Brown v. Bibb

• Citation: 201 S.W.2d 370,356 Mo. 148
• Decision Date: 10 March 1947
• Docket Number: 39614
• Parties: Tom J. Brown and Ellen W. Smith, Plaintiff-Appellants, v. David B. Bibb and S. B. Bibb, His Wife; Opal Temple and Russell Temple, Her Husband; Agnes Louney, Defendants-Respondents, Bobby Norvell, a Minor, Defendant-Appellant
• Court: United States State Supreme Court of Missouri

201 S.W.2d 370

356 Mo. 148

Tom J. Brown and Ellen W. Smith, Plaintiff-Appellants, v. David B. Bibb and S. B. Bibb, His Wife; Opal Temple and Russell Temple, Her Husband; Agnes Louney, Defendants-Respondents, Bobby Norvell, a Minor, Defendant-Appellant

No. 39614

Supreme Court of Missouri

March 10, 1947

Rehearing Denied April 21, 1947.

Appeal from Pike Circuit Court; Hon. Theodore Bruere Judge.

Affirmed.

Brevator J. Creech for Tom J. Brown and Ellen W. Smith, B. M. Justeson for guardian of Bobby Norvell, a minor, appellants; B. Richards Creech of counsel.

(1) The deed from Elizabeth J. Roberts to Maria A. Roberts and her bodily heirs by Jo Roberts created a "fee tail special" estate. Reed v. Lane, 122 Mo. 311, 26 S.W. 957; Phillips v. LaForge, 89 Mo. 72, 1 S.W. 220; Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641; Kane v. Roath, 310 Mo. 684, 276 S.W. 39; Emmerson v. Hughes, 110 Mo. 627, 19 S.W. 979. (2) The trial court erred in its judgment and decree, as well as in its opinion, in not giving deference to Section 4, Chapter 108, R.S. Mo. 1865 (now Section 3498, R.S. 1939; Sec. 4, R.S. 1865, now Sec. 3498, R.S. 1939). (3) The trial court erred in its judgment and decree, as well as in its opinion, in not giving deferences to Section 6, Chapter 108, R.S. 1865 (now Section 3500, R.S. 1939). Sec. 6, R.S. 1865, now Sec. 3500, R.S. 1939; Sec. 4, R.S. 1865, now Sec. 3498, R.S. 1939; Boone v. Oetting, 342 Mo. 269, 114 S.W.2d 981; Nickols v. Robinson, 277 Mo. 483, 211 S.W. 14; Kennard v. Wiggins, 349 Mo. 294, 160 S.W.2d 706. (4) The trial court erred in its opinion in holding "that the uncertainty of the persons that could take in remainder by reason of said deed from Elizabeth Roberts to Maria A. Roberts, vanished at the death of Joe H. Roberts in 1888. . . ." Byrd v. Allen, 171 S.W.2d 691; Sec. 3499, R.S. 1939. (5) The trial court erred in its opinion in concluding that the judgment of March 14, 1890 against Maria Roberts, Carrie Roberts and Maggie Roberts, was a judgment to foreclose a deed of trust from Joseph H. Roberts and Marie A. Roberts to James S. Reynolds and William E. Reynolds. Souders v. Kitchens, 345 Mo. 977, 137 S.W.2d 501; Allen v. Degroodt, 105 Mo. 442, 16 S.W. 494; Herndon v. Yates, 194 S.W. 46. (6) The statute of limitations could not run against the remaindermen until they became entitled to the right of possession, which would accrue at the death of the life tenant. Herndon v. Yates, supra; Bradley v. Goff, 243 Mo. 95, 147 S.W. 1012. (7) Where a foreclosure is had by decree of court, title would pass to the purchaser as of the date the sheriff's deed was executed and delivered. Patton v. Springfield Fire & Marine Ins. Co., 25 S.W.2d 1075, 223 Mo.App. 1070. (8) Purchaser at execution sale not permitted to set up title against the subsisting equities of those not parties to the suit. Sec. 3460, R.S. 1939; Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631; Boone v. Oetting, 342 Mo. 269, 114 S.W.2d 981. (9) The defense of estoppel cannot be invoked against the plaintiffs in the case at bar. Sec. 3460, supra; Emmerson v. Hughes, 110 Mo. 627, 19 S.W. 979; Rossi v. Davis, 133 S.W. 363. (10) No privity exists between the appellants and the parties -- defendant in the suit of Walker Davis v. Maria Roberts, Carrie Roberts and Maggie Roberts. Boone v. Oetting, supra; Dillard v. Owens, 122 S.W.2d 76, 342 Mo. 269. (11) The judgment of 1890 was merely a money judgment and the special execution issued in pursuance thereto, was issued for the sole legal purpose of levying upon the sole interest of the life tenant, Maria Roberts and the contingent remaindermen Carrie Roberts and Maggie Roberts; likewise, the sale and the Sheriff's Deed, together with the acknowledgment and approval of the court thereon, which followed, was of the same tenor and effect. McKenzie v. Missouri Stables, Inc., 34 S.W.2d 136; 60 C.J., p. 695, sec. 2; Hunter v. Delta Realty Co., 169 S.W.2d 936, 350 Mo. 1123; 34 C.J. 818, sec. 1235; 37 C.J., p. 320, sec. 25; Dillard v. Owens, 122 S.W.2d 76; Riggs v. Moise, 128 S.W.2d 632, 344 Mo. 177; Jones v. Peterson, 72 S.W.2d 76, 335 Mo. 242; Dillard v. Owens, supra; Boone v. Oetting, 114 S.W.2d 981; Secs. 4, 6, Chap. 108, R.S. 1865, now Secs. 3498, 3500, R.S. 1939; Johnson v. Johnson, 56 S.W.2d 1069; Perry v. First Natl. Bank, 91 S.W.2d 78, 230 Mo.App. 374; 5 L.R.A. (N.S.) 850. (12) The judgment and decree of 1890 was void for the reason that the plaintiffs petition, as well as the decree of the court, each show upon their face that the trial court of 1890 did not legally have jurisdiction of the question of subrogation, or did not have the power to grant the particular relief which the court of 1890 assumed to afford to Walker Davis, namely to be subrogated to the rights of David E.S. Taylor. McKenzie v. Missouri Stables, Inc., 34 S.W.2d 136; Gray v. Clement, 296 Mo. 497, 246 S.W. 940; State ex rel. Natl. Lead Co. v. Smith, 134 S.W.2d 1061; Herndon v. Yates, 194 S.W. 46. (13) The respondents in the case at bar were not innocent purchasers without notice. Secs. 3426, 3427, 3460, R.S. 1939; Secs. 4, 6, R.S. 1865, now Secs. 3498, 3500, R.S. 1939; Boone v. Oetting, supra.

Edward V. Long and F. D. Wilkins for David B. Bibb and S. B. Bibb, his wife, Opal Temple and Russell Temple, her husband, respondents; Rendlen, White & Rendlen of counsel.

(1) Jo H. Roberts, husband of Maria A. Roberts died in 1888. There were then only two children of such marriage both living namely Carrie Roberts and Maggie Roberts. They are both dead and appellants are their only descendants and heirs. (2) The heirs of the body of Maria A. Roberts by Jo H. Roberts were determinable when Jo H. Roberts died. The fee to the 120 acres then vested in said above two children subject to the life estate of Maria A. Roberts. The contingency or uncertainty as to the bodily heirs of Maria A. Roberts by Jo H. Roberts on Jo H. Roberts' death ended and then became realized, fixed, certain and absolute, i.e., the said two children who were parties to the suit resulting in the judgment of March 14, 1890. The trial court in its opinion so correctly found and ruled. Gray v. Ward, 234 Mo. 291, 136 S.W. 405; Summet v. Realty & Brokerage Co., 208 Mo. 501. (3) In the suit wherein judgment was rendered and whereon sale was had and Maria A. Roberts, life tenant was purchaser, she and her two children, the only children of her body by Jo H. Roberts, were parties to and duly represented by guardian ad litem in said suit. The judgment was binding and conclusive upon said two children and their unborn heirs, though not in esse and though not otherwise made parties. White v. Campbell, 316 Mo. 949, 952, 292 S.W. 51; Jackson v. Miller, 288 Mo. 233, 232 S.W. 104; King v. Theis, 272 Mo. 416, 199 S.W. 193; 34 C.J. 1000; Souders v. Kitchens, 137 S.W.2d l.c. 503. (4) The parties to this action are privies either in blood, in estate or in law to the parties in the action wherein the lands were sold under the judgment of the Circuit Court of Pike County, Missouri, rendered March 14, 1890 and said judgment is binding upon them, bars the present action and is res adjudicata. Fee title passed by the judicial sale thereunder. Summet v. Realty Co., 208 Mo. 501; Litchfield v. Crane, 123 U.S. 551, 31 L.Ed. 199; Crispen v. Hannovan, 50 Mo. 415. (5) The Circuit Court of Pike County, Missouri, had jurisdiction of the persons and of the subject matter, including the question of subrogation, in the suit brought by Walker Davis decided March 14, 1890. And, having once acquired jurisdiction, the court retained it until full justice had been done between the parties. Sec. 3324, R.S. 1939; Sec. 8347, R.S. 1889; Phelps v. Scott, 325 Mo. 711, 30 S.W.2d 71; Cowgill v. Linville, 20 Mo.App. 138. (6) Having paid the debt Walker Davis became instantly subrogated to the rights, remedies, securities, funds, liens and equities which David E.S. Taylor had for the same debt. Miller v. Woodward, 8 Mo. 169; Furnold v. Bank, 44 Mo. 336; Berthold v. Berthold, 46 Mo. 557; McKay v. Snider, 190 S.W.2d 886. (7) The same under the deed of trust and the lien thereof reinstated and ordered foreclosed by this judgment under special execution passed the fee simple title to the purchaser, Maria Roberts. (8) The debt decreed an equitable lien upon the land in suit by the judgment of March 14, 1890 was against Maria A. Roberts, and her two children, Carrie Roberts and Maggie Roberts. It was a lien and debt for which the heirs of the body of Maria A. Roberts by Jo H. Roberts and the life tenant, said Maria were proportionably liable so far as it concerned any interest in the land now and there in suit. Souders v. Kitchens, 345 Mo. 977, 137 S.W.2d 501. (9) At the judicial sale wherein life tenant, Maria A. Roberts, was purchaser and did not procure the action or sale thereunder, she as life tenant could and did purchase and acquire the fee simple title. Such sale extinguished the remainder interests including that asserted by appellants in this action. Maria Roberts had as much right to buy at such sale as would a stranger. Dudgeon v. Hackley, 182 S.W. 1004; Bragg v. Ross, 162 S.W.2d 263; Owen v. Long, 104 S.W.2d 365, 340 Mo. 539; Starkweather v. Jenner, 216 U.S. 524, 30 S.Ct. 382, 54 L.Ed. 602, 17 Ann. Cas. 1167. (10) One who purchases land under a judgment of a court of competent jurisdiction, in good faith is entitled to protection, absent collusion, fraud or deceit, which has no place in this case as such did not exist. Starkweather v. Jenner, 216 U.S. 524, 30 S.Ct. 382, 54 L.Ed. 602, 17 Ann. Cas. 1167; Bragg v. Ross, 162 S.W.2d l.c. 266; 66 C.J. 1003, sec. 1103; Owen v. Long, 104 S.W.2d 365, 340 Mo. 539. (11) At best the heirs of the body of Maria A. Roberts by Jo H. Roberts only had the right, if they saw fit, to pay their share of...