Akers v. Hobbs
| Decision Date | 15 June 1891 |
| Citation | 16 S.W. 682,105 Mo. 127 |
| Parties | Akers v. Hobbs, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. E. L. Edwards, Judge.
Reversed.
Moore & Williams for appellant.
(1) Upon the undisputed facts the finding of the court should have been for appellant. The ex parte petition and judgment in the partition suit is binding on plaintiff. She was joined as a party, and the petition was signed by "Burke & Howard, attorneys for petitioners." She cannot attack the proceeding collaterally. Freeman v. Thompson, 53 Mo. 183; Reinfelt v. O'Brien, 57 Mo. 571; G. S of Mo. 1865, sec. 55, p. 663. (2) This judgment and the sale of the land by the sheriff of Cole county in 1868 as shown by his deed dated August 2, 1869, to W. W. Hall and E. S McDaniel, under this judgment, conclude and estop the plaintiff from claiming title to the land. Dunham v Danby, 34 Mo. 447. "The order of sale is the final judgment in partition." The decision is under the partition laws of 1855, and under like provisions in the statutes of 1865. A judgment in partition establishes the title of all the parties to the suit, and is conclusive to any adverse claim or title existing on their part at the time of its rendition. Holliday v. Langford, 87 Mo. 577; Bobb v. Graham, 89 Mo. 200; Forder v. Davis, 38 Mo. 107; Hart v. Steedman, 98 Mo. 452; Rolf v. Timmermeister, 15 Mo.App. 249. It was the duty of the trial court upon this record evidence and sheriff's deed to have found the issues for defendant, without reference to instructions, and that, too, had no instructions been offered by him. Waddell v. Williams, 50 Mo. 217; Cunningham v. Snow, 82 Mo. 588. (3) Upon any view of the case the deed of the sheriff of Cole county to Hall & McDaniel is certainly "a color of title." Hickman v. Lusk, 97 Mo. 482; Mylar v. Hughes, 60 Mo. 105; Runnels' Curator v. Runnels, 52 Mo. 108; Hughes v. Israel, 73 Mo. 547. The plaintiff is barred by adverse possession. Ekey v. Inge, 87 Mo. 493; Crispen v. Hannavan, 50 Mo. 418; Huckshorn v. Hartwig, 81 Mo. 648; Keyes v. Jennings, 66 Mo. 367; Music v. Barney, 49 Mo. 464; Fugate v. Pierce, 49 Mo. 441; Draper v. Shoot, 25 Mo. 197; Long v. Higginbotham, 56 Mo. 245. Citation could be multiplied indefinitely. (4) As the statute of limitations began to run against plaintiff when she was a feme sole, her subsequent marriage did not stop its running or prevent that possession ripening into a perfect title. Lander v. Perkins, 12 Mo. 238; Cunningham v. Snow, 82 Mo. 587; Smith v. Newby, 13 Mo. 159; Williams v. Dongan, 20 Mo. 186; Rogers v. Brown, 61 Mo. 187.
Edmund Burke and George T. White for respondent.
(1) There being evidence to support the verdict, the supreme court will not disturb the finding. Baum v. Fryrear, 85 Mo. 154; Pike v. Martindale, 91 Mo. 284; Krider v. Milner, 99 Mo. 149; Chouteau v. Allen, 70 Mo. 336; Judy v. Bank, 81 Mo. 410; Cox v. Cox, 91 Mo. 78; Erskine v. Loewenstein, 82 Mo. 309; Berry v. Hartzell, 91 Mo. 138; Bank v. Murray, 88 Mo. 196; Lenox v. Harrison, 88 Mo. 497. (2) The fact that in this case no declarations of law were presented by appellant to the court before its decision was announced should have the same effect as if none had been presented, and the judgment of the lower court should be affirmed. Morehouse v. Ware, 78 Mo. 103; Altum v. Arnold, 27 Mo. 264; Easley v. Elliott, 43 Mo. 290; Wilson v. Railroad, 46 Mo. 37; Wielandy v. Lemuel, 47 Mo. 322. (3) When a cause is submitted to the court for hearing (as had been done in the case now under consideration), declarations of law are generally of little use, except to show the theory on which the case was tried. Cooper v. Ord, 60 Mo. 431; Stone v. Spencer, 77 Mo. 361. (4) The proceedings instituted in the circuit court of Moniteau county for the purpose of admeasuring the dower interest of respondent in the McDaniel land, including her land in Cole county, were commenced under the law of 1865, which required that the court give judgment that the partition be made. No such judgment was rendered in that cause. G. S. 1865, sec. 12, p. 612. (5) There was no final judgment in reference to the sale of the Cole county land. There was no report of the sale of it filed, nor approved. The order of partition and sale is not a final judgment. Murray v. Yates, 73 Mo. 13; Parkinson v. Caplinger, 65 Mo. 290; Strickler v. Tracy, 66 Mo. 465; Turpin v. Turpin, 88 Mo. 337; Holloway v. Holloway, 97 Mo. 628. (6) The sheriff of Cole county having failed to make a report of the sale of the Cole county land to the circuit court of Moniteau county, and to obtain an approval thereof, was not authorized to execute a deed for the land alleged to have been sold. In the case of Pomeroy v. Allen, 60 Mo. 530, the court says: "In partition sales the sheriff must report his proceedings to the court, and until there is an approval or confirmation of same no deed can be executed." (7) Respondent insists that she is not estopped from claiming the Cole county land by reason of any proceedings instituted in the circuit court of Moniteau county by the heirs of John McDaniel for the purpose of having her dower therein set apart to her. Thompson v. Renoe, 12 Mo. 161; Crenshaw v. Creek, 52 Mo. 101.
This is ejectment for eighty acres of land in Cole county. The trial, without a jury, resulted in a judgment for the plaintiff.
The plaintiff purchased the land from the United States, and received a patent dated in 1857. She married John McDaniel in 1863. He died in November, 1866, and in May, 1872, she married Mr. Akers, who died in 1885.
In 1867 and 1868, after the death of McDaniel, proceedings were had by his widow, the plaintiff in this case, and his heirs, for the assignment of dower and partition of the lands of the deceased; and under these proceedings the land in question was sold to W. W. Hall and Edward McDaniel, from whom the defendant claims title. The plaintiff objected to the deed to Hall and Edward McDaniel, and to the record in the partition suit, on the ground that she was not a party to those proceedings, and also on the ground that there was no judgment that partition be made.
The widow and heirs were all petitioners. The petition is signed by Messrs. Burke and Howard, attorneys for the petitioners, and then by each of the adult parties and the guardian of the infants, the plaintiff in this case signing by her mark. She testifies that she did not bring that suit; that it was brought by the children, and that she could not remember whether she did or did not sign the petition. The proof is clear that she knew the proceedings were pending, and that they included her land in Cole county. She was informed of the sale before it was made, and thereafter gave to the land no attention. The petition sets out and describes some two hundred and seventy-five acres of land in Moniteau county, owned by the deceased at his death. Also the eighty acre tract in question, owned by the plaintiff, but alleged in the petition to have been the property of McDaniel.
The circuit court of Moniteau county, on the presentation of this petition, at a term held in 1867, made a finding that McDaniel died the owner in fee of the lands in both counties, and that Malinda McDaniel, as the widow of the deceased, was entitled to a third part thereof for life; and then made an order appointing three commissioners to assign dower to her. The commissioners made a report to the next term, setting forth the fact that they had set off to the widow described portions of the Moniteau county land as her dower in all of the lands described in the petition, and that the remaining lands were not susceptible of division. This report the court approved and confirmed, and at the same time ascertained and declared the interest of each of the heirs in the lands not thus set apart as dower, and ordered them to be sold and the proceeds divided among the parties according to their respective interests as declared by the court; and the cause was continued for report of the sheriff of each county. The Moniteau county lands, not set off to the widow, were sold, and the sheriff's report was duly approved. The sheriff of Cole county sold the eighty acres in question, and executed a deed therefor to Howard and Edward McDaniel, dated second of August, 1869, but made no report of his sale.
1. The objection that the plaintiff is not bound by the partition proceedings because she was not a party thereto is without any foundation in point of fact. She does not even affirm that she did not sign the petition. All she can say is that she does not remember whether she did or did not sign it. She knew of the pendency of the proceedings, and that the land was to be sold thereunder, and she accepted the dower interest assigned to her by the commissioners. Under these circumstances, the assertion that she was not a party to those proceedings, for the first time after the lapse of twenty years, is entitled to no consideration whatever.
2. Regularly, the court should have first ascertained and declared the interest of each of the parties in the lands and then rendered judgment...
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