Atkison v. Henry

Decision Date31 October 1883
PartiesATKISON, Appellant, v. HENRY.
CourtMissouri Supreme Court

80 Mo. 670

ATKISON, Appellant,
v.
HENRY.

Supreme Court of Missouri.

October Term, 1883.


Appeal from Bates Circuit Court.--HON. F. P. WRIGHT, Judge.

AFFIRMED.

E. J. Smith, W. S. Shirk and C. C. Bassett for appellant.

We suppose the demurrer was sustained on the ground that plaintiff might have, in the former suit, set up the same matters herein sued for and recovered for them, and that having failed to do so, he is now estopped from suing in this action. This position is not correct. Under the practice before the code he could not have set it up or recovered for the same in that action. Neither could he under the earlier cases in this State under the code. Peyton v. Rose, 41 Mo. 257; Curd v. Lackland, 43 Mo. 139, and other cases before and after those. While now it may be that under Henderson v. Dickey, 50 Mo. 161, and Duval v. Tinsley, 54 Mo. 93, plaintiff might have included in that suit the matters here sued for, he was not bound to do so.

[80 Mo. 671]

There is nothing in any of these cases that requires him to do so, or be estopped from afterward suing for the same. And he is not estopped. See Bigelow on Estop., pp. 96 to 112, and cases there cited. Indeed, if these matters had been an issue in the former suit, we might have shown that no evidence of, or as to them, was introduced on that trial, and still have maintained this action, as was ruled in Hickerson v. City of Mexico, 58 Mo. 61, and Sweet v. Maupin, 65 Mo. 65.

A. Henry pro se.

The demurrer is based on the ground that there is no cause of action stated in the petition. The judgments in these cases are final between the parties, and binding until set aside by direct proceedings instituted for that purpose. Plaintiff bought the land at administrator's sale, when the legal title was in defendant, and alleged to be held fraudulently. The general charge of fraud in the petition, was but the conclusion of the pleader, and was not sufficient. But if defendant, in fact, held the title fraudulently, it would not be void but voidable, and the right to avoid it is not transferable. Crocker v. Balangee, 6 Wis. 645; 20 Wis. 183; French v. Shotwell, 5 John. Ch. 555; Graham v. Railroad Co., 12 Otto 148. The deceased had no interest in the land that could be sold by the administrator. George v. Williamson, 26 Mo. 192. The sale under the order of the county court conveyed no title. Criddle v. Criddle, 21 Mo. 522; Brown v. Finly, 18 Mo. 375; McLaughlin v. McLaughlin, 16 Mo. 242; Lake v. Meier, 42 Mo. 389. The matters...

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