Boone v. Oetting

• Decision Date: 01 April 1938
• Docket Number: 35000
• Citation: 114 S.W.2d 981,342 Mo. 269
• Parties: Hattie May Boone, Olive A. Bracken, Frank F. Bozarth, Charles A. Bozarth, Will S. Bozarth, Mavis Hayse and John Arlington Erdwins, by John Erdwins, his next friend, v. Arthur Oetting, Otto Ehlers and Theo. L. Bartman. Appellants
• Court: Missouri Supreme Court

114 S.W.2d 981

342 Mo. 269

Hattie May Boone, Olive A. Bracken, Frank F. Bozarth, Charles A. Bozarth, Will S. Bozarth, Mavis Hayse and John Arlington Erdwins, by John Erdwins, his next friend, v. Arthur Oetting, Otto Ehlers and Theo. L. Bartman. Appellants

No. 35000

Supreme Court of Missouri

April 1, 1938

Appeal from Johnson Circuit Court; Hon. Leslie A. Bruce Judge.

Reversed and remanded (with directions).

Carl L. Ristine, James H. Linton and Blackwell & Sherman for appellants.

(1) Six of the seven respondents who were parties to said partition suit are not entitled to recover in this action because, by accepting and retaining their respective shares of the proceeds of the partition sale, knowing the source thereof they ratified the proceeding, and are estopped to attack the validity of the judgment. Virgin v. Kennedy, 326 Mo 412; Bogart v. Bogart, 138 Mo. 419; Fischer v. Siechmann, 125 Mo. 165; Hector v. Mann, 225 Mo. 248; Lawson v. Cunningham, 275 Mo. 157; Milan Bank v. Richmond, 280 Mo. 40; Barron v. Store Co., 292 Mo. 216; Marsdon v. Nipp, 325 Mo. 834; McClanahan v. West, 100 Mo. 309; Jones v. Patterson, 307 Mo. 476; Procter v. Nance, 220 Mo. 114; Secs. 430, 432, 434, R. S. 1929. (2) These six respondents who were parties in said partition suit, even if without knowledge as to the source of the money they received, cannot be allowed to recover without refunding with interest what they received from the proceeds of the sale under the partition judgment, or without refunding their share of the purchase price paid by defendant Oetting. They cannot have both the money and the land. Highly v. Barron, 49 Mo. 103; Scott v. Royston, 223 Mo. 615; Hector v. Mann, 225 Mo. 248; Austin v. Loring, 63 Mo. 22; Marsden v. Nipp, 325 Mo. 834; Berry v. Stigall, 253 Mo. 690; Shanklin v. Ward, 291 Mo. 18; Secs. 430, 432, 434, R. S. 1929. (3) Defendant Ehlers as the owner of a note for $ 6000, executed by defendant Oetting and secured by deed of trust on the land, is a bona fide holder for a valuable consideration without notice of any adverse claims. He made the loan in good faith believing that Oetting was the owner of the land. If plaintiffs, or any of them, should be permitted recovery then Ehlers' rights must be adjudicated.

Thomas F. Doran, Clayton E. Kline, Harry W. Colmery, M. F. Cosgrove, Balfour S. Jeffrey and M. D. Aber for respondents.

(1) The attempted partition proceeding of 1912-14 being void ab initio, in violation of an express statute, the court cannot now be estopped into jurisdiction. A void proceeding cannot repeal Section 1557, Revised Statutes 1929. Shoe Co. v. Ramlose, 231 Mo. 536; Drainage District v. Voltmer, 256 Mo. 152; Carter v. Carter, 237 Mo. 624; State ex rel. v. Murphy, 134 Mo. 567; Powell v. Bowen, 279 Mo. 293; State ex rel. v. Nixon, 232 Mo. 506; Railroad v. Kemper, 256 Mo. 506; Grafaman Co. v. Bank, 315 Mo. 849; Bank v. Trust Co., 187 Mo. 522; Mellon v. Stockton, 30 S.W.2d 974; Horse Co. v. Ry. Co., 200 S.W. 109; Dougal v. Fryer, 3 Mo. 40; Loud v. Trust Co., 298 Mo. 27; 21 C. J. 1201. (2) Even if plaintiffs were otherwise estopped, their offer to make any refund decreed, or to do equity, prevents estoppel. DeLashmutt v. Teator, 261 Mo. 444. (3) The receipt of the small portions of money paid in the void proceeding do not constitute an estoppel. They were not relied upon. The defendants relied upon the attempted judgment. Under no theory could they amount to more than a ratification. Grafaman Co. v. Bank, 315 Mo. 869; 21 C. J. 1115. (4) Real estate cannot be conveyed by an estoppel, but only by an instrument in writing, duly acknowledged and delieverd. Secs. 2967, 3014, R. S. 1929; 21 C. J. 1201; Tapley v. Ogle, 162 Mo. 190; Hubbard v. Slavens, 218 Mo. 598. (5) No set rule exists governing estoppels. Each case must rest upon its own equities. State ex rel. v. Haid, 328 Mo. 749; 10 R. C. L. 689, sec. 19. (6) No estoppel nor other similar plea can avail as against an express statute. Blair Baker Co. v. Railroad, 200 S.W. 109; Mellon v. Stockton, 30 S.W.2d 774. (7) Estoppel, when otherwise available, can be invoked only to prevent loss, or other inequitable result to one otherwise without remedy. It cannot be utilized to work a gain to any litigant. Loan Co. v. Ins. Co., 330 Mo. 988, 52 S.W.2d 11; State v. Hamilton, 303 Mo. 317; Kline v. Groeschner, 280 Mo. 599; Thompson v. Lindsay, 242 Mo. 76; 10 R. C. L. 697, sec. 25; Alexander v. Ins. Co., 58 Am. St. Rep. 869.

Gantt, J. All concur, except Hays, J., absent.

OPINION

GANTT

Action in ejectment and to determine title to the east half of the northeast quarter and the east half of the southeast quarter of Section 10, Township 47, Range 25, Johnson County, Missouri, except forty acres in the southeast part of the southeast quarter of said section. Judgment for plaintiffs and defendants appealed.

The common source of title is Sanford S. Foster, who died testate in June, 1884. Plaintiffs claim under his will. Defendants claim under a partition sale of the land. The devisees of Sanford S. Foster were the parties to the partition suit. He devised the above-described one hundred sixty acres to his daughter, Mary S. Bozarth, and her bodily heirs. She had children as follows: Hattie N. Boone, Olivia Bracken, Bessie McNary, and Charles, William, Frank and Beulah Bozarth. On March 18, 1912, A. N. Craig was appointed curator of the estates of the minor children, Beulah, Charles and William. On April 15, 1912, Mary S. Bozarth and said minors, by curators, filed suit against the other children to partition the land. Mavis McNary (now respondent Mavis Hayse) was substituted as defendant in lieu of her deceased mother, Bessie L. McNary. She defended by guardian ad litem. Partition was decreed. On March 16, 1914, and under said decree, the sheriff sold the land at public sale to Mary S. Bozarth, the mother, for $ 5840. The court determined the value of the life estate of the mother to be $ 3096.90, which, deducted from the $ 5840 left $ 2743.10 due on the purchase price. The mother borrowed $ 1800 and secured the same by a deed of trust on the one hundred twenty acres. On March 20, 1914, the sheriff delivered to her the partition deed in which he acknowledged receiving the $ 5840. Of course, he only received $ 2743.10 which was due after deducting the value of the life estate from the $ 5840. On deducting $ 419.80, the costs and expenses of the partition, from the $ 2743.10, there remained $ 2323.30 which the court ordered distributed among the seven children. After the distribution Beulah Bozarth married John Erdwins. The plaintiff herein, John A. Erdwins, was born of that marriage. He is the only child of Beulah Bozarth, who died in 1921.

On default in the payment of the $ 1800 note, and on September 18, 1921, the one hundred twenty acres of land was sold under the deed of trust to defendant Oetting for $ 2300. In due course he entered and continues in possession of the land.

On March 19, 1927, Oetting borrowed $ 6000 from the Concordia Savings Bank and secured the same by a deed of trust on the land. On maturity of the $ 6000 note in March, 1932, he borrowed from defendant Ehlers $ 6000, gave a deed of trust on the land to secure the same and paid the bank. Mary S. Bozarth died July 13, 1932. This suit was instituted on September 8, 1932, to recover the land.

In the petition herein the plaintiffs tendered into court any money which the court might find should be paid by them to defendants in adjusting the equities.

Defendants pleaded at length the partition proceedings, alleged that the title to the land as between the parties was finally determined in that suit, and that judgment therein was res judicata of the question of title herein. Defendants also pleaded at length the court's order of distribution in the partition suit; that each of the plaintiffs herein accepted from the sheriff their pro rata share of the money ordered distributed, with full knowledge that said money was intended as payment for his or her interest in the land, and for that reason plaintiffs herein are estopped from claiming an interest in the land.

The reply was a general denial with a renewal of the aforesaid tender of money into court.

On the first count judgment was for plaintiffs for possession and damages in the sum of $ 1, and monthly rents at $ 20 from the date of the judgment.

On the second count the court decreed that plaintiffs were the owners in fee of the land, subject only to the lien of taxes remaining unpaid since the termination of the life estate; that defendants have no interest in or lien on the land and that plaintiffs are entitled to immediate possession.

In the trial court the defendants relied on both res judicata and estoppel. In this court they abandoned the defense of res judicata and, in doing so, stated as follows:

"Under the rulings of this court in Gray et al. v. Clement et al., 286 Mo. 100, and in the same case on the second appeal, 296 Mo. 497, and in cases decided thereafter, the judgment of the Circuit Court of Johnson County, rendered on the 13th day of February, 1914, for partition and sale of the land herein involved, is void, and subject to collateral attack, for the reason that, under the will of Sanford S. Foster his daughter, Mary S. Bozarth, took a life estate with remainder to the heirs of her body, and the court was without jurisdiction to render the judgment in the partition suit."

They contend here that acceptance by plaintiffs of their pro rata share of the money ordered distributed by the trial court in the partition suit, with full knowledge that said money was payment for his or her interest in the land, estopped plaintiffs from claiming an interest in the same. The rule is well stated as follows:

"There is no rule...