title. Eespondent claims title to the. premises in controversy through such deeds alone. He, therefore, has no title whatever to these lands. 16 Cyc, 639c. (7) The Thurbers and respondent, claiming under them, are estopped from asserting title to this land. Cadematori v. Gauger, 160 Mo. 352; 16 Cyc. 788.

      James E. Reese with Keaton S Keaton for respondent.
    (1) The burden is on the party asserting the validity of the tax sale to show that all. the necessary steps of a good and valid sale were taken. Morton v. Eeeds, 6 Mo. 64; Yankee v. Thompson, 51 Mo. 234; Hopkins v. Scott, 86 Mo. 144; Guffey v. O’Eeilley, 88 Mo. 418; Sullivan v. Donnell, 90 Mo. 276; Gregg v. Jesburg, 113 Mo.-34; Atkerson v. Improvement Co., 125 Mo. 573; Davis v. Evans, 174 Mo. 315; Cooley on Taxation (3 Ed.), p. 955; Blevins v. Smith, 104 Mo. 516; Kries v. L. & L. Co., 121 Mo. App. 190. (2) The petition in the tax suit utterly fails to show any assessment of the land against the owner or any particular person. Nathan T. Thurher was the record owner of the land at the time the assessments were made in 1893-4-5. His warranty deed is dated May 4, 1888, recorded June 5, 1888, book 7, page 495. The tax books show that this land was assessed to Henry H. Bedford, who sold it to Nathan T. Thnrber, as above stated — and said Henry H. Bedford, who was assessed was not the owner at the time of assessment. “The assessment is the basis of the tax. Therefore, if the assessment is void it necessarily follows that the tax is likewise void.” R.S. 1889, secs. 7553, 7555, 7556, 7557, 7559, 7606, 7679. “The sufficiency of the petition to charge defendants with the taxes must be measured by the statutes. ’ ’ State ex rel. v. Thompson, 149 Mo. 444; Stuart v. Ramsey, 196 Mo. 404; City of Hannibal ex rel. v. Bowman, 98 Mo. App. 108; Charter Oak L. & L. Co. v. Bippus, 200'' Mo. 707. The petition simply says that “the assessment for said years were by the- proper officers and as required by law.” But this is a mere legal conclusion of the pleader, not a statement of any fact and not permissible in code pleading. R. S. 1889, see. 2038; Kerr v. Simmons, 82 Mo. 275; Q-erhart v. Peck, 42 Mo. App. 650'. The land was not assessed to Mollie H. Lemen, Katie A. Vigar and Birdie E. Stone or Carrie E. Thurber, wife of Nathan T. Thurber, deceased, nor the heirs of Nathan T. Thurber; Mary A. Leman, Katie Antoinette Viger and, Hattie E. Stone, the daugter of Nathan T. Thurber, who was the owner of the land and living at the time, 1893-4-5, died March 19,1896. None of them were owners. R. S. 1889, secs, 4465, 4513, 4525; Blevins v. Smith, 104 Mo. 593; Bartlett v. Tinsley, 175 Mo. 322; Keeney v. McVoy, 206 Mo. 53. The proceedings in the tax suit were wholly eco parte. There was no service of process, no appearance - of the defendants, no answer', and assuming that defendants were duly served with process by publication,. which is not true, the jurisdiction of the court in the tax suit is measured alone by the statements in the petition, and any judgment outside of the allegations in the petition would be and was absolutely void. Schneider v. Patton, 175 Mo. 722; Eoden v. Helm, 192 Mo. 93; Burke v. Pence, 206 Mo. 335; Black v. Early, 106 S. W. 1023; Charles v. White, 112 S. W- 515. The petition does not set out the relation of the parties as stated in the taxbill. “The petition is perfectly silent on that question.” Davis v. Montgomery, 205 Mo. 282. (3) The court did not err in holding the affidavit for the order of publication and' the publication thereof in the newspaper void and insufficient, for the reason that the said affidavit and publican ion were wholly insufficient and did not comply with tie requirements of the statute at the time. E. S. 1889, sec. 2022. The publication starts out against non-rt sidents and concludes against residents who “cannov.be served with the ordinary process of law in the -e unty in ^hich the suit was brought,” instead of, “cannot bo served with process anywhere or in any county o^ city in this State,” as provided in chap. 33, E. S. 1889. Kelly v. Murdaugh, 184 Mo. 380. (4) The process — order of publication — in the tax suit is absolutely void for the reason that it did not correctly name any owner of the land or any one in privity with the owner or owners. The land had never been assessed to any one named in the tax petition. The statute requires the land to be assessed against the owner, and the "owner must make default before the suit can be maintained against him. Blevins v. Smith, 104 Mo. 589; Blackwell on Tax Titles (5 Ed.), sec. 954; Charter Oak L. & L. Co. v. Bippus, 200 Mo. 688. The designation of parties as owners in the tax bill or in the caption of the petition constitutes no allegation in the petition, and if the judgment goes beyond the allegations actually made in the petition in the tax suit it is void. Charles v. White, supra. Even if Carrie E. Thurber were the widow and devisee of Nathan T. Thurber or Mary A. Leman and Katie Antoinette Yiger and Hattie E. Stone were the children and only heirs at law of Nathan T. Thurber, deceased, and he was the owner in his lifetime, of the land, which he was, there was no such allegation in the petition in the tax suit, and there is no allegation that his daughters inherited the property by decent and distribution. There is no allegation or even hint in the tax decision that their interest as such was to be subjected to the payment of these taxes. Grady v. McKorlde, 57 Mo. 175; Hartman v. Hornsby, 142 Mo. 375. Judgment is void as to such interest. Charles v. White, supra; Davis v. Montgomery, 205 Mo. 282, But none of the daughters of Nathan T. Thurber were sued and the court did not get jurisdiction of their persons at all. In the tax suit they sued Mollie IT. Lemen, instead of Mary A. Leman, Mollie H. instead of Mary A.; Lemen instead of Leman; Katie A. Vigar (as in garfish) instead of Katie Antoinette Yiger; and Birdie E. Stone instead of Hattie E. Stone; not a single one correctly named in the publication, and “the substituted service of process (by publication) is void and valueless as if a blank had been left where the wrong name is inserted.” The middle name of “Antoinette” Viger becomes important and controlling in the name of Katie Antoinette Viger, as it nowhere appears in the petition in any statement or allegation in the tax suit whether Carrie E. Thurber is the mother, sister, wife or daughter of Nathan T. Thurber, nor whether Mollie H. Leman, Katie A. Yigar and Birdie E. Stone are his aunts, sisters, daughters, daughters-in-law, granddaughters, whether ascending or descending heirs. Howard v. Brown, 197 Mo. 36; Campbell v. Johnson, 65 Mo. 439; Powell v. Greenstréet, 95 Mo. 13; Troyer v. Wood, 96 Mo. 478; Evarts v. Lumber & Mining Co., 193 Mo. 449; Burge v. Burge, 94 Mo. App. 26; Young v. Downey, 150 Mo. 328. Neither the petition nor the judgment in the tax suit alleges that Nathan T. Thurber was ever the owner of the land, nor that it was assessed to him, nor that he had made default in the payment of the taxes, nor that it had been assessed to any one mentioned in-the proceedings as owners, who had made default, nor “made any mention of the subject of dower, nor was it at all litigated or drawn in question.” Nor was any fact even remotely hinted in the petition that her dower interest that she holds under the statute that exempts her rights from the prejudicial acts of the husband and the judicial proceedings of creditors and others. Grady v. McKorkle, 57 Mo. 175; Davis v. Green, 102 Mo. 181; Long v. K. C. Stock Yards Co., 107 Mo. 304; Bartlett v. Tinsley, 175 Mo. 322; Keeney v. McVoy, 206 Mo. 64; Blevins v. Smith, 104 Mo. 593. Nor was there any allegation in the petition or proceedings tending to reach any estate of Carrie E. Tburber, or her daughters, and much less the misnamed persons sued in the tax suit as devisees under the will of Nathan T. Tburber, deceased, hence, such estate was not reached by the tax suit and judgment. Hartman v. Hornsby, 142 Mo. 375; Cohe v. Levan, 193 Mo. 253; Freeman on Judgments, sec. 156.

      Note. — Decided March 9, 1909. Motion for rehearing filed; motion sustained, and original opinion modified May 18, 1909.

   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.

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.”

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.

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, 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 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.

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 service 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 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 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.]

ON MOTION FOR REHEARING-.

The original opinion in this case, by which the judgment was affirmed, was filed March 9, 1909.

' Defendants now present their motion for a rehearing, and modification of the judgment, in which the point is made that error was committed by the court in holding that the trial court properly construed the sheriff’s deed void as to all the parties defendant in the tax suit, when the court in the tax proceedings had acquired jurisdiction of some of the parties defendant, and that the deed as to them was and is valid.

Upon reconsideration of this question, we are of the opinion that the point is well taken. As to Mary A. Lemen, misnamed Mollie H. Lemen in the tax proceedings and the deed, and Hattie E. Stone, miscalled Birdie E. Stone, the tax proceedings and deed are void, and the court had no jurisdiction over them, they not having been made parties to the tax suit. As to Mrs. Carrie E. Thurber, we did not intend to hold that the fact that she is designated in the caption of the petition as an beir of Nathan T. Thurber, and in the taxbill as the widow of Nathan T. Thurber, in any way invalidated or affected the proceedings against her or her interest; and whatever interest she may have had in the land, whether as heir, widow or owner, it was liable for the taxes against it. Nor do we think that the fact, that Katie Antoinette Viger is named Katie A. Yigar renders the deed void or in any way invalidates it as against her, as it is well settled that the middle name of a person is no part of his name. Thus, in Corrigan v. Schmidt, 126 Mo. 304, it is ruled that' the omission of the initial letter of the defendant’s middle name in a suit against him does not constitute a misnomer. [Turner v. Gregory, 151 Mo. 100.]

No principle of law is better settled than that a judgment may be void or erroneous as to some of the parties defendant, and regular and valid as to others. In Stevenson v. Black, 168 Mo. l. c. 558, it is said: “Appellants insist that the judgment is wholly void, for the reason that, although it recites that all the defendants were notified' of the pendency of the suit by publication, yet the record shows that the order of publication was addressed only to Mrs. Georgeson and her husband, and that summons was ordered for the Blacks, and there is no return of that summons shown. Respondent concedes that the judgment is void in so far as it purports to affect the interests of the defendants Mary E. and Columbus Black, for the reason above stated, but maintains that it is valid as affecting the title of Mrs. Georgeson who was the real owner, and her husband, the order of publication as to them being entirely regular and duly executed. The contention of the appellants is that the judgment is an entirety, and being void as to some of the defendants is void as to all. The law on that point, however, has been decided by this court contrary to the contention. [Williams v. Hudson, 93 Mo. 524; Boyd v. Ellis, 107 Mo. 394.] In both the cases just cited the judgments in question were for delinquent taxes, as this is, and it was held that though the judgment was void as to one or more defendants, who were not served with process, it was valid as to those who were served, and the sale under execution carried their title. In discussing the case last cited the learned counsel for appellants ask if this court intends to say that, in such case, if the land is owned by four persons, two of whom are served with process and the other two not served, the decree as against all four will carry all the title under the execution sale and sheriff’s deed? These decisions announce no such result. In the hypothesis propounded the interests of the two defendants served with process would be affected, but not those of the two not served. If, therefore, Mrs. Black or Columbus Black had any title to the land in question, it was not affected by the judgment or sheriff’s sale. But whatever right Mrs. Georgeson, before the sheriff’s sale, might have asserted against the Blacks, the purchaser at that sale could assert against them. If before the sheriff’s sale the Blacks had such a right of possession as could have been maintained against Mrs. Georgeson, they had the same right against the purchaser at that sale. This plaintiff holds now the title that Mrs. Georgeson held then, neither more nor less, and Mrs. Black’s interest, if any she had, was not impaired by that sale.”

Nor does it make any difference in this case that the land may not have been assessed to the true owners (Stevenson v. Black, supra), as the tax suit Was against them, and proper under the statute..

Our conclusion is that the motion should be sustained and the judgment modified. The judgment of the circuit court, so far as it affects the title to the interests acquired by the purchase of the interests and estates of Carrie E. Thurber and Katie A. Viger, is reversed, with directions to the circuit court to enter up a judgment for defendants vesting in them the title to the interests and shares of said Carrie E. Thurber and Katie A. Viger in said lands acquired by them by virtue of said sheriff’s deed under said tax judgment, and to enter a further decree in favor of plaintiff for whatever interest he may have acquired by deeds of conveyance in the shares or interests of Mary A. Lemen and Hattie E. Stone. As to what said several interests in said lands are was not determined by the circuit court, and we are not sufficiently advised to determine the same, and hence express no opinion at this time.

All concur.


author: FOX, J.

text:
    HERMAN J. HUISKAMP, C. L. KEATON, W. C. KEATON et al. v. JOHN N. MILLER and ALBERT H. CARTER, Appellants.
    Division Two,
    May 18, 1909.
    NON-RESIDENCE: Sufficient Allegation: Sec. 2022, R. S. 1889. An allegation in the petition, in a tax suit against a natural person, that “the defendant is not a resident of the State of Missouri,” etc., is sufficient to give the court jurisdiction over ine defendant named, if followed by an order of publication in harmony therewith. The allegation need not also contain the additional words “cannot be served in this State in the manner prescribed in this chapter” found in section 2022, Revised Statutes 1889. Those last words modify only the words “a corporation of another State, kingdom or country” immediately preceding them.
    Appeal from Stoddard Circuit Court. — Ron-. J. L. Fort, Judge.
    Reversed and remanded (with directions).

      Wammack & Welborn for appellants.
    (1) The affidavit on which the judgment, under which the land was sold for taxes was based, was sufficient. Allen v. Ray, 96 Mo, 542; Coombs v. Crabtree, 105 Mo. 292; Charles v. Kelley, 120 Mo. 134; Harbert v. Durden, 116 Mo. App. 514; Paddock v. Paddock, 91 S. W. 398. (2) The intent of the Legislature is the primary object in construing all statutes. Grimes v. Reynolds, 94 Mo. App>. 584;-24 Eng. and Am. Ency. Law (2 Ed.), 712. (3) In construing a statute, qualifying words and phrases must be confined to the next antecedent, unless the intent of the Legislature appears to have been contrary. 26 Eng, and Am. Ency. Law (2 Ed.), 613. .

      Keaton & Keaton for respondents.
    The judgment in the tax suit was absolutely void. The plaintiff in the tax suit failed to allege in his petition that defendant was a non-resident of the State of Missouri, and could not be served in this State in the manner prescribed in this chapter. R. S. 1889, sec. 2022; R. S. 189-9, sec. 575; Hedrix v. Hedrix, 103 Mo. App. 40; Tooker v. Leake, 146 Mo. 433; Kelly v. Murdaugh, 184 Mo. 377; Davis v. Montgomery, 205 Mo. 284. fa) The amendment, “and cannot be served in this State in the manner prescribed in this chapter,” is the real and substantial amendment and added a new duty and mandatory requirement on the plaintiff to use diligence to serve the defendant personally with process and to so state in his petition. This new duty was created by the statutory amendment and not theretofore existing or prescribed. This amendment abrogated the prior rule that the simple allegation of non-residence, without an effort to serve defendant personally, would authorize an order of publication. “An affirmative enactment of a new rule implies a negative of whatever is not included, or is different; and if by the language used a thing is limited to be done in a particular form or manner, it includes a negative that it shall not be done otherwise.” Sluder v. Railroad, 189 Mo. 194; State v. Canton, 43 Mo. 53; 26 Am. and Eng. Ency. Law (2 Ed.), 671; Davis v. Montgomery, 205 Mo. 284. (b) The phrase, “or is a corporation of another State, kingdom or country, ’ ’ is the soul and sense of Sec. .742. R. S. 1879, and was transferred and written into Sec. 2022. R. S. 1889, by the amendment of 1889, so as to make it definite and certain that corporations were not overlooked as non-resident defendants. State ex rel. v. Patterson, 207 Mo. 144; State ex rel. v. Wiggins Ferry Co., 208 Mo. 631. (c) By another equally effective rule of construction we may arrive at the same legislative intent. We may eliminate the phrase, “or is a corporation of another State, kingdom or country,” from See. 2022, R. S. 1889, and Sec. 575, R. S. 1899, as surplusage, since Sec. 742, R. S. 1879, and Sec. 2538a, R. S. 1889, and Sec. 1007, R. S. 1899, expresses exactly the same legislative intent. R. .S. 1889, secs. 1989, 6568, 6570; Bingham v. Birmingham, 103 Mo. 348. This has always been, and now is, an approved rule. State v. Beasley, 5 Mo. 91; Keeney v. McYoy, 206 Mo. 65.
   FOX, J.

This suit was brought in Stoddard county, Missouri, by the plaintiffs under the provisions of section 650, Revised Statutes 1899, by which it was sought to have the circuit court of Stoddard county ascertain and determine the estate, title and interest of the plaintiffs and defendants herein respectively, in and to all of the northeast quarter of section 18, township 24, range 12 east, containing one hundred and sixty acres more or less. The petition was in the usual and ordinary form, alleging that the plaintiffs were the owners in fee simple of the real estate described.

The defendants, John N. Miller and Albert H. Carter, filed an answer in which they denied each and every allegation contained in the petition, except the one in which it was alleged that they claimed title to the land described in the petition. Further answering these defendants alleged that they were the owners in fee simple and claimed title to the land involved in this suit. There was also embraced in the answer a plea of the Statute of Limitations, in which it was alleged that the defendants had been in the exclusive, open, continuous, adverse possession, under claim and color of title, to said land for more than ten years prior to the institution of this suit by the plaintiffs, and had regularly paid all taxes levied and assessed against the same, and during all that time, neither the plaintiffs nor any one for them have made any claim of ownership or interest in and to said property.

Upon the trial of this cause it was agreed that Herman J. Huiskamp was the common source of title through whom plaintiffs and defendants claim, and that he acquired title to the premises in controversy June 21, 1870, by warranty deed, which was placed upon record August 5, 1870.

The plaintiff then offered a quitclaim deed from Herman J. Huiskamp and wife to O. L. Keaton and W. C. Keaton, dated October 3, 1905, recorded October 21, 1905, in Book 42, page 35, of the land records of Stoddard county, conveying the lands in controversy.

At this stage of the trial Mr. Keaton, representing the plaintiffs, took a nonsuit as to the northeast quarter of the northeast quarter, the Matless land.

Upon this testimony ■ the plaintiffs rested their case.

The defendants then offered in evidence a sheriff’s deed for taxes from J. R. Barham, sheriff of Stoddard county, Missouri, to Emil Weber, dated September 10, 1890, filed for record September 11, 1890, and recorded in Sheriff’s Deed Book No. 1, page 301, of the land records of Stoddard county, conveying the interest of Herman J. Huiskamp in the west half of the northeast quarter of section 18, township 24, range 12, east.

To the introduction of this deed plaintiffs interposed an objection on the ground that the tax proceedings upon which such deed was based 'were absolutely' void and subject to collateral attach, and for the further reason that the court.had no jurisdiction of the person of the owner of the real estate therein sought to be conveyed, and had no jurisdiction of the subject-matter of said suit. The plaintiffs, in support of said objection, offered the petition in the tax suit by the collector of Stoddard county against Herman J. Huiskamp. The form of this petition is not challenged, except as to the allegation of non-residence of the defendant, therefore it is unnecessary to reproduce in full the petition in such tax suit. The petition contained the following averment as to the residence of the defendant, and. as this entire legal controversy hinges upon that averment it is well that we quote the allegation respecting the non-residence of the defendant. It was averred: “Plaintiff further states that said defendant, Herman J. Huiskamp, is not a resident of the State of Missouri.” In addition to this there was attached to the petition the affidavit of R. P. Owen, attorney for the collector, in which it is stated that the statement in the foregoing petition in regard to defendant being a non-resident is true, to the best of his knowledge and belief; signed, R. P. Owen, and subscribed and sworn to before a proper offioer.

Plaintiffs, in further support, of their objection to the sheriff’s deed, offered the order of publication, which was in the usual form, alleging among other things that the plaintiff comes and files his petition and affidavit, alleging among other things that the defendant is not a resident of the State of Missouri. Following that is the publication as ordered1 by the clerk. There was also introduced the affidavit of the proof of publication by the publisher of a weekly newspaper published in the county of Stoddard and State of Missouri.

Next plaintiffs offered in support of their objection to the sheriff’s deed the judgment in the tax suit. The form of this judgment is not challenged, therefore there is no necessity for a reproduction of it. It was simply the ordinary judgment in a tax proceeding rendered by the circuit court of Stoddard county, Missouri, on March 6,1890, against Herman J. Huiskamp, for taxes on the land involved in this controversy.

Upon this showing the court sustained the objection of plaintiffs to the introduction of the tax deed by the defendants, and said deed was excluded, to which ruling and action of the court the defendants excepted.

The sheriff’s deed which was excluded by the court was in the usual and ordinary form, and there is no challenge on the part of the plaintiffs as to its sufficiency, therefore there is no necessity for incorporating the deed in this statement.

Defendants next offered a sheriff’s deed for taxes from J. R. Barham, sheriff of Stoddard county, Missouri, to C. A. Kitchen, dated September 12, 1890, filed for record July 9, 1891, and recorded in Sheriff’s Deed Book No. 2, at page 2, of the land records of Stoddard county, conveying the interest of Herman J. Huiskamp in the southeast quarter of the northeast quarter of section 18, township 24, range 12 east.

The plaintiffs interposed the same objection to this deed as was made to the other sheriff’s deed indicated in this statement and offered in support of such objection the same testimony — the petition, the order of publication, the affidavit for publication and the proof of publication. These files being the same a,s those heretofore indicated in support of plaintiff’s objection to the sheriff’s deed made to Emil Weber, there is no necessity for making any further reference to such files.

The objection of the plaintiffs to the introduction of this tax deed was sustained and the deed excluded, to which' action of the court the defendants excepted at the time.

This last sheriff’s deed is in the usual and ordinary form and there is no controversy over the form of the deed, hence there is no necessity for incorporating this deed in the statement.

Following these two sheriff’s deeds defendants offered a special warranty deed from 0. A. Kitchen and wife to Miller, Ladd & Co., dated July 6,1891, filed for record July 9,1891, and recorded in book 10, page 575, conveying the southeast quarter of the northeast quarter of section 18, township 24, range 12 east. An objection was interposed to the introduction of this deed on the ground that the grantor had no title and could convey none. The objection of plaintiffs was by the court sustained, to which action of the court the defendants excepted at the time.

Defendants next offered a special warranty deed from Emil Weber, who was single, to Miller, Ladd & Company, dated September 25, 1893, recorded September 26, 1891, in book Y, page 387, conveying the west half of the northeast quarter of section 18, township 24, range 12 east. The same objection was made by the plaintiffs to the introduction of this deed, that is, that the grantor had no title and could convey none, and the objection was by the court sustained, to which action of the court the defendants excepted at the time.

•Finally, defendants offered a quitclaim deed from F. M. Ladd and wife to J. N. Miller and A. TT. Carter, composing the firm of Miller & Carter, dated September 5, 1892, filed for record September 6, 3892, and recorded in book 2, at page 496, conveying the lands in controversy. The same objection was offered to this deed as was made to the immediately two preceding deeds offered in evidence, and the objection was sustained, and the deed excluded, to which action of the court the defendants excepted.

Albert H. Carter, one of the defendants in this cause, was sworn and introduced on the part of the defendants. His testimony was to the effect that he was a member of the firm of Miller, Ladd & Company, which was composed of J. N. Miller, P. M. Ladd and himself. It was a copartnership and was voluntarily dissolved about 1892, by Mr. Ladd withdrawing from the firm. The business thereafter was conducted by Miller and Carter under the firm name of Miller & Carter. This witness testified that he was acquainted with the land in controversy and had known it ever since he and his partner bought it in 1891. There is none of it under fence and none of it in cultivation. He stated that the defendants had a farm adjoining it which had been in cultivation a number of years, and the only use then made of the land in controversy was to take timber off of it from time to time, and use it in connection with the land in cultivation adjoining it. The land in controversy is low, wet, marshy land, not suitable for cultivation until it is drained. This witness further testified that the defendants had paid the taxes on it ever since they bought it, and nobody ever disputed their title until Col. Keaton set up a claim to it about the time he brought this suit. It has been locally known as Miller & Carter land ever since they bought it, and they had it surveyed and kept off trespassers, and exercised all the acts of ownership over it that it was susceptible of, and expected to clear it up as soon as they could get it drained.

Rudolph Weber was also introduced as a witness on the part of the defendants. We shall not undertake to detail his testimony, but it is sufficient to say of it that its tendency is to establish the state of facts as testified to by the defendant Carter.

The defendants requested the court to give certain declarations of law, which in substance declared the law to be that under the testimony introduced the finding of the court should be that the defendants have the legal title to said real estate. These declarations of law were refused.

This cause was submitted to the court upon the testimony as heretofore indicated, whereupon the court took it under advisement, and afterwards on the 16th day of January, 1906, rendered its finding and decree for the plaintiffs, and vested the plaintiffs with the title to such real estate. A timely motion for new trial was filed and by the court overruled. From the judgment and decree rendered in this cause the defendants prosecuted this appeal to this court, and the record is now before us for consideration.

OPINION.

The record in this cause presents for our consideration but one legal proposition. The appellants offered in evidence in the trial court certain tax deeds, executed by the sheriff of Stoddard county, which deeds were executed and delivered by the sheriff in pursuance of sales made upon judgments rendered in a certain tax proceeding by the collector of Stoddard county against Herman J. Huiskamp. Upon objections interposed by respondents those deeds were excluded upon the ground that the order of publication issued by the clerk in vacation based upon certain allegations in the petition filed by the collector, were insufficient to confer jurisdiction upon the trial court in that cause. Defendants properly preserved their exceptions to the action of the court in excluding those deeds, hence it is apparent that the only question with which we are confronted is as to the sufficiency of the allegations of the plaintiff in the tax suit against Huiskamp to authorize the clerk to issue the order of publication. The order of publication recited the allegation in the petition concerning the non-residence of the defendant. The allegation in the petition, the sufficiency of which is challenged by respondents, is as follows: “Plaintiff further states that said defendant, Herman J: Huiskamp, is not a resident of the State of Missouri.” Upon this allegation the clerk in vacation made the order of publication, reciting that the plaintiff by his attorney files his petition and affidavit alleging among other things that the defendant is not a resident of the State of Missouri. Then follows the usual order that said defendant be notified by publication, etc. Upon these disclosures of the record the question is sharply presented by counsel for appellant and respondents as to whether or not under the provisions of the statute in force concerning service by publication at the time the tax suit involved was instituted, the allegations in the petition and the order of publication predicated upon such allegation were sufficient to confer jurisdiction upon the trial court in that tax proceeding.

This proposition was fully discussed and the authorities reviewed by Judge Burgess in the recent case of Keaton v. Jorndt, ante, page 117, and our discussion of it in this case is substantially a repetition of what was said in that case.

In 1889, section 3494, Revised Statutes of 1879, was amended. This amendment was embodied in section 2022, Revised Statutes of 1889, which is now embraced in section 575, Revised Statutes of 1899. Prior to the amendment referred to in 1889, concerning the subject of order of publications, the statute read as follows: “If the plaintiff, or other person for him, shall allege in his 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 usual place of abode in this State, or that they have concealed themselves so that the ordinary process of law can not be served upon them.” Then follows the provision about the court or clerk in vacation making the order of publication. The statute as amended, which is embodied in section 575, supra, reads as follows (the parts of this section which embrace the amendment of the statute of 1889, will be found italicised): “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 can not 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 can not be served upon them.” Following this is ■the provision, as in the previous statute referred to, for the issuance of the order of publication by the court or clerk in vacation.

The insistence of the respondents in this case is that the allegation in the petition that a part or all of the defendants are non-residents of the State is insufficient, and in order to authorize the issuance of an order of publication either by the court or clerk in vacation that it is essential that the petition or affidavit allege, in addition to the non-residence of the defendants, that they “cannot be served in this State in the manner prescribed in this chapter.” On the other hand the appellants with equal earnestness contend that the terms, “can not be served in this State in the manner prescribed in this chapter,” are applicable alone to the immediately preceding subject, that is, “a corporation of another State, 'kingdom, or country,” and has no application whatever to individual non-resident defendants.

As before stated, tbe trial courts excluded the tax deeds as heretofore indicated on the ground that the allegations in the petition and the order of publication predicated upon it were insufficient to confer jurisdiction upon the trial court in that tax proceeding by-reason of the omission of the terms, in addition to the allegation of the non-residence of the defendant, “can not be served in this State in the manner prescribed by this chapter

After a most careful consideration of all the authorities treating of the subject-matter now under consideration we have reached the conclusion that the trial court committed error in its action excluding the tax deeds offered by the appellants, and the amended statute treating of the subject of orders of publication was erroneously interpreted by the court. Doubtless the learned trial judge presiding in the trial of this cause 'was simply following the only case by an ap-' pellate court in this State which had in judgment before it this identical proposition. That was the case of Hedrix v. Hedrix, 103 Mo. App. 40. This case was subsequently overruled by the same court in Harbert v. Durden, 116 Mo. App. 512.

In the case last cited counsel directed the court’s attention to the announcement of the rule in Hedrix v. Hedrix, supra, and the court, speaking through Judge Goode, simply stated that the decision in the Hedrix case was an erroneous construction of the statute as to the point involved, and1 expressly overruled that case.

To the same effect was Paddock, v. Paddock, 91 S. W. 398, decided by the Kansas City Court of Appeals. It was ruled in that case that the order of publication was not void on account of the failure of the affidavit to state that the ordinary process- of law could not be served upon the defendant in this State. This ruling was made prior to the overruling by the St. Louis Court of Appeals of the case of Hedrix v. Hedrix, therefore it was considered in conflict with the Hedrix case and was certified to this court for final determination.

In Tufts v. Volkening, 122 Mo. 631, while the question involved in this case was not sharply presented or discussed, yet that was a suit by attachment upon the ground that the defendant was a non-resident of this State, and the affidavit for attachment alleged that the plaintiff had good reason to believe and did believe that the defendant was not a resident of this State. The order of publication was based upon this affidavit. This suit was begun in 1892. At that date the statute concerning orders of publication as amended in 1889 was in full force. The question was presented to the court and it was insisted that the court did not have jurisdiction of the subject-matter of the controversy or.the defendant, but both the trial court and the Supreme Court held adversely to such contention. Under the provisions of section 570, chapter 8, Revised Statutes of 1889, it was fully recognized that there were many foreign corporations doing business in this State in pursuance of licenses issued to such corporations for such purposes. ' These corporations doing business in this State were usually represented by agents or officers having charge and supervision of such business, and section 570, supra, fully provided for the service of process upon such corporations, by delivering the process to any official or agent of such corporation in charge of any office or place of business.

It will be observed that this section as amended embraces two classes, first, that the petition or affidavit shall state that part or all of the defendants are non-residents of the State. That provision embraces individual defendants. Then follows the provision which requires the affidavit or petition to state (if the defendant is a corporation) that it is a corporation of another State, kingdom or country and can not be served in this State in the manner prescribed in this chapter. In our opinion, the terms can not be served in this State in the manner prescribed in this chapter have reference alone to a corporation of another State, kingdom or country. This amendment fully recognized that there was a class of corporations of other States doing business in this State represented by agents or officers in charge of such business, that could be served with process in the mode pointed out by section 570, supra, and to that end that erroneous orders of publication might not issue against corporations of another State, kingdom or country, doing business in this State represented by agents or officers in charge of such business, the additional statement was required to be made as to corporations doing business in another State, kingdom or country, that they can not be served in this State in the manner prescribed in this chapter, or in other words, that they are corporations, but they can not be served in the manner prescribed by section 570, supra.

A party litigant seeking an order of publication against a corporation will find no difficulty in ascertaining as to whether the corporation is doing business in this State represented by an agent or officer in charge of such business, and in order to avoid the issuance of orders of publication against corporations doing business in this State represented by agents and officers in charge of such business this amendment requires that the plaintiff shall not only allege that it is a corporation of another State, kingdom or country, but shall also allege that it can not be served in this State in the manner prescribed in this chapter, or in effect can not be served in the manner prescribed by section 570. But as applicable to individual defendants wh'Oi are non-residents of this State, this amendment, in our opinion, never contemplated that the plaintiff should, in addition to alleging non-residence of the State, state that service can not be had in this State in the manner prescribed in this chapter. Oaths administered to parties in legal controversies are not mere matters of form, and there is usually no difficulty in determining as to whether a defendant is a resident or a non-resident of this State, but when parties are called upon to ascertain whether or not a non-resident of this State is not to be found temporarily within the borders of this great commonwealth, or required to make an affidavit that such parties can not be served in this State in the manner prescribed in this chapter, we apprehend that litigants who seek orders of publication against individual non-residents of the State would have great difficulty in settling in their own minds the state of facts to which they are frequently called upon to swear, that would authorize the court in term time or the clerk in vacation to issue an order of publication. Clearly it was never contemplated by the lawmaking power of this State, as applicable to individual defendants, that in order for a party litigant to secure an order of publication, it was essential, in addition to the allegation of non-residence, to make the statement that the individual defendant or defendants could not be served in this State in the manner prescribed in the chapter treating of orders of publication.

Learned counsel for respondents direct our attention to the cases of Harness v. Cravens, 126 Mo. 233; Tooker v. Leake, 146 Mo. 419; Kelly v. Murdagh, 184 Mo. 377; Davis v. Montgomery, 205 Mo. 271, and Moss v. Fitch, 212 Mo. 484.

A careful examination of those cases will demonstrate that they fall far short of supporting the contentions of the respondents upon the controverted legal propositions now under consideration.

In Harness v. Cravens, the petition alleges the non-residence of the defendant, and so did the accompanying affidavit, but as was recited in that case, instead of taking out an order of publication before the clerk in vacation, as authorized by section 2022, Revised Statutes of 1889, a summons was issued to Harness returnable to the next November term. That summons was returned non est, October 25, 1889. The order of publication as issued in that ca.se was based on that return. Now, it will be observed in that case, and it was so ruled, that the order of publication was a clear departure from the allegations of the petition and the affidavit, and it will be noted that the allegations of the petition and the affidavit simply alleged the non-residence of the defendant, but the order of publication was not issued, as the court clearly intimates that it could have been issued, upon the allegations in the petition and affidavit but was issued upon the summons which had been issued against, presumably, a resident defendant, and the court said in that case: “So we have here presented a defendant. sued as a non-resident, summons issued against him as a resident, and publication issued against him as a resident who could not he found.”. Clearly that case has no application to the legal propositions now under consideration.

In the case of Tooker v. Leake, the record discloses •that there was no allegation or affidavit of non-residence upon which the order of publication could rest, and it was ruled by the court that in consequence of the absence of such allegation of non-residence there was no authority whatever for an order of publication under section 2022, which embraced the amendment heretofore referred to. The record in that case further discloses that while there was a non est return upon which an order of publication might have been predicated under the provisions of section 2024, Revised Statutes 1889, yet it appearing upon the face of the record that the order of publication was not issued upon the ground provided for in section 2024, but upon the ground of non-residence, as provided in section 2022, hence it was held that the order, of publication as made was without any authority of law.

To the same effect was Kelly v. Murdagh. The petition in that case recited that the defendants were non-residents of the State. Upon the filing of the petition there was an order of publication made by the court reciting that it appearing to the court that the defendants “can not be found in the city of St. Louis and the court being satisfied that the ordinary process of law can not be served upon them, it. is ordered by the court that said defendants be notified,” etc., by publication. This court, speaking through Judge Vat/TiTant, clearly pointed out the distinction between orders of publication addressed to residents who can not be found by the sheriff and publications addressed to non-residents, and it was ruled that one could not be substituted for the other. It was expressly ruled in that case that the court had no authority to make the order it did make based upon the alleged finding that the defendants could not be found, for such order could only be made after summons had been issued and returned by the sheriff that he could not find the defendants. The sheriff’s return might or might not have been satisfactory evidence to the court that the defendants could not be found, but it was necessary before the court could go into the investigation. It was suggested in that case that the order of publication could or should have been made an order of publication against the defendants as non-residents, but the court in treating of this suggestion, said: “It does not help the judgment in this tax suit to say that on the face of the petition the court could or should have made an order of publication against the defendants as non-residents, because we are to judge the case, not by what the court should have done, but by what it in fact did. And it makes no difference that the order which the newspaper actually published was the order which the court ought to have made, because the newspaper could not take the place of the court, or correct its errors.” Clearly that case furnishes no support to the contentions of the respondents in the case at bar.

In Davis v. Montgomery, the proposition in judgment before the court was entirely unlike the question presented in the case at‘bar. In that case there was presented the question as to the sufficiency of the allegations in the petition to authorize the issuance of an order of publication against unknown parties to suits instituted in the circuit courts of this State. The statute which prescribes how service shall be made upon unknown parties to suits instituted in the circuit courts of this State, provides: “If any plaintiff shall allege in his petition, under oath, that there are, or that he verily believes there are persons interested in the subject-matter of the petition, whose names he can not insert therein because they are unknown to him, and shall describe the interest of such persons, and how derived, so far as his knowledge extends, the court, or the judge or clerk thereof in vacation, shall make an order as in case of non-residents, reciting moreover all allegations in relation to the interest of such unknown parties.” [R. S. 1899, sec. 580.] It was held in that case that the section of the statute not only required the plaintiff to allege in the petition that there are others besides those named who were interested in the subject-matter of the suit, but it also expressly commands that a description of their interest in and to the land shall be stated, as well as how they acquired that interest. The final conclusion was announced that the failure to describe in the petition the interest of the unknown heirs and how they derived that interest was fatal to the suit, and that the order of publication which followed the allegations in the petition was insufficient. Manifestly that case by no means has any application to the legal proposition confronting the court in the case at bar.

Learned counsel for respondents cite the case of Moss v. Fitch, and insist that the case of Hedrix v. Hedrix, 103 Mo. App., is approved in that case. An examination of the case of Moss v. Fitch will demonstrate that the case of Hedrix v. Hedrix is cited and approved upon another proposition involved in the Hedrix case, hut makes no reference whatever to the question presented in the case at bar. The Hedrix case had in judgment before it the question as to the proper interpretation, not only of section 575, but as well section 582, and the Fitch case, to which counsel so earnestly invite our attention, quoted with approval the discussion of the Court of Appeals as to the correct interpretation of section 582. The Court of Appeals in discussing that section had under consideration an entirely different proposition to the case at bar. They were confronted with the question concerning the rendering of personal judgments based upon service of process on defendants beyond boundaries of the State of Missouri, hence it is manifest that the reference to the Hedrix case by this court in Moss v. Fitch can not be distorted into an approval of the interpretation by that court of section 575, and furnishes no authority in support of the contention of the respondent upon the proposition now under consideration.

We see no necessity for pursuing the subject further. We have indicated our views upon the only legal proposition disclosed by the record, which results in the conclusion that the judgment of the trial court should be reversed. It is therefore ordered that the judgment of the trial court be reversed and the cause remanded with directions to enter judgment and decree in favor of the appellants.

All concur.