Bobb v. Graham

• Decision Date: 07 June 1886
• Citation: 1 S.W. 90,89 Mo. 200
• Parties: BOBB v. GRAHAM and others.
• Court: Missouri Supreme Court

1 S.W. 90

89 Mo. 200

BOBB v. GRAHAM and others.

Supreme Court of Missouri.

June 7, 1886.

PARTITION — ANSWER — SHERIFF'S DEED — FAILURE TO PLEAD — SUBSEQUENT REDRESS.

When, in a partition suit, a party claiming through execution proceedings fails in his answer to set up his interest upon receiving a sheriff's deed, he cannot, after final decree, obtain redress based upon such deed.

Appeal from St. Louis court of appeals.

H. Hitchcock and T. J. Rowe, for respondent, John H. Bobb. Dyer, Lee & Ellis, for appellants, Thomas J. Graham and others.

NORTON, J.

This action of ejectment was brought in the circuit court of the city of St. Louis to recover a certain lot of land in said petition described. Among other things set up in the answer is the following: That in the month of May, 1880, one August F. Zelle, as plaintiff, brought in said circuit court a partition suit against John H. Bobb, the plaintiff herein, Cora B. Taylor, a defendant herein, James K. Taylor, her husband, Philip M. Bobb, Charles H. Bobb, and Irene Bobb, as defendants, the purpose of which was to make partition, between the parties to said suit, of certain lands, including the land described in the plaintiff's petition; that all the defendants in said suit appeared therein and pleaded, and that, by a final decree in said cause, made and entered on June 22, 1882, the lands sought to be partitioned in said suit were allotted among the several parties thereto according to their respective interests as ascertained by said decree, and that therein and thereby the lands described by the plaintiff's petition herein were allotted and assigned to this defendant, Cora B. Taylor, and that all the right, title, and interest which plaintiff had or can have in and to the premises described in this suit were held and acquired by him prior to the date of the final decree in said partition suit; that said decree and partition were conclusive upon this plaintiff, who is thereby estopped, in law and in equity, from disputing the title of this defendant, Cora B. Taylor, as established by said decree, of and to the lands sued for by the plaintiff herein, and from asserting any claim or title to said lands adversely to these defendants; and that the defendant Graham, at the date of the commencement of this suit, was in actual possession of the premises sued for, as lessee of said Cora B. Taylor, and not otherwise. To this answer the plaintiff filed a reply in the nature of a general denial.

From the record in the case of Zelle v. Bobb, which was put in evidence, it appears that the petition seeks for a partition of certain parcels of land, and among others the property in controversy in this suit, and that it is therein alleged that Cora B. Taylor, the defendant herein, was the owner in fee of an undivided one-twentieth of said lands, and also of an undivided three-twentieths of said lands for and during the life of one Charles Bobb, and that the defendant John H. Bobb (the plaintiff herein) was owner in fee-simple of an undivided one-half of said lands, and also of an undivided one-tenth of said lands in remainder after the said determination of said life-estate owned by said Cora B. Taylor; and the respective interests of all the parties to said suit are specifically stated. Said petition prayed for a partition of said lands in the usual form. The answer of John H. Bobb, the plaintiff herein, sets up, by way of an affirmative defense, "that it is not true that the defendant Cora B. Taylor is the owner of an undivided one-twentieth of said lands, and also of an undivided three-twentieths of said lands during the life of Charles Bobb, and these defendants say that the only interest in said lands owned by said Cora B. Taylor is a one-tenth interest, which is subject to an estate by the curtesy of said Charles Bobb. These defendants further say that it is not true that defendant Cora B Taylor is the owner of the life-estate of Charles Bobb, which he owns as tenant by curtesy, in the undivided one-fourth of said lands, but that the life-estate is still the property of said Charles Bobb."

An interlocutory decree in said suit was rendered on April 26, 1881, and commissioners were appointed to make partition. By the terms of the final decree of partition, which was rendered on June 22, 1882, confirming the report of said commissioners, there was allotted to this defendant Cora B. Taylor, in full of her one-twentieth interest in said lands, owned by her in fee, the identical lot which is here in controversy, and there was also allotted to said defendant Cora B. Taylor, in full of the three-twentieths interest in said lands owned by her for and during the life of her father, Charles Bobb, another tract adjoining the one herein sued for, fronting 68 feet 2¼ inches on Eighth street, by 80...