Audsley v. Hale
| Decision Date | 07 April 1924 |
| Docket Number | 23300 |
| Citation | 261 S.W. 117,303 Mo. 451 |
| Parties | WILLIAM A. AUDSLEY v. MARJORIE HALE et al., Plaintiffs in Error |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled April 7, 1924.
Error to Carroll Circuit Court; Hon. Ralph Hughes, Judge.
Affirmed.
J G. Hale for plaintiffs.
(1) The plea of Marjorie Hale, showing that she had no rights in the lands described in plaintiff's petition, other than as a remainderman, under the will of Charles Sterne, as a child of her mother, who was living, and subject to defeasance if she did not survive her mother, brought to the knowledge of the court that it was called upon to adjudicate upon the possible rights of persons who were under a disability and helpless to assert their rights in a court or elsewhere. Hall v French, 165 Mo. 430, 437; Case v. Sipes, 280 Mo. 110, 119; Matlack v. Kline, 280 Mo. 139, 150 160; Gibson v. Gibson, 280 Mo. 519, 523; Carson v. Hecke, 282 Mo. 580, 591; Stockwell v. Stockwell, 262 Mo. 671, 680; White v. Kelton, 232 S.W. 670; Jones v. Himmelberger-Har. Lr. Co., 223 S.W. 63; Gray v. Clements, 227 S.W. 111. And under such circumstances this plea to the jurisdiction should have been sustained. (a) Due process of law within the provisions of the Fourteenth Amendment of U.S. Constitution is denied by adjudication upon the rights or interests of a person which, by reason of the uncertainty or contingency of such right or interest, or of the laws of the state where the adjudication is had the existence of such a right or interest cannot be determined or the infringement thereof cannot be redressed. Stockwell v. Stockwell, 262 Mo. 671; Clark v. Mitchell, 64 Mo. 564, 577; State v. Staten, 46 Tenn. (6 Cold.) 233; Rose v. Himely, 4 Cranch (U.S.) 241, 269, 278; Galpin v. Page, 18 Wall. (U.S.) 350, 368; Ownbey v. Morgan, 256 U.S. 94, 111; Schauble v. Schulz, 137 F. 389, 392. (b) The statutes do not require a remainderman to bring action to enforce a claim to property until the life estate has been terminated (though if the estate were vested, action to preserve it might be maintained in some cases). Case v. Sipes, 280 Mo. 110, 119; Starr v. Bartz, 219 Mo. 47, 57; Welch v. Wagner, 232 S.W. 146, 148; Matthews v. Van Cleave, 282 Mo. 19, 33; Goodale v. Evans, 263 Mo. 219, 229; Reed v. Lane, 122 Mo. 311, 315. (2) The affidavit of Mary Brent Hale, defendant, showing that she was under the age of twenty-one years at the time the decree below was entered and that no guardian ad litem had been appointed for her, the motion made by her within one year from her attainment of the age of twenty-one years should have been sustained. R. S. 1919, secs. 1173, 1552, 1307; Rush v. Rush, 19 Mo. 441; Lehew v. Brummell, 103 Mo. 546; Charles v. Kelley, 120 Mo. 134; Neeman v. St. Joseph, 126 Mo. 89; Wells v. Wells, 144 Mo. 198; Reineman v. Larkin, 222 Mo. 156; Arn v. Arn, 264 Mo. 19; Weiss v. Coudrey, 102 Mo.App. 65; State ex rel. Gewronski, 110 Mo.App. 414; Galbraith v. Pennington, 184 Mo.App. 1; State ex rel. v. Riley, 219 Mo. 667; Cross v. Gould, 131 Mo.App. 585. (3) This affidavit also showing that she had no right in the property other than under the Sterne will, to vest only upon the death and her survival of her mother, and that the court had rendered a judgment against her without jurisdiction to adjudicate upon her rights, the judgment should have been set aside for that reason, as there was no defendant who could be sued as to her interests under that will. 2 Bouv. L. Dict. (Rawle; 3 Ed.), p. 2000; Collier v. Goessling, 160 F. 604. (4) The averments in plaintiff's petion do not authorize the relief given by the decree, as no allegation of any facts showing why title or estate in the lands owned by Charles Sterne, should be divested out of the devisees in remainder or otherwise named in his will and vested in the plaintiff, is made. Peterson v. Larson, 285 Mo. 119, 125; Schneider v. Schneider, 283 Mo. 314, 332; Koehler v. Rowland, 275 Mo. 573, 580. The facts charged here simply show a claim of title in plaintiff with possession, and that the different classes of defendants might make claim to an interest in the lands described, or some parts thereof, making the action purely one at law. Busby v. Self, 283 Mo. 206, 213; Doe Run Lead Co. v. Maynard, 284 Mo. 646, 675; Stewart v. Loan & Tr. Co., 284 Mo. 364, 375. (5) If the court below had jurisdiction to adjudicate upon the rights and interests of Marjorie Hale and Mary Brent Hale, as remaindermen, the question of the effect of the sale of that interest in the partition proceeding referred to in plaintiff's reply is presented for consideration here. (a) The sale of the remainder interest in the said one-sixth of the Latham farm was void because it was in direct violation of the last will of the said Charles Sterne, which clearly indicated his intention that all of his lands except the one-third interest in the Latham farm which he owned at the making of his will should be preserved and held for the sole use of his said granddaughter during her life, and should remain as he had left it until her death. Sec. 2005, R. S. 1919; Sec. 43, 83, R. S. 1899; Hale v. Audsley, 122 Mo. 316; Stewart v. Jones, 219 Mo. 614, 633. After this court had decided upon Audsley's claim that the one-sixth interest could not be sold to him directly, he undertook to obtain the property by purchase indirectly. Powell v. Bowen, 279 Mo. 112, 115. (b) The sale of the remainder interest in the said one-sixth of the Latham farm was void because at the time of such sale and of the order directing such sale such interest had been set apart to the life tenant and remaindermen by the report of the commissioners in partition, which had been confirmed by the court, so that there was no person who had an interest in common with the said remaindermen or who could demand a partition or sale of the property with such remainder rights existent. The law is settled that there can be no partition between a life tenant and the remaindermen. Sec. 2009, R. S. 1919; Gray v. Clements, 227 Mo. 111; Starr v. Bartz, 219 Mo. 47, 57.
Lozier & Morris and Conkling & Withers for defendant.
The trial court did not err in rendering and entering the final judgment and decree in favor of defendant in error, and did not err in denying and overruling the motion to vacate said final judgment and decree of Mary Brent Hale. Sec. 1970, R. S. 1919; Ball v. Woolfolk, 175 Mo. 285; Garrison v. Frazier, 165 Mo. 46; Huff v. Land & Improvement Co., 157 Mo. 69; Doerner v. Doerner, 161 Mo. 407; Reinders v. Koppelmann, 68 Mo. 482; Sikemeier v. Galvin, 124 Mo. 367; Sparks v. Clay, 185 Mo. 393; Himmelberger-Harrison Lumber Co. v. Craig, 248 Mo. 330; Barber Asphalt Paving Co. v. Field, 188 Mo. 199; Dunklin County v. Choutau, 120 Mo. 593; Addington v. Townsend, 271 Mo. 611; Reed v. Ownby, 44 Mo. 206; Kloke v. Kloke, 276 Mo. 581.
The plaintiffs in error were defendants, with many others, in a suit brought by Audsley as plaintiff, to quiet title to certain lands situated in Carroll County. There were about 200 defendants, and some land involved other than the land wherein it is contended plaintiffs in error have an interest not determinable at that time, as the children of Lelia Hale, wife of John G. Hale, under the will of Charles Sterne, deceased. The land in this suit in which it was alleged plaintiffs in error claim or might claim an interest through the will of Charles Sterne deceased, was 320 acres.
Charles Sterne died about the year 1874, and his will was construed in Hale v. Audsley, 122 Mo. 316. It was there shown that John B. Hale had an undivided onehalf interest in the 320 acres of land mentioned, and that Charles Sterne was the owner at the time of his death of the remaining undivided one-half interest, having bought a one-sixth interest after making his will, but it was held that by the fifth clause of his will Charles Sterne had given to Lelia Hale, designated in the will as Leolia Henry Herndon, the undivided one-third interest in said land owned by him before making his will, and by the third clause had given the undivided one-sixth interest therein acquired by him after making his said will, to her, and the heirs of her body. Said will further provided that should said Lelia Hale die without bodily heirs, said real estate should go to the nephews and nieces of the testator. The nephews and nieces of Charles Sterne, deceased, were made defendants in the suit to quiet title. Other proceedings, and the course of events as gathered from the respective abstracts and statements are as follows:
In 1894 said John B. Hale instituted a suit to ascertain and declare the interests of the parties, and for the partition of said 320 acres of land, and it appears some other land, and joined as defendants therein said Lelia Hale, and her husband John G. Hale, and their daughter, the plaintiff in error, Marjorie Hale, then a minor, and also joined the nephews and nieces of Charles Sterne deceased. This was before the birth of plaintiff in error, Mary Brent Hale, which occurred in 1899. A guardian ad litem was appointed for Marjorie Hale and an answer in her behalf was filed. A decree in partition was rendered, and commissioners were appointed who set off 160 acres of the 320 acres of land, to John B. Hale, and 80 acres of it to Lelia Hale, and reported the remaining 80 acres of this 320, and another tract, as being not susceptible of partition in kind without prejudice, and recommended the sale thereof and payment of the proceeds to Lelia Hale "to have and hold the greater part thereof for her natural life," and after her death the same to vest in the heirs of her body surviving, or, if none surviving, to the defendant nephews and nieces of Charles Sterne deceased. A...
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