Pullen v. Hart

• Citation: 293 Mo. 61,238 S.W. 437
• Decision Date: 19 December 1921
• Docket Number: No. 21501.,21501.
• Parties: PULLEN, et al. v. HART et al.
• Court: United States State Supreme Court of Missouri

238 S.W. 437

293 Mo. 61

PULLEN, et al. v. HART et al.

No. 21501.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Motion for Rehearing and Motion to Modify Opinion Overruled March 14, 1922.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Timothy Pullen and others against R. B. Hart, Linn Hunter, trustee, and William Hunter. From an interlocutory decree in partition, the last-named defendant appeals. Reversed and remanded, with directions.

Ward & Reeves, of Caruthersville, for appellant.

N. C. Hawkins, Caruthersville, for respondents.

GRAVES, J.

This is a suit in partition. The subject of partition is 80 acres of land in Pemiscot county. The petition is an ordinary one in partition, averring, however, that the plaintiffs are only entitled to one-eighteenth interest each in the lands, which interests had been fixed by judgment in a previous suit. They also averred that partition in kind could not be made without great prejudice to their interests, and asked that the land be sold and the proceeds divided. Defendants, excepting William Hunter, filed a general denial by way of answer. This is the showing made In the appellant's abstract, which governs. The abstract says: "The other defendants filed answer and denied generally all the averments and allegations in plaintiffs' petition." The brief of appellant has a different line of facts as to those answers, `Jut we must follow the abstract. William Hunter answered as follows:

"Comes now the defendant, William Hunter, and, for his special answer herein to plaintiffs' petition, denies that he is a tenant in common with the plaintiffs in and to the lands in question; denies that plaintiff has any right, title, or interest whatever in and to the land in question; denies that the land in question is subject to partition; and states the facts to be that plaintiff has no right, title, interest, or estate in and to said lands, and that said title, and all of it, in and to said land is well vested in this defendant and that the land is not subject to partition here; and further answering, alleges the facts to be that the plaintiffs have no right, title, or interest whatever in and to said land and that the whole title is well vested in the defendant; and, having fully answered, prays to go hence without day and with his costs."

The real issues are raised by this answer. The trial court found and adjudged as follows:

"The court finds that, at the time of the filing of this suit, the plaintiffs, Timothy Pullen, Caroline Reynolds, and Ellen Ransdale, and the defendants, R. B. Hart, Linn Hunter, and Wm. Hunter, were the owners in fee and tenants in common of, in, and to the lands involved in this suit and hereinafter described, and at the time the plaintiffs were the owners of a one-eighteenth undivided interest each therein, and that the defendant R. B. Hart was the owner of the fifteen-eighteenths undivided interests therein, that the defendant R. B. Hart, on March 3, 1911, executed and delivered to defendant Linn Hunter, as trustee for the defendant Win. Hunter, beneficiary, his certain deed of trust conveying said lands thereby (and other lands) to secure the payment of the sum of $11,200, which deed of trust is recorded in Book 41, at page 640 of the Deed Records of Pemiscot county, Mo., and is unsatisfied of record, and that the said defendants Linn Hunter and Wm. Hunter were at `Ale time of the filing of this suit the owners of the interest conveyed by said deed of trust.

"The court finds, however, that, since the filing of this suit, the defendant Wm. Hunter claims to have acquired all the right, title, and interest of the defendants R. B. Hart and Linn Hunter in and to said lands, by reason of a certain alleged tax sale and deed made by the sheriff of Pemiscot county on April 12, 1917, to J. W. Mcloarland, and by deed from said McFarland to defendant Wm. Hunter, and that defendant R. B. Hart, in this action by his answer disclaims all right, title, or interest is said lands and defendant Linn Hunter has made no answer whatever.

"The court finds that, at the time of this trial, the plaintiffs and the defendant Wm. Hunter are the owners in fee and the tenants in common of, in, and to said lands described as follows, to wit:

"The east half of the northeast quarter of section 10 in township No. 19 north, range 12 east, in Pemiscot county, Mo., and that the respective interest of said parties are as follows:

"Timothy Pullen, Caroline Reynolds, and Ellen Ransdale a one-eighteenth undivided interest each, and defendant Wm. Hunter fifteen-eighteenths undivided interest and the court further finds that said lands cannot be divided in kind without great prejudice to the owners thereof, and that the same should be sold for a division, and the proceeds thereof divided among the parties in interest as found herein by the court."

Sale was ordered and the proceeds were to be divided as per the terms of this interlocutory decree. From such interlocutory judgment in partition, William Hunter has appealed. Pertinent facts and the points made will be noted in the opinion.

I. Pertinent facts from the bill of exceptions may be thus stated: Plaintiffs offered the following record title: (L) Warranty deed from William Hunter and wife to R. B. Hart, for the land involved here and other lands, said deed bearing date of March 3, 1911. (2) Application of a. B. Hart to the county court of Pemiscot county for a patent of date October 18, 1912, in which application it is averred that one Wm. G. Gray was the purchaser of said land from Pemiscot county, and had paid in full therefor, and that he, the said Hart, had by mesne conveyances acquired the title of Gray, and he prayed that a patent be issued to him. (3) Patent from Pemiscot county to Hart, reciting and confirming the matters set out in the application aforesaid. (4) Deed of trust of date 3d day of March, 1911, from Hart to Linn Hunter, trustee for William Hunter. (5) Judgment in circuit court of Pemiscot county, at February term (on March 11), 1915, wherein Timothy Pullen, Caroline Reynolds, and Ellen Ransdale were plaintiffs, and It. B. Hart was defendant. In this judgment the court found that each plaintiff was entitled to a three-eighteenths interest in the land, but in the judgment proper it is adjudged that they recover of Hart an undivided eleven-eighteenths interest in the land. (6) Interlocutory judgment in partition, in the circuit court of Pemiscot county, in which the present three plaintiffs were plaintiffs, and R. B. Hart, defendant. By this interlocutory decree in partition, the court found the plaintiffs to be entitled to a three-eighteenths interest, and Hart to a fifteen-eighteenths interest in the lands. This case seems to have gone no further than the interlocutory judgment, and the present suit seems to have followed, because the deed of trust aforesaid was discovered. (7) Sheriff's deed under a judgment in a tax suit by Pierce, Collector, v. It. B. Hart, Linn Hunter, William Hunter, Silas L. Cummings, and others, to J. W. McFarland. This tax suit is of date August 25, 1916. The present plaintiffs were named as parties to that suit, but not served personally, while there was a personal service on R. B. Hart and Linn Hunter. There was also an order of publication, which if necessary will be noted later. (8) Quitclaim deed from J. W. McFarland to William Hunter of date April ______, 1917. (9) Judgment in case of R. B. Hart (July term of Pemiscot circuit court, 1917) against these plaintiffs and many others. The court found in this judgment that the present plaintiffs had a three-eighteenths interest in the land, and R. B. Hart had a fifteen-eighteenths interest therein.

The defendant Hunter offered two lines of title, one from the government to him through the county patent obtained by Hart upon the sale to Gray, and a second line said to be offered to demonstrate that plaintiffs had no title. This last line was offered on the theory that the title in plaintiffs' ancestors, Edward and Timothy Pullen, was based on a void tax deed by Peter H. Scott to Hina C. Schult in September, 1883. From these facts the real contentions can be gathered.

II. At the outset we are met with the serious contention of counsel for respondents that this is a suit at law, and, inasmuch as the defendant filed no demurrer to the evidence at the close of the whole case, he thereby admitted that there was a case to go to the trier of the facts, and cannot now question the findings made. This in the face of the fact that defendant did file a demurrer to the evidence at the close of the plaintiffs' case. We shall not stop to consider the question as to whether or not the statutory action in partition is, under the pleadings before us, legal or equitable. Nor will we consider and pass upon the deeper question as to whether or not such statutory proceeding can be such a legal action as to bring it within the strict rules applicable to actions at law generally. We have ruled that certain questions therein are triable by a jury, if demanded. Benoist v. Thomas, 121 Mo. 660, 27 S. W. 609; Gunn v. Thruston, 130 Mo. loc. cit. 348, 32 S. W. 654.

For the purposes of the present point, we shall proceed upon the theory that the rules applicable to actions at law generally apply to this case. This we do without discussing anew the questions, supra. The defendant did file a demurrer to the evidence at the close of plaintiffs' case, and, such being overruled, he put in his own case. Can he now urge that the evidence as a whole shows no case made by plaintiffs? To this we unhesitatingly say Yes. There has been some loose language used in the books about waiving the demurrer by refusing to stand upon it, and by putting it in the evidence for defendant. Some such language appears in the cases cited by respondents, but we prefer to go to the basic ruling upon the question. When we do that, we are forced...