Abington v. Townsend
| Decision Date | 16 July 1917 |
| Parties | GEORGE O. ABINGTON v. LOUIS TOWNSEND et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. J. P. Foard, Judge.
Reversed.
Ernest A. Green, Leslie C. Green and Sheppard & Sheppard for appellants.
We deem it unnecessary to point out any specific erroneous rulings of the court as to evidence, as this case is one in equity; and for the further reason that the case will turn upon certain questions of law which, when decided, will also decide the competency and relevancy of certain documentary evidence. But we do not desire to be understood as waiving any point as to the introduction of evidence. (1) The respondents offered in evidence the interlocutory decree rendered on February 8 1911, in the partition case. This evidence was incompetent for any purpose, for the reason that that decree could in no wise affect appellants, because Townsend acquired the land in suit by a deed dated August 3, 1905, more than five years before the decree was entered, and he was not a party or privy to said suit. 23 Cyc. 1280; Koontz v. Kaufman, 31 Mo.App. 409; Henry v. Woods, 77 Mo. 281. The same applies to the introduction of the last interlocutory decree and the final decree and deed in said partition suit. (2) Townsend acquired a good title to the land in suit under the commissioner's deed of October 22, 1903, by reason of the fact that the proceedings were regular. An interlocutory decree of partition was duly rendered, a sale ordered, a sale had, a report of sale made to the court out of which the order for sale issued, and the report of the sale was in all things confirmed and approved by said court. The order of the court approving the sale and ordering deeds made, was a final judgment in said case, from which an appeal could have been but never was, taken; and when once rendered imported absolute verity, and was beyond impeachment except for fraud or want of jurisdiction. Clark v. Sires, 193 Mo 516. A purchaser is required to look only at the judgment, execution, levy and sheriff's deed. Lenox v. Clark, 52 Mo. 115; Childers v. Schantz, 120 Mo. 313. If the execution plaintiff purchases at the execution sale, and the case is afterwards appealed and reversed, his title is gone; but one who purchases from him before the reversal, gets a good title. Vogler v. Montgomery, 54 Mo. 577; Shields v. Powers, 29 Mo. 315; Colburn v. Yantis, 176 Mo. 682; Brown v. Curtiss, 155 Mo.App. 376; Gott v. Powell, 41 Mo. 417; Jones v. Harb, 60 Mo. 362; Smith v. Perkins, 124 Mo. 50. (3) The existence of the corporation or its right to acquire or to convey land cannot be inquired into in a collateral proceeding like this one, but only in a proceeding by the State of Missouri. Finch v. Ullman, 105 Mo. 263; Broadwell v. Merritt, 87 Mo. 101. No title passes in a partition sale until the sale is confirmed by the court. In this instance, the confirmation of the sale took place on October 22nd, -- the sale having occurred on October 12th, -- eight days after the corporation had been born. Hector v. Mann, 225 Mo. 243; Clark v. Sires, 193 Mo. 515; Thomas v. Elliott, 215 Mo. 602; Burden v. Taylor, 124 Mo. 18; Githens v. Barnhill, 184 S.W. 145; 24 Cyc. 33. (4) The fact that this partition sale, occurring October 12, 1903, was set aside several years afterwards in a suit to which Townsend was not a party, did not divest the title out of him, as judgments bind only parties and privies. Koontz v. Kaufman, 31 Mo.App. 409; Henry v. Woods, 77 Mo. 281; Strottman v. Railroad, 228 Mo. 182. (5) The plea of res adjudicata in the replication of respondents cannot be maintained for the reason that Townsend was neither a party nor a privy to the suit. He acquired title prior to the institution of these suits, and was not made a party thereto. Koontz v. Kaufman, 31 Mo.App. 409; Henry v. Woods, 77 Mo. 281; 23 Cyc. 1253. (6) The first sale, under which Townsend claims, occurring on October 12, 1903, confirmation of which was made October 22, 1903, was not void as to the purchaser. No sale is void, except between the parties, where the court has jurisdiction of the subject-matter and the parties. Jones v. Talbot, 9 Mo. 121; Fithian v. Monks, 43 Mo. 502; Harvey v. Tyler, 2 Wall, 328; Coleman v. McAnulty, 16 Mo. 173; Chouteau v. Nuckolls, 20 Mo. 445; Shields v. Powers, 29 Mo. 315; Hendrickson v. Railroad, 34 Mo. 188; Castleman v. Relfe, 50 Mo. 583; McIlwrath v. Hollander, 73 Mo. 105.
David W. Hill and Abington & Phillips for respondent.
(1) The deed was absolutely void (not voidable) and has been so declared by this court, and, hence, the Real Estate & Investment Company acquired absolutely no title to said land. Davidson v. Real Estate & Inv. Co., 226 Mo. 1, 249 Mo. 474. (2) In the answer of the I. M. Davidson Real Estate & Investment Company, filed in the case reported in 249 Mo. 474, the company contended in the circuit court that it had sold the lands in suit to Townsend, and asked the circuit court to ratify that sale and offered to pay into court the money received from the sale of the land to Townsend, and that such sum be partitioned among the parties litigant in proportion to their rights. This the court declined to do, but, to the contrary thereof, ordered the land re-sold and decreed that the money that Townsend and others paid to the Real Estate & Investment Company for lands sold was not the subject of partition. The order to resell the land by the instruction of this court was, in effect, another holding that the sale conducted by Hogg on October 12, 1903, was absolutely and utterly void. Davidson v. Real Estate & Inv. Co., 249 Mo. 474. (3) As stated in the last appeal of the Davidson case, it was urged in the pleadings, proof and argument on behalf of the Real Estate & Investment Company that the land sold to Townsend should be excluded from the second sale, because it had been sold to him before the suit (226 Mo. 1) to set aside the sale had been commenced, but notwithstanding this condition this court (in 249 Mo. 474) ordered the land resold, and this plaintiff, as well as the forty-seven other purchasers at that sale, had a right to rely, and did rely, upon this decision of this court as a rule of property. Lumber Co. v. Craig, 248 Mo. 331; Imp. Co. v. Schneider, 177 S.W. 388. (4) Defendant attempts to defend this case upon the theory that he was a bona-fide purchaser of the land without notice, but the doctrine of bona-fide purchaser without notice does not and cannot apply where there is a total absence of title in the vendor. Tie & Timber Co. v. Railroad, 184 Mo.App. 26; Bird v. Jones, 37 Ark. 195; Compton v. Casada, 54 Ga. 74; John v. Hatfield, 84 Ind. 75; Bank v. Gibson, 60 Neb. 767; Boone v. Chiles, 10 Pet. 177; Arrison v. Harmstead, 2 Pa. St. 191; Schultz v. Carter, Speers' Eq. 533; Robson v. Osborn, 13 Tex. 298; Vattier v. Hinde, 7 Pet. 252; Dillard v. Crocker, Speers' Eq. 20; Hartstock v. Hardware Co., 16 Colo.App. 48; Snelgrove v. Snelgrove, 4 Desauss. Eq. 274; Dupree v. Frank, 39 S.W. 988; Lindbloom v. Rocks, 146 F. 660, 77 C. C. A. 86; Lumber Co. v. Branch, 60 F. 201, 8 C. C. A. 562; Dodge v. Briggs, 27 F. 160; R. Co. v. Rankin, 107 Ark. 487; Winters v. Powell, 180 Ala. 425; Land Co. v. United States, 217 Fed.. 11, 133 C. C. A. 121; 39 Cyc. 1691. (5) It devolved upon defendant to plead and prove his plea of innocent purchaser, which he wholly failed to carry. Young v. Schofield, 132 Mo. 650. (6) The second opinion of this court, holding the sale to the I. M. Davidson Real Estate Investment Company void, unquestionably was right, according to the great weight of evidence, because the grantee was not a person, partnership or corporation at the time of the sale, and was not incorporated until after the sale, which fact was disclosed by the fact of the certificate of incorporation being filed in the recorder's office, and which was constructive notice to Townsend. Sec. 2975, R. S. 1909; Thomas v. Wyatt, 25 Mo. 24; Howard v. Brown, 197 Mo. 48; Furniture Co. v. Crawford, 127 Mo. 356; Dauthitt v. Stinton, 63 Mo. 277; Reinhard v. Milling Co., 107 Mo. 624; Miller v. Rosenberger, 144 Mo. 299; Thomas v. Boener, 25 Mo. 27. (7) Defendant is estopped by his conduct to question the validity of the sale of the land at which plaintiff became the purchaser, because defendant attended that sale and recognized its validity by entering into the competitive bidding with others present to buy the land. Spence v. Renfro, 179 Mo. 417.
This suit was brought under section 2535, Revised Statutes 1909, to determine title to forty acres of land in Butler County; the petition also contains a count in ejectment.
The common source of title, it is admitted, was in I. M. Davidson who died in 1895, leaving a will. In 1901 a partition proceeding was instituted in the Butler Circuit Court by the widow and heirs of I. M. Davidson, the purpose of which was to partition this and other lands left by him. That suit proceeded to judgment, an interlocutory decree of partition was rendered in June, 1903, in which the court found the lands could not be partitioned in kind and ordered them sold. In pursuance of the order, in October of that year, the lands were sold and the I. M. Davidson Real Estate & Investment Company, a corporation, became the purchaser of the land in suit and of other lands belonging to the estate. The report of sale was duly made by the sheriff, who was a special commissioner appointed to sell the land, the sale was approved in due form, and a deed was made to the corporation purchaser. On August 3, 1905, the I. M. Davidson Real Estate & Investment Company conveyed the land to the defendant Townsend for a consideration of $ 500, and Townsend afterwards...
To continue reading
Request your trial