Fortune v. Fife
| Decision Date | 15 June 1891 |
| Citation | 16 S.W. 687,105 Mo. 433 |
| Parties | Fortune et al., Plaintiffs in Error, v. Fife |
| Court | Missouri Supreme Court |
Error to Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.
Affirmed.
James F. Pitt for plaintiffs in error.
(1) Payment of the purchase money to the guardian was unauthorized. The statute, Revised Statutes, 1855, section 35, page 1116, provides that the sheriff "shall" collect the money and make the deed. He must sue in his own name (Wiley v. Roberts, 27 Mo. 388), and a payment made as in this case, without his consent, would be no defense. Rogers went into possession under a contract of purchase. Stewart v. Garvin, 31 Mo. 36; Tull v David, 45 Mo. 447. And, until full payment of the purchase money, he could not assert an adverse possession. Ridgeway v. Holiday, 59 Mo. 453; Adair v Adair, 78 Mo. 630. If a guardian may put the statute in motion so as to eventuate the legal title, then the sheriff's power, to say the least of it, is subordinate and his failure or refusal to act immaterial, provided the guardian will transfer the title by limitation. Johnson v. Noble, 24 Mo. 253. This method of changing a minor's real estate into money is statutory (Gudgell v. Mead, 8 Mo. 54; Waugh v. Blumenthal, 28 Mo. 464), and a species of condemnation proceedings. Implications are not indulged. Gray v. Railroad, 81 Mo. 135. The testimony not tending to affect the legal title was incompetent for any purpose. (2) The sheriff's deed was improperly admitted, the cotenant having no notice. Warfield v. Lindall, 30 Mo. 282; Culver v. Rhodes, 87 N.Y. 348. (3) Defendant's first instruction is erroneous for three reasons: First. It directs a verdict upon an entry in 1860, and ten years' possession from that time, at which time Mary was five years old. Reisse v. Clarenbach, 61 Mo. 310; Gray v. Yates, 67 Mo. 601. Second. It tells the jury that Rogers, entering as a purchaser, might at once set up an adverse claim. Crumb v. Wright, 97 Mo. 18. Third. It declares that if, for ten years from 1860, "Rogers and those claiming under him did and performed such overt and notorious acts in and about said land, and the title thereto, as by their import were calculated to impart notice to plaintiff that Rogers was claiming the exclusive title, if she had used ordinary diligence in attending to her own interests, then the jury must find for defendant." (4) Defendant's second instruction was not supported. In 1872 the constructive possession of each lot purchaser was that of his title, a half interest, and for about ten years, until after 1880, this property was vacant. Harrison v. Cachelin, 27 Mo. 26. Besides, it is the law as between strangers. (5) Defendant's third instruction was misleading. That the devisee in McCauley's will was the wife of the plaintiff, was undisputed. The fourth ought not to have been given because it referred solely to the possession of Rogers prior to 1872. (6) The verdict was against the law and the evidence. Long v. McDow, 87 Mo. 197.
D. D. Burnes, S. S. Brown, Vinton Pike and H. K. White for defendant in error.
(1) Upon the theory adopted by the court below as to the effect of the sale in partition, the instructions given were correct, and, a verdict having been rendered in defendant's favor, it should not now be set aside. Warfield v. Lindell, 30 Mo. 282; Warfield v. Lindell, 38 Mo. 561; LaPeyre v. Paul, 47 Mo. 586. (2) The partition proceedings were the acts of the parties thereto, and the sale was a judicial sale. This sale, and the confirmation thereof, terminated the tenancy in common, and thereafter the possession of M. Rogers was that of any other purchaser adverse to the female plaintiff, and, therefore, the instructions required more of defendant than should have been required; but this is not an error prejudicial to plaintiff. Peutz v. Kreuster, 41 Mo. 450; Halleck v. Guy, 9 Cal. 197; S. C., 70 Am. Dec. 643; Goudy v. Shanks, 8 Ohio 412. (3) The report of sale and its confirmation constitute color of title which would give M. Rogers title by ten years' adverse possession, subject only to plaintiff's right to bring her suit for possession within three years after attaining her majority. Gray v. Yates, 67 Mo. 601; Crispen v. Hannavan, 50 Mo. 536; Field v. Boynton, 33 Ga. 239; Watts v. Smith, 19 Geo. 12. (4) M. Rogers, being the true owner of the property, his platting the property, and other acts in 1871 and afterwards, did not amount to a discontinuance of his possession. This remained in him and his alienees constructively, so that the female plaintiff might have brought suit upon attaining her majority. Crispen v. Hannavan, 50 Mo. 536. (5) The case admits that plaintiff would have no standing in court if the sheriff's deed contained the recital that the business had been transferred to the sheriff who made the deed. It is not objected that such order was not made. If the order had been made, it was the duty of the succeeding sheriff to make the deed. It must be inferred that it was made; otherwise the court on September 27, 1867, would not have ordered Fish to make the deed. The deed of Fish being in evidence, the defendant is entitled to its legal effect, which is the only question to be determined respecting it. Bartle v. O'Donoghue, 72 Mo. 563. (6) The failure to show on the face of the deed the order transferring the unfinished business to Sheriff Fish did not make it void, and the instruction is erroneous if there was any evidence, direct or presumptive, that the order was made. Henry v. McKerlie, 78 Mo. 433. (7) If Sheriff Morgan died before making the deed, or for any reason could not make it, the court had power to compel his successor to make it, and the order read in evidence was a regular and valid exercise of that power. People v. Boring, 8 Cal. 406; Kruse v. Wilson, 79 Ill. 239. (8) The confirmation of the sale completed the rights and titles of the parties. Without a deed the sale and confirmation are sufficient to defeat a recovery in ejectment. Babb v. Barnum, 59 Mo. 399; Long v. Joplin, 68 Mo. 422; Henry v. McKerlie, 78 Mo. 416; Gilbert v. Cooksey, 69 Mo. 42; Snider v. Coleman, 72 Mo. 568; Exendine v. Morris, 76 Mo. 416; Grayson v. Weddle, 63 Mo. 523; Price v. Association, 101 Mo. 107. (9) The final judgment in the partition suit was just as binding upon the parties as a judgment in any other case. Hart v. Steedman, 98 Mo. 456.
This is an action in ejectment to recover a lot in the city of St. Joseph, commenced in the Buchanan circuit court on the eighteenth day of August, 1887. Verdict and judgment for defendant. The cause is brought here by plaintiff on writ of error.
In 1858 the plaintiff, Mary E. Fortune, and her mother, Margaret McCauley, under the will of Thomas McCauley, who died in that year, became seized in fee as tenants in common of a tract of land including the premises in controversy. Afterwards, in the same year, Mrs. McCauley sold and conveyed her interest in the land to Michael Rogers. In 1859 Rogers instituted suit against the said Mary E., then a minor, for partition of said land. The court appointed a guardian ad litem, who answered for her, and the cause coming on to be heard on the first of October, 1859, a decree of partition was made, and commissioners appointed. At the next term the commissioners reported the land not susceptible of division in kind, and thereupon, on the ninth of January, 1860, the report of the commissioners was approved and the land ordered to be sold. The sale was made, and the report of the sheriff was approved on the fourteenth of April, 1860. Rogers became the purchaser, and immediately went into possession of the tract, and thereafter, until 1872, continued in the exclusive possession thereof, claiming it as his own. He received no deed for the land, however, from the sheriff (Morgan), who made the sale, or his successor until 1867. At the March term of that year an order was made by the court in the partition cause directing the then sheriff (Fish) to execute and deliver to Rogers a deed for the land sold to him by Morgan in 1860. And on the twenty-seventh day of September, 1867, Fish, as sheriff, executed the deed in pursuance of such order.
The original papers in the case were destroyed by fire at the burning of the courthouse in 1884. In 1872, Rogers subdivided the land into lots and blocks, called the same "Roger's addition to the city of St. Joseph," executed, acknowledged and filed a plat thereof and sold the lots in dispute at public auction. Chas. B. Wilkerson became the purchaser of the lot in dispute, and received a deed from Rogers therefor. Defendant's lessor acquired Roger's title through mesne conveyances from Wilkerson, and was in possession when this suit was brought.
The court held, and so instructed the jury, that the deed made by Fish, as sheriff, to Rogers, showing that the sale therein recited was made by Morgan, sheriff, in 1860, and failing to recite an order of court transferring the unfinished business of the partition proceeding therein mentioned to the next sheriff, or to said Fish, said deed is void on its face insufficient to convey any title to said Rogers, and is no evidence of the facts therein recited. After so holding the court submitted the question of Roger's title by...
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