Hogan v. Smith , 1881 Mo. App. LEXIS 50 ( 1881 )

Bakewell, J.,

delivered the opinion of the court.

This is an action of ejectment. The cause was tried by the court, a jury being waived. There was a finding and judgment for defendants.

It appears that Michael A. Hogan died owning real estate in St. Louis, and leaving a widow, the plaintiff, and seven children. The property in controversy was set apart to the widow in partition as dower. At the October term, 1878, the tax collector brought suit against Alice Hogan as owner, and the city of St. Louis as holder, of a lien on the property to enforce payment of delinquent taxes for 1876. Judgment was rendered in this proceeding for taxes and costs, and the property ordered to be sold. Defendant, James A. Smith, bought at this sale under the execution, and the sheriff executed to him a deed for the property. Smith brought ejectment against Alice Hogan, obtained judgment, and was put in possession.

This suit was begun in 1880. Plaintiff introduced the proceedings in partition, the commissioner’s deed to her, and showed that the children of Hogan, deceased, were alive when the tax-suit was begun. Defendant offered the sheriff’s deed to him, and the record and judgment in the former proceeding in ejectment, and these were admitted against plaintiff’s objection.

Defendant contends that the first judgment in ejectment was conclusive between the parties. At common law such a judgment was never conclusive as to the title of either party. Its only effect was to put plaintiff in possession according to his right and title in the premises. Either party might bring a new action. And so it has always been held in Missouri. The judgment in ejectment is not a bar, though the parties, titles, and defences are the same. There seems to be a dictum of Judge Adams to the contrary, in Foster v. Evans (51 Mo. 39), to which defendant refers. But the law as to this is well settled. Dunn v. Miller, 8 Mo. App. 467; Kimmel v. Benna, 70 Mo. 52.

The sheriff’s deed was prima facie evidence of title, and that the matters stated in it were true. Rev. Stats., sect. 6839. The deed, however, recites that the proceedings under which the sale to defendant was made, were only against Alice Hogan and the city. It is. contended that the statute contemplates a proceeding against the owner of the fee only ; that the heirs who were remainder-men should have been made parties ; that the sheriff’s deed could not convey the fee, because Alice Hogan, the only owner made a, defendant in the tax-suit, had only a life estate; and, that as the sheriff’s deed could not convey the fee, it conveyed nothing.

The judgment of the circuit court in the tax proceeding was not, however, void. It had jurisdiction, both of the parties and of the subject-matter ; and, though its jurisdiction in these tax proceedings is dependent upon a special statute, its proceedings in the matter are not summary. There is a right of appeal, and the proceedings of the circuit court, under the tax-law, have the characteristics of, and are entitled to. the same consideration as, and attended with the same presumptions which attach to, its action when exercising its ordinary jurisdiction as a court of record. Faulkner v. Guild, 10 Wis. 572; Hahn v. Kelly, 34 Cal. 391; Brown v. Walker, ante, p. 226. That judgment cannot, therefore, be collaterally attacked in this ejectment proceeding. Thé judgment does not affect those who were not parties to it; but so far as Mrs. Hogan, who was a party to it, is concerned, it cannot-, in this proceeding, be attacked by her in a collateral-way. She was served with process, and, if the judgment was irregular, she should have appealed. The statute provides, that the judgment shall decree that the lien of the state shall be enforced and the real estate sold; that the special fieri facias shall command the sheriff to take and sell the property, and that the sheriff shall execute a deed to the purchaser for the property sold. Rev. Stats., sects. 6838, 6839. It appears, therefore, that defendant, as against Mrs. Hogan, is entitled to the possession of this property, and the judgment of the circuit court should be affirmed. Judgment affirmed.

Judge Lewis is absent; Judge Thompson concurs.