Bogart v. Bogart
| Decision Date | 03 April 1897 |
| Citation | 40 S.W. 91,138 Mo. 419 |
| Parties | Bogart et al., Appellants, v. Bogart et al |
| Court | Missouri Supreme Court |
Appeal from Ray Circuit Court. -- Hon. E. J. Broaddus, Judge.
Affirmed.
Lavelock Kirkpatrick & Divilbiss for appellants.
(1) The will of William A. Bogart, deceased, is valid, and not having been renounced by his widow, Delilah Bogart, it determines her interest in his estate and is conclusive upon her. R. S 1889, secs. 4527, 4528, 5435 and 5439; Register v Hensley, 70 Mo. 189; Davidson v. Davis, 86 Mo. 440; Burgess v. Bowles, 99 Mo. 543; Greer v. Major, 114 Mo. 145. (2) The real estate sought to be partitioned by the ex parte proceedings, was not subject to partition between Delilah Bogart and her children, at the time such suit was instituted and the pretended interlocutory decree was rendered. R. S. 1889, sec. 7132. (3) The ex parte partition proceedings and pretended interlocutory judgment for partition was in violation of the provisions of the will of William A. Bogart, deceased, unauthorized by the statutes, prejudicial to interests of these plaintiffs, and the other children of William A. Bogart, deceased, and a fraud on their rights, and is therefore void. R. S. 1889, sec. 7142; Freeman on Cotenancy and Partition [2 Ed.], sec. 439, p. 581; Cubbage v. Franklin, 62 Mo. 364; Williams v. Hassel, 74 N.C. 434; Outcalt v. Appleby, 36 N.J.Eq. 73. (4) In partition proceedings, the judgment for partition and order of sale is merely interlocutory, and the judgment does not become final until the sale is reported and approved by the court. Parkinson v. Caplinger, 65 Mo. 290; Rhorer v. Brockhage, 15 Mo.App. 16; Turpin v. Turpin, 88 Mo. 337; Harbison v. Sanford, 90 Mo. 477; Holloway v. Holloway, 97 Mo. 628; Buller v. Linzee, 100 Mo. 95; Burden v. Taylor, 124 Mo. 12. (5) A replication setting up deception, imposition or fraud in the procurement of a judgment, pleaded in bar, or as estoppel of a right to recovery, is permissible and is not a departure from the original petition. R. S. 1889, secs. 2052, 2054; 3 Pomeroy's Estee's Plead. [3 Ed.], sec. 4581; Pomeroy's Remedies and Remedial Rights, sec. 85; White v. Rush, 58 Mo. 105; Paddock v. Somes, 102 Mo. 226. (6) The judgment obtained by deception, imposition or fraud, when relied on as a defense to an action, may be impeached for such deception, imposition or fraud in the procurement thereof, and when thus successfully impeached constitutes no bar. Freeman on Judg., sec. 250; 2 Black on Judg., sec 973; 2 Pomeroy's Eq. Jur., sec. 919; 2 Beach on Mod. Eq. Jur., sec. 921; State v. Cole, 48 Mo. 70; Edgell v. Sigerson, 20 Mo. 494; Higgins v. Peltzer, 49 Mo. 152; Marx v. Fore, 51 Mo. 69; Ward v. Quinlivin, 57 Mo. 425; McClanahan v. West, 100 Mo. 309. (7) Estoppel by judgment can only arise where the judgment is final. Bigelow on Estoppel, p. 19; Freeman on Judg., sec. 251; 2 Black on Judg., sec. 695; Wells on Res Adjudicata and Sta. Dec., sec. 441; Garrett v. Greenwell, 92 Mo. 120; Railroad v. St. Louis, 3 Mo.App. 315; Rockwell v. Dist. Ct., 17 Col. 118; 31 Am. St. Rep. 265; McReady v. Rogers, 1 Neb. 124; 93 Am. Dec. 333; Proctor v. Cole, 104 Ind. 373; 3 N.E. 106. (8) The plaintiffs are not estopped from asserting their title to the land in dispute. The defendant was not induced to purchase at the pretended partition sale by any act or declaration of the plaintiffs, but upon the contrary had full knowledge of all the facts invalidating the title to the land he was purchasing, and acted on his own information and knowledge; and in such case, the doctrine of estoppel in pais will not obtain. 2 Pomeroy's Eq., secs. 805-8; 2 Beach on Mod. Eq. Jur., secs. 1096, 1097, 1108; Blodgett v. Perry, 97 Mo. 263; City of St. Louis v. Lumber Co., 98 Mo. 613; Scrutchfield v. Sauter, 119 Mo. 615; Douglass v. Cissna, 17 Mo.App. 44; Wurmser v. Frederick, 62 Mo.App. 634. (9) In order to constitute estoppel in pais, it is indispensable that the defendant should have been misled to his prejudice by some act or declaration of the plaintiffs before, or at the time of the sale -- he must have been induced to purchase by the acts complained of. Anything occuring after the sale will not suffice. Bigelow on Estoppel, 560; 2 Pomeroy's Eq. Jur., sec. 812; 2 Beach on Mod. Eq. Jur., sec. 1101; Bales v. Perry, 51 Mo. 449; Eitelgeorge v. B'ld'g Ass'n, 69 Mo. 52; Spurlock v. Sproule, 72 Mo. 503; Burke v. Adams, 80 Mo. 504; Scrutchfield v. Sauter, 119 Mo. 615. (10) The partition proceedings being void, it is not necessary that plaintiffs should return or offer to return the purchase money before instituting this suit. Valle v. Fleming, 19 Mo. 454; Henry v. McKerlie, 78 Mo. 416; Campbell v. Laclede Gas Light Co., 84 Mo. 352; Foote v. Clark, 102 Mo. 408; Bone v. Tyrrell, 113 Mo. 175.
Farris & Son and J. E. Ball for respondent.
(1) Delilah Bogart as the widow of William A. Bogart, deceased, was not required to renounce the will. She is entitled to homestead and dower in said real estate, notwithstanding the provisions of the will and the same was subject to partition and sale. The rights of the widow accrued under the homestead law of 1875. Sess. Acts 1875, pages 60 and 61. Kaes v. Gross, 92 Mo. 647; Davis v. Morgan, 97 Mo. 76; Burgess v. Bowles, 99 Mo. 543; Kleimann v. Gieselamann, 114 Mo. 437; Schorr v. Etling, 124 Mo. 42. (2) The petition for partition, was a proper proceeding to set off dower and homestead and to ascertain and to declare the rights of the children and heirs at law of William A. Bogart, deceased. The land sought to be partitioned largely exceeded in value and area the amount allowed as homestead, and the homestead having never been set off to the widow and children and no assignment of dower having been made, all of said land was subject to partition, and the widow and the adult heirs had the right to have their interest ascertained and declared and the widow's interest commuted. R. S. 1889, sec. 7132. Colvin v. Hauenstein et al., 110 Mo. 575; Rolf v. Timmermeister, 15 Mo.App. 249; Beckner v. McLinn et al., 107 Mo. 277; Hufschmidt et al. v. Gross et al., 112 Mo. 649; Weatherford v. King, 119 Mo. 51. (3) The judgment of partition is a final judgment. Holloway v. Holloway, 103 Mo. 274; Goode v. Lewis, 118 Mo. 357; Hart v. Steedman, 98 Mo. 452. (4) A judgment in partition is as conclusive as any other judgment and is not rendered invalid by reason of the failure of the sheriff to make his report of sale. Akers v. Hobbs, 105 Mo. 127. (5) The judgment of the court in the ex parte partition proceedings or Delilah Bogart et al., is not void; it appears from the record of that suit that the court had jurisdiction both of the subject-matter and the parties to it. If the court then having jurisdiction, in exercising it, rendered a wrong or erroneous judgment, such judgment is not void, nor is it, of the title acquired by a purchaser under it, subject to collateral attack by a party to the suit. Lewis v. Morrow, 89 Mo. 174; Gray v. Bowles, 74 Mo. 419. (6) The minors as well as the adults in the ex parte partition suit are estopped from setting up any claim to the land in dispute. Kerr v. Bell, 44 Mo. 120; Austin v. Loring, 63 Mo. 19; Fischer v. Siekmann, 125 Mo. 165.
Brace, J. Barclay, C. J., however, expressing no opinion as to whether or not the partition judgment was void as to the minors.
This is an action in ejectment to recover possession of a tract of land in Ray county containing about one hundred acres. The answer is a general denial, and a plea of equitable estoppel. The common source of title is William A. Bogart, deceased, who died testate, on the sixteenth of June, 1875, seized in fee simple of the premises, which was a part of his home farm, of three hundred acres, leaving surviving him his wife Delilah, and six minor children, George W., Marticia A., Elizabeth A., Orvilla, Ulysses and Rosezella, his only heirs at law, living with him at the time, on the farm.
The plaintiffs are the said Rosezella, George W., Elizabeth A., and the husband and a daughter of the said Orvilla, since deceased, who claim title as heirs at law and grantees of the other heirs at law of said deceased. It was admitted on the trial "that the other heirs of William A. Bogart have conveyed their interests in the land described in plaintiff's petition," to whom is not said; but as the argument on both sides seems to assume that the conveyance was to the plaintiffs, we so treat the admission. The defendants claim under a sheriff's deed to John Bogart, dated February 11, 1886, in partition of the real estate of said deceased, among his widow and heirs at law, made in pursuance of a sale under a judgment of the circuit court of said county. The case was tried before the court, the finding and judgment were for the defendants, and the plaintiffs appeal. By the last will and testament of the said William A. Bogart, deceased, of which his wife, the said Delilah, was thereby appointed executrix, after directing that certain of his real estate therein described, other than the home place aforesaid, be sold for the payment of his debts, he made the following devise of his remaining real estate, being the home place aforesaid, and in which is included the premises in question, to wit:
"I give and devise unto my said wife, Delilah Bogart, all of my lands, tenements and personal property, and all pertaining to my premises, during the time that she remains my widow and the rents, issues and profits during said period of time; said legacy given to my said wife as aforesaid, I hereby declare is intended to be used in raising and educating my children and for natural love and affection."
Mrs Delilah Bogart qualified as executrix of her husband's estate, duly administered the same, and made...
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