Schneiderheinze v. Berg, 269 Mo. 263 (Mo. 1916)

BOND, J.

I. Plaintiff, on September 6, 1911, sued defendants under section 2535 of the statutes to recover a one-half interest in seventy-seven and one-half acres of land in Warren County. Judgment was rendered against plaintiff from which she prosecuted an appeal to this court.

Statement. Thé evidence disclosed that in the year 1862 George Berg died testate; that under paragraph two of his will he devised the land in controversy to his son Gottlieb Berg on condition that he should pay into the hands of the executor named in the will, within twelve months, the sum of one thousand dollars. This money . , , .. , . ... was paid by the devisee, whereupon the executor executed a deed conveying the land to him as devised in the will. This deed was duly recorded in 1863. The grantee took possession of the land as owner, and at his death, in 1909, devised the property to Gus

tavus Berg on condition of his paying into the estate of Gottlieb Berg the sum of five thousand dollars. During the lifetime of Gottlieb Berg, to-wit, on November 10, 1875, he and one Charles Mittler signed as sureties a promissory note payable to the plaintiff six months thereafter, under her maiden name of Sybilla Keuchlin; that on March 25, 1879, plaintiff brought an action against the two sureties for the amount due on said note. The summons issued in this suit bore the following return of the officer executing it:

The defendants having made default, at the next term of the court plaintiff took judgment for the amount due on said note and, thereafter, at the same term of court, without any notice to the defaulting defendants, procured the setting aside of said judgment and the rendition of a second judgment, May 9, 1879.

This judgment is in the name of Sibyla Kreuchlin. No action was taken by the plaintiff to enforce this judgment until July 3, 1888, when an execution was issued thereon, whereunder the land in controversy was sold to plaintiff and one J. 0. Fisher, at and for the sum of one hundred and fifty dollars, whereupon the sheriff of the county executed a deed to Sybilla Schneiderheinze (plaintiff having married in the meantime) and J. C. Fisher, dated December 3, 1888, which was duly recorded except that the seal of the court was not affixed by the clerk to his certificate of the acknowledgment of the deed. Twenty-three years after plaintiff’s obtention of this deed, the whole of which period the land was in the adverse possession of defendants or their ancestor, the present action was begun. Shortly

before this suit Fisher, the co-grantee in the sheriff’s • deed, quitclaimed his interest to defendants for five hundred dollars, accompanying it with an affidavit that he owned any and all interest which plaintiff acquired under the sheriff’s deed.

The evidence showed that Gottlieb Berg used the land in his lifetime as a homestead for himself and family.

'nr<NameitieS and Deed. II. In support of the judgment below respondent calls attention to certain subsequent variances in the spelling of plaintiff’s name in the proceedings after the filing of her petition; and also to the fact that when plaintiff obtained the second judgment a^er the vacation of the first, no notice was given to either, of the defendants, and to the language of the sheriff’s return on the original summons against Gottlieb Berg.

There is no merit in any of these contentions, nor in the further claim that the record of the sheriff’s deed was inadmissible (the original having been lost) because of the failure of the recorder of deeds to transcribe on his books the seal of the court to the certificate of the clerk that the deed had been duly acknowledged. This “farrago of irregularities” is unavailable as attacking the validity of the title devolved on plaintiff under her suit to recover the amount of the note, for the reason that if the court in that case was possessed of jurisdiction of the persons of the defendants and the subject-matter of the cause of.action, then none of its proceedings are open to the collateral attack attempted to be made in the instant ease. [Rivard v. Railroad, 257 Mo. l. c. 168; Lovitt v. Russell, 138 Mo. l. c. 482.]

Service of Process. It follows that the only inquiry on this appeal is whether the court acquired jurisdiction of the person of Gottlieb Berg, the ancestor of defendants, through the return of service of process made by the sheriff, which is quoted above.

It is erroneously stated in the brief of respondent that the sufficiency of this return must be judged by

the provisions of the General Statutes of Missouri of 1865, chapter *16áf* section 7, which, with reference to service of process upon several defendants, provides as to those who are summoned subsequently to the first defendant, that the service must be made in case such later defendants are not found, by leaving a copy of the writ at the usual place of abode of the defendant with some (white) person of his family over the age of fifteen years. [G. S. 1865, sec. 7, ch. 164.]

That statute was ■ repealed by the substitution of another mode of service upon such defendants in Laws 1875, p. 105, where it will, be seen the word “white” is stricken out. This act of 1875 took effect from and after passage and was in full force and vigor when the sheriff made his return on March 27, 1879, in' strict conformity with the statute then regulating the servicé of process in such cases. This substitutionary statute was evidently overlooked by the learned counsel for respondent. We, therefore, conclude that the court was in possession of jurisdiction of the person of Gottlieb Berg, through the above quoted return of the sheriff at the time plaintiff commenced her suit and recovered her judgment.

Limitations. III. It is further contended by respondent in support of the present judgment that the bar of the Statute of Limitations attached. This is a misconception of the law. The statute expressly provides, in case Q£ a married woman suing to recovér her lands, that the bar does not become absolute until after the lapse of twenty-four years. [R. S. 1909, sec. 1881; Graham v. Ketchum, 192 Mo. 15.] In this case the evidence is undisputed that the plaintiff was a married woman at the time she obtained the sheriff’s deed to the land in controversy and remained so to the date of the trial, and that the suit was begun within twenty-four years after the sheriff’s deed to her.

IV. The next contention of the learned counsel for defendants is that the sale is void because the land in

Homestead.

question was used by the ancestor of the defendants as a homestead. There is no merit in this contention.

The land was acquired not by deed, but ^ev^se unc[er a wi]i; ancl the rule in this

State prior to 1887 was that the homestead was exempt from any indebtedness sought to bq enforced against it which arose after the filing for record of the deed creating the estate; but was not protected against such indebtedness if the homestead was acquired by a will or by descent cast. [Laws 1887, pp. 197, 198; Clark v. Thias, 173 Mo. l. c. 648; Spratt v. Early, 169 Mo. l. c. 368; Loring v. Groomer, 142 Mo. 1.]

In this case the title of defendants’ ancestor accrued through a devise in the will of his father, he took nothing under the deed of the executor who had neither title nor pownr to convey under the will. [Barnard v. Keathley, 230 Mo. l. c. 227; Thorp v. Miller, 137 Mo. l. c. 239; Sturgeon,, v. Schaumburg, 40 Mo. l. c. 483.]

It follows, in this case that the judgment was erroneous. It is, therefore, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

All concur.