Bernecker v. Miller

• Decision Date: 31 March 1869
• Citation: Bernecker v. Miller, 44 Mo. 102 (Mo. 1869)
• Parties: JOHN L. BERNECKER, Respondent, v. WENDELIN MILLER and MARTIN MILLER, Appellants.
• Court: Missouri Supreme Court

44 Mo. 102

JOHN L. BERNECKER, Respondent,

v.WENDELIN MILLER and MARTIN MILLER, Appellants.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

In 1835Morgan Lich owned and occupied forty acres of land, the west half of the east half of the northeast quarter of section seven, township forty-five north, range six east--the same here sued for.Frederick Clouse owned the east half of said eighty acres at said time.Morgan Lich was in possession of the west half of said eighty acres from 1835 until his death, in 1850; and the widow and heirs continued in possession until her death, in February, 1862, and the heirs have been in possession ever since.Clouse was in possession of the east half of said eighty acres the same length of time.Morgan Lich had no interest in the east half, and Clouse had no interest in the west half.John Bernecker's wife was a daughter of Morgan Lich.One Peterson and wife, and one Ladue, brought their suit in partition for three-eighths of these eighty acres, against Clouse and the heirs of Morgan Lich, to the October term, 1858, of the Land Court.Bernecker and wife were parties to said suit, she being an heir of Morgan Lich.Afterward, before said suit was reached for trial, Bernecker and wife brought their suit for partition, against Lich's heirs and Clouse, of said eighty acres.Peterson and wife and Ladue were not made parties.The suit was brought in the St. Louis Court of Common Pleas, at the November term, 1859.They obtained judgment for partition of the eighty acres before the Peterson case was reached for trial.The east half was assigned to Clouse, and the west half ordered to be sold.Bernecker was the purchaser, at five dollars per acre, and obtained the sheriff's deed.Mrs. Wendelin Miller was under age when the petition was filed, but was of age when the judgment was taken.Morgan Lich left seven heirs.Afterward the Peterson case, in the Land Court, was tried and consummated to a judgment for partition for three-eighths of the eighty acres.The west half, on the petition of Bernecker, was assigned to him on his sheriff's deed without any consent of Lich's heirs, who were parties.The east half was ordered to be sold, and purchased by Bernecker.All the interest of Peterson and Ladue (three-eights) was concentrated in the east half.

The plaintiff read in evidence, and relied upon for title, his sheriff's deed.He also read in evidence a deed from Clouse, and sheriff's deed for the east half, and a lease (objected to) to Miller of the eighty acres for two years, dated April 26, 1862.Defendants paid the rent, but refused to give up the west half at the expiration of the term.Plaintiff sued them, and the sheriff put him in possession on the 18th of May, 1866.He did not turn out Martin Miller.Wendelin Miller afterward came back into the possession.

The defendants then asked the following instructions, which were refused:

1.If William D. Peterson and wife and P. A. Ladue filed their suit for partition in the St. Louis Land Court, against Frederick Clouse and the widow and heirs of Morgan Lich, for partition of the whole tract of eighty acres, and obtained judgment therein for three-eights thereof, and the said John L. Bernecker and wife, pending said suit, and before said judgment, filed their suit for partition, in the whole tract of eighty acres, against the widow and heirs of said Morgan Lich, in the St. Louis Court of Common Pleas, with notice of the pendency of said suit of Peterson and others, and were parties to the same, and said Peterson and wife and said Ladue were not parties to said suit in said Common Pleas Court, and Elizabeth Lich, one of the defendants, was under the age of twenty-one when said suit was filed, and no guardian ad litem appointed for her, and Bernecker and wife obtained judgment and order of sale before the trial of said case of Peterson and others, and obtained the sheriff's deed for the west half of said eighty acres at five dollars per acre, then said sheriff's deed is invalid as to the rights of said Morgan Lich's heirs, and absolutely null and void.

2.If the said Bernecker and wife filed their suit in said Common Pleas Court, for partition of the whole tract of eighty acres, against the widow and heirs of Morgan Lich, and against said Frederick Clouse, as detailed in instruction No. 1, and in their petition, by the allegations and prayers thereof, claimed and alleged that the heirs of the said Morgan Lich were entitled to the undivided half of the whole tract of eighty acres, and Frederick Clouse to the undivided half thereof, and the said Clouse owned exclusively the east half thereof, and the heirs of Morgan Lich owned exclusively the west half thereof, then said suit was limited, as to Morgan Lich's heirs, to one-half of the west half of said eighty acres, and a judgment rendered on said petition, inconsistent with this proposition, is not only null and void in itself as to one-half of the west half of said eighty acres, but, with the facts detailed in instruction No. 1, wholly null and void, and the title acquired by said Bernecker, through said judgment in said partition suit in the St. Louis Court of Common Pleas, to the west half of said eighty acres, inures to the heirs of said Morgan Lich, as in the nature of a trust.

P. C. Morehead, for appellants.

I.The judgment rendered in the Court of Common Pleas was void.If a judgment is rendered for land not claimed or set out in the petition, it is a nullity.Where a suit was already pending in the Land Court, between the same parties, for a partition of the same land, the plaintiffs in the Common Pleas Court being parties, and the plaintiffs in the first suit were not parties in the last suit, as required by statute, there was a want of jurisdiction.

According to the evidence in this case, Morgan Lich's heirs had no interest in the east half of the eighty acres, and Frederick Clouse had no interest in the west half.They owned and occupied their respective tracts over thirty years, separated by a fence.

Bernecker's suit in the Common Pleas Court was for partition of the whole eighty acres, claiming for Lich's heirs the undivided half, and leaving twenty acres in the west half unaffected by the suit.(24 Mo. 385;34 Mo. 194;2 How. 43;R. C. 1855, p. 1111, § 3.)

II.The plaintiff could only recover on his own evidence.He rested the case solely on his sheriff's deed, through which he acquired no title, because the title was tied up--it might be said, vested in the Peterson case.The bare evidence gave no strength to his title on the deed.It is irrelevant, containing separate issues, and requiring a different suit.(40 Mo. 473.)

Here the courts had concurrent jurisdiction--the first taking cognizance of the same matter retained the entire jurisdiction to final judgment, and consent or confession could not confer it on another.But this jurisdiction must be limited strictly to the matters contained in the petition.(1 Strob. 1;1 Md. Ch. 3, 351;2 How. 43;3 Ohio, 373;4 McCl. 233;13 Ill. 432;2 Greene, Iowa, 374;3 McCord, 280;3 Caines, 129.)Wendelin Miller and Martin Miller are both defendants.There is no evidence whatever in the case affecting the rights of Martin Miller; he was in possession ten years; the answer says Mrs. Wendelin Miller, who is not sued, was in possession with her husband in her own right as to one-seventh.She was under age when Bernecker's partition suit was filed, but of age when the writ was served.Nevertheless, she has been in possession since the death of her father in 1850, and her husband with her since 1856.

R. S. McDonald, for respondent.

I.All parties had full notice.Elizabeth, wife of the appellantWendelin Miller, lacked six days of being twenty-one years of age when served, but was of age wben she appeared in court.A guardian ad litem could not have been appointed.

II.The sheriff's deed in evidence conveyed to respondent on the 17th of December, 1860, all the title to the land in question which the heirs of Morgan Lich ever had.

III.In 1862, long after Bernecker had purchased this property, with a full knowledge of all the particulars, Wendelin Miller becomes the tenant of Bernecker for the whole tract of eighty acres for two years, and paid the rent during that time.After the determination of the lease Miller held over, and Bernecker brought suit of unlawful detainer, and obtained a writ of restitution, and Wendelin was turned out and Bernecker placed in possession.On the same day Miller re-enters, and still remains in possession.How can the possession of Miller be continuous, when for two years he was Bernecker's tenant under written lease, and was once dispossessed by the sheriff?If the east half of the tract alluded to in the evidence has any bearing on the case, then the respondent's title is still more complete.If Clouse had a title, his deed to Bernecker passed the same.If Peterson and Ladue had an interest, the partition sale and sheriff's deed to Bernecker passed their title.Thus every interest, whether real or imaginary, was purchased by Bernecker.All titles in either tract center in Bernecker, and are his by every legal right.The record of the partition suit of Peterson et al. v. Clouse et al., offered in evidence by appellant, showed that an agreement was made between counsel representing all parties, that a decree should be and was granted, giving to John L. Bernecker absolutely the west half of said tract, without any claim on the part of the other parties in interest.Without any further evidence, this record shows a good and valid title in Bernecker.

BLISS, Judge, delivered the opinion of the court.

This is an action for the possession of the west half of the east half of the northeast quarter of section seven, in township forty-five north, of range six east, of the St. Louis land district; and the parties agree that Morgan Lich, deceased, held the legal title: the plaintiff...