Copeland v. George Yoakum's Adm'r

Decision Date31 July 1866
PartiesPETER COPELAND, Respondent, v. GEORGE YOAKUM'S ADM'R AND MINOR HEIRS, Appellants.
CourtMissouri Supreme Court

Appeal from Polk Circuit Court.

J. S. Phelps, for appellants.

The judgment should have been set aside, because the plaintiff in error at the time of the rendition of the judgment was an infant, and did not appear to the suit by guardian--Powell v. Gott, 13 Mo. 458; Randalls v. Wilson, 24 Mo., 76; Thornton v. Thornton, 27 Mo. 302; Rush v. Rush, 19 Mo. 441. Infants must defend by guardian; they cannot appear by attorney. Plaintiff must see that infant defendants appear by guardian; and if they do not so appear, must have guardian appointed--5 Bac. Abr. 148-9; Bing. on Inf. 123-4; R. C. 1855, p. 1220, § 8.

If judgment shall be reversed as to one, it must be reversed as to all-- Rush v. Rush, 19 Mo. 441; Randalls v. Wilson, 24 Mo. 76; 12 John, 434; 14 John, 417; Grah. Pr. 746, 791.

Judgment against an infant who appears by attorney is error--16 Wend. 48; Randalls v. Wilson, 24 Mo. 76. A decree against an infant not served with process, but who answers by guardian ad litem, set aside on motion because erroneous--Hendricks v. McLean, 18 Mo. 32.

Judgment against an infant who does not appear by guardian will be revoked not only as to the infant, but as to all joined with him--Grah. Prac. 746.

Baker and T. A. Sherwood, for respondent.

The land in this case being conveyed by deed to Yoakum by Copeland, who received a bond from the grantee to re-convey the land on the payment of a sum of money, stamps upon the transaction the character of a mortgage; for a mortgage is nothing more than an ordinary deed with a clause of defeasance, and such defeasance may be contained in or separate from the deed; the form is immaterial--Marshall v. Stewart et al., 17 Ohio, 356; 4 Kent Com. 141 et seq.; Tibeau v. Tibeau, 22 Mo. 77; Wilson v. Drumrrte, 21 Mo. 325. Jennings, the administrator of Yoakum, was therefore the only necessary party in the proceeding to redeem. The heirs of Yoakum were not necessary parties--R. C. 1855, § 4, tit. Mortgages; Riley's Adm'r v. McCord's Adm'r, 21 Mo. 285.

The heirs of Yoakum, not being necessary parties, have no right to complain, as they are not injuriously affected by the decree. Their objections are of a formal character only, not “materially affecting the merits of the action”--R. C. 1855, § 34, p. 1300; Sheppard v. Bank, 15 Mo. 141; Papin v. Massey, 27 Mo. 445; R. C. 1855, Art. IX, Prac. C. C., §§ 6, 19 & 20.

The court below, after final decree, would not have erred in striking out the names of Yoakum's heirs, and that may be done even in this court--§ 20, supra. The decree in this case for money, is against the administrator alone. The motion filed in the Circuit Court asks that the whole decree be set aside. Even if the appellant minor had such an interest as would warrant the setting aside the decree as to her, it would still remain good as to the adults.

The doctrine that a judgment is an entirety, and if irregular as to part of the defendants must be set aside as to all, does not apply to a decree respecting lands. The entirety of a judgment for money has for its basis that each of the judgment defendants is responsible for the whole amount adjudged to be due; but a decree as to land establishes no such joint liability--Enos et al. v. Capps, 12 Ills. 255, and cases cited; Dickerson v. Chrisman, 28 Mo. 134.

If these views are correct, the Circuit Court did not err in overruling the motion to set aside the decree, as that motion, aside from other objections already noticed, asked too much. It is like the case when two defendants, one of whom has good ground for demurring and the other has not, join in a demurrer--Bank v. Young's Adm'r, 35 Mo. 371.

HOLMES, Judge, delivered the opinion of the court.

This was a petition in the nature of a bill in equity to enforce the specific performance of a contract, and to compel the personal representatives of the deceased party to accept satisfaction of a mortgage debt, and to discharge the mortgage and relinquish the possession of the land and property mortgaged, and for an account. The plaintiff had contracted with George Yoakum in his lifetime to build certain mills on the plaintiff's land, and for the purpose of securing full payment according to the contract had conveyed the land, mills and other property to him by an absolute deed, and taken a bond from him in the penalty of $8,000, conditioned for the reconveyance of the property to the plaintiff upon the complete performance of the contract and payment of all sums due thereon. Before this was done, the said George Yoakum departed this life, and the defendant Jennings was appointed his administrator, and took possession of the property. This suit was brought against him as the personal representative of the deceased party, and the minor heirs of the deceased were also made parties defendant, who appeared and answered ...

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14 cases
  • Chance v. Jennings
    • United States
    • Missouri Supreme Court
    • February 12, 1901
    ...with the note and memorandum thereon, amounted to a defeasance, and characterized the transaction in this case as a mortgage. Copeland v. Yoakum, 38 Mo. 349; Sharkey Sharkey, 47 Mo. 543; Bender v. Zimmerman, 122 Mo. 194. These evidences conclusively stamped the transaction as a mortgage. Bo......
  • Watkins v. Greer
    • United States
    • Arkansas Supreme Court
    • June 29, 1889
    ...299; 4 Allen (Mass.), 417; 2 J. J. Marsh. (Ky.), 113; 4 Cal. 97; 18 Ill. 578; 3 Watts (Pa.), 118; 11 Mich. 538. 21 Minn. 520; 22 Mo. 79; 38 Mo. 349; 47 Mo. 543; 17 Sarg. & (Pa.), 70; 24 Tex. 17; 8 Gray (Mass.), 505; 5 Mass. 109; 22 Ind. 427; 34 Vt. 166; 18 Iowa 576; 49 Iowa 487; 49 Wisc., 6......
  • West v. Brison
    • United States
    • Missouri Supreme Court
    • February 24, 1890
  • Morgan v. Morgan
    • United States
    • Missouri Court of Appeals
    • March 24, 1956
    ...supra; Reineman v. Larkin, supra, 121 S.W. loc. cit. 311; Neenan v. City of St. Joseph, supra, 28 S.W. loc. cit. 964; Copeland v. Yoakum's Adm'r, 38 Mo. 349, 353(2); Ex parte Toney, 11 Mo. 661, 663; Weiss v. Coudrey, supra; Creech v. Creech, 10 Mo.App. Since 'in any proceeding against them ......
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