Bailey v. McGinniss

• Decision Date: 31 August 1874
• Parties: BISHOP A. BAILEY and JOHN G. WOODS, Respondents, v. WILLIAM F. MCGINNISS and STROTHER MCGINNISS, Appellants.
• Court: Missouri Supreme Court

57 Mo. 362

BISHOP A. BAILEY and JOHN G. WOODS, Respondents,

v.WILLIAM F. MCGINNISS and STROTHER MCGINNISS, Appellants.

Supreme Court of Missouri.

August Term, 1874.

Appeal from Clay Circuit Court.

E. H. Norton, W. H. Woodson, and D. C. Allen, for Appellants.

I. The judgment of partition, etc. in the Circuit Court, rendered March 29th, 1870, in the case of Andrew J. Rupe vs. Susan E. Malott, was absolutely null and void, and no title could be acquired under it; 1st--because there had been a previous judgment of partition in said cause, and commissioners appointed to divide the land, rendered March 17, 1869, and it had not been vacated or set aside when the second judgment was rendered; there cannot be two judgments in same case; 2nd--because on the 29th day of March 1870, and until on and after May 26th, 1873, the defendants, James J. and Sarah E. Willoughby were minors, and said judgment was rendered against them without the appointment of a guardian ad litem to appear and defend for them, and without any appearance for or by them; also, because the minors, William C. Rupe and Francis M. Rupe were made defendants, and judgment rendered against them without service of process upon them, or appointment of guardian ad litem, and all this at the same term of the court. Minors can only appear in a partition suit after service of process upon them, and by guardian ad litem duly appointed. (Hendricks vs. McLean, 18 Mo., 32; Gibson vs. Chouteau, 39 Mo., 536; Randalls vs. Wilson, 24 Mo., 76; Shaw vs. Gregoire, 41 Mo., 407; Whitney vs. Porter, 23 Ill., 445); 3rd--because a judgment is an entirety, and is good as to all or bad as to all; and being erroneous as to the minors, Wm. C. and Francis M. Rupe, and James J. and Sarah E. Willoughby, was erroneous and void as to all. (Randalls vs. Wilson, 24 Mo., 76; Rush vs. Rush, 19 Mo., 441; Pomeroy vs. Betts, 31 Mo., 419; Cov. Mut. Life Ins. Co. vs. Clover, 36 Mo., 392; Goode vs. Crow, 51 Mo., 212; Howard vs. Thornton, 50 Mo., 291; Dickenson vs. Chrisman, 28 Mo., 134; Swan vs. Horton, 14 Gray, 179; Farris vs. Richardson, 6 Allen, 118; Holbrook vs. Murray, 5 Wend., 161; Hall vs. Williams, 6 Pick., 232; Richard vs. Walton, 12 John., 434.)

II. At the time of the purchase by William F. McGinniss of the interests in the lands of Andrew J. Rupe and others, April 13th, 1869, by their deed of that date, the case of Rupe vs. Malott (in partition) was not a lis pendens as to the defendants, nor was it at the May Term of the Clay County Court when it ordered the sale of the interests of the Willoughby heirs. No sane man can, upon all of the facts and the record, believe for a moment, that the defendants appeared March 17th, 1869.

III. Neither of the appellants, Wm. F. McGinniss or Strother McGinniss not being affected with notice of the partition suit, and it not having been a lis pendens as to him while he was acquiring his interests in the said lands, and neither he nor his co-appellant being a party to the suit, they, appellants, are entitled in a collateral suit to the benefit of all proof, whether in the record or dehors the record, which goes to show that the judgment of March 29th, 1870, was erroneous and void or fraudulent; and this is true, especially in a case like this, where the title of one party recites the judgment and record that is attacked. An erroneous or fraudulent judgment may be avoided by proof. (Freem Judgm., § 337, p. 297; § 336, p. 297; Vose vs. Morton, 4 Cush., 27; Leonard vs. Bryant, 11 Metc., 370; Downs vs. Fuller, 2 Metc., 135; Griswold vs. Stewart, 4 Cow., 457.)

IV. The judgment in the case of Chapman vs. Rupe was void, for the reason that it was rendered on the last day in which defendant was notified to appear, (3rd day of term,) and was, besides, rendered at the first term after the suit was brought.

J. E. Lincoln, for Appellants.

I. A suit pending is not notice to a purchaser so as to affect his interest, until the writ is served after the petition is filed. (44 Mo., 444; 40 Mo., 572; 27 Mo., 560; 38 Mo., 525; 2d Sudg. Vend., 393.)

J. E. Merryman, for Respondents.

I. The appellants were purchasers, pendente lite they having bought out the interest of some of the heirs of Rupe after the petition for partition was filed, and after the parties had made their personal appearance in court, and consented to a decree for partition of the land. Therefore in this suit, being a collateral proceeding, the appellants are estopped from attacking the judgment in the partition suit. The Circuit Court had jurisdiction in the partition case, both of the property and the parties, and appellant purchased subject to the judgment rendered.

II. It is admitted that the proceedings in the partition suit were irregular in some respects, but irregularities do not render the proceedings void. The judgment was good as to all the parties before the court, though not binding on those not before the court. If an appeal had been taken, then the judgment would have been reversed as to all the parties, but until reversed it was good as to all the parties before the court. (7 Mo., 463; Ror. Sales, § 339.)

NAPTON, Judge, delivered the opinion of the court.

This was an ejectment to recover 180 acres of land in Clay County. The case was tried by the court, and the plaintiffs recovered 8-9 of the land.

The land in dispute belonged to the estate of Wm. Rupe, deceased. There were nine heirs of said Rupe, to-wit: four sons, Andrew, Richard, David and Harvey, and five daughters, Mrs. Malott, Mrs. Carroll, Mrs. Hayden, Mrs. Ish and Mrs. Willoughby, the last of whom died before her father, leaving two children, who represented her portion of the land.

The plaintiffs claim indirectly through a judgment in partition of the estate among the heirs, and a sale under this judgment, and a deed from the sheriff. The defendants claim 6-9 of the title, by virtue of a deed executed by the parties holding an interest to this extent, after the commencement of the suit in partition, and before the judgment and sale and deed by the sheriff.

It seems that one Chapman sued Harvey Rupe, one of the heirs, in attachment and obtained a judgment, and purchased his interest in the estate of his father under execution, and obtained a deed, by which he became the owner of said Harvey Rupe's interest in the land; and on the 26th Feb. 1869, said Chapman and Andrew J. Rupe instituted in the Circuit Court of Clay Co., a proceeding for partition.

This suit is entitled “Andrew J. Rupe and Andrew L. Chapman, plaintiffs vs. Susan E. Malott and Hiram Malott, her husband, Mary M. Ish and John Ish, her husband, Zelpha A. Carroll and James J. Carroll her husband, Delilah Jane Hayden and Elijah Hayden, her husband, James J. Willoughby and Sarah E. Willoughby, defendants.”

From this title of the case it appears, that only the female representatives of Rupe or their descendants were made parties defendants; but the petition explains that the plaintiff, Andrew J. owned 2-9, his own share, and that of his brother, David, and the Willoughby's 2-9, although the evidence shows that this is a mistake, and the interest of Richard is entirely omitted.

As the deed to McGinniss, defendant, from Andrew J. Rupe and Mrs. Malott, and Mrs. Ish, and Mrs. Carroll and Mrs. Hayden, was dated 17th April, 1869, it will be necessary to notice the various steps taken in the partition suit, from which proceeding and judgment plaintiffs derive their title

The suit in partition was begun 26th Feb., 1869. On March 1st, an order of publication was made in vacation against Susan E. and Hiram Malott, non-residents, notifying them to appear to the April Term of the Clay Circuit Court, 1869, which term commenced Apl. 28th, 1869. By reason of a change of the term in this Circuit, the summons, dated March 2, was made returnable to the April Term, 1869; and on the summons the sheriff returned service on the Carrolls on 17th Aug., 1869, on the Haydens on 8th June, 1869, on the Willoughbys, on 31st Aug. 1869, and the Malotts and Ishs not found. This return was made Aug. 31st, 1869.

On the 17th March 1869, the record of the Circuit Court contains this entry “Andrew J. Rupe and Andrew L. Chapman vs. Susan E. Malott, etc.: Now at this day come the parties aforesaid by their attorneys and on motion, Susan E. Malott and Hiram Malott, her husband, two of the defendants are made parties plaintiff in this cause.”

And on the same day is this entry: “Andrew J. Rupe, Andrew L. Chapman, Susan E. Malott and Hiram Malott, her husband, against Mary M. Ish and John Ish, her husband, Zelpha A. Carroll, etc. Now at this day come the parties aforesaid, by their attorneys, and consent that partition of the lands mentioned in plaintiff's petition be made, in conformity with the prayer thereof, which said real estate is thus described (here follows the description) and the court finds the rights of the parties in interest in said real estate to be as follows, viz: that Andrew J. Rupe is entitled to two undivided ninths of said land; that Andrew L. Chapman, Susan E. Malott, Hiram Malott, her husband, in right of Susan E., Mary M. Ish and John Ish her husband, in right of said Mary M., Zelpha A. Carroll, James J. Carroll, her husband, in right of said Zelpha A., Delilah Jane Hayden and Elijah Hayden, her husband, in right of said Delilah Jane and James J. Willoughby are each entitled to one undivided ninth,” and the court appoints commissioners to make the division accordingly.

It will be observed that only 8-9 are disposed of in this decree, and that nothing is said of the remaining 1-9.

The next entry on the record of the partition suit is dated September 29th, 1869, and the original title of the case is resumed, to-wit: Andrew J. Rupe and Andrew L. Chapman vs. Susan E. Malott, etc. It then appears that the plaintiffs come into court and prove, to the satisfaction of the court, that Susan E. Malott and Hiram Malott, and Mary Ish and John Ish are non-residents of this State; and, thereupon, an...