Brown v. Simpson
| Decision Date | 04 March 1918 |
| Docket Number | No. 19127.,19127. |
| Citation | 201 S.W. 898 |
| Parties | BROWN v. SIMPSON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Montgomery County; James D. Barnett, Judge.
Ejectment by John C. Brown against Mary Simpson. Judgment for plaintiff, and defendant appeals. Reversed and rendered.
On January 3, 1914, plaintiff filed in the circuit court of St. Charles county, Mo., his petition, in two counts, to quiet title to about 91 acres of land in St. Charles county, and to recover possession of same. In the first count he sought to have the title to said land determined, and the second count was ejectment to recover possession of same. The case was transferred to the circuit court of Montgomery county on change of venue and tried there.
At the trial plaintiff dismissed as to the first, and tried the action of ejectment under the second count. The answer as to latter count contained a general denial, and after setting out the history of certain litigation between these parties concerning the title to the land in controversy then pending in the Supreme Court of Missouri on this defendant's appeal, she asked that the litigation involved in the present action be continued until the rights of these parties in respect to said land should be determined by the Supreme Court on her appeal. Defendant also filed a written motion asking for the postponement of this cause on account of the pendency of her said appeal. She produced evidence showing that the title to the land in controversy was involved in the above appeal, and that both plaintiff and defendant were parties to said action. The court overruled defendant's motion, and proceeded with the trial of the cause. Defendant's exceptions to the action of the court in overruling her motion to postpone the cause were duly saved by a timely bill of exceptions.
Plaintiff introduced in evidence a stipulation, filed in this cause on January 23, 1915, which discloses the facts relating to both suits substantially as follows: (1) Wiley D. Simpson at his death was the owner of the real estate described in petition. (2) At the date of his death he occupied and used said real estate as his homestead. His widow and four of their minor children lived with him on said premises at said time, and they had used the same as their homestead for a number of years before. (3) Said Wiley D. Simpson died intestate in St. Charles county, Mo., on or about December 17, 1910, and left surviving him his widow, Mary Simpson, who is the defendant in this suit, and the following named minor children, viz.: Frank Simpson, Joseph Simpson, Lora Simpson, and Beulah Simpson—and also left surviving him other children who were more than 21 years of age. (4) On September 28, 1912, Harriet U. Dalton, John C. Brown, and Lucy L. Brown, his wife, as plaintiffs, filed a partition suit in the circuit court of St. Charles county, Mo., against Senoey Simpson, William Simpson, Frank Simpson, Bertha Simpson, Joseph Simpson, Lora Simpson, and Beulah Simpson, as defendants; that all of abovenamed defendants were properly served with process; that the general purpose of said litigation was to partition the real estate in controversy. (5) At the March term, 1913, of said court, the defendant herein, Mary Simpson, entered her appearance in said cause, set up the homestead rights of herself and minor children in the real estate aforesaid, and asked to have commissioners appointed to set off the same. (6) At said March term, 1913, the former order of sale and the subsequent sale of said real estate under said order were set aside, and commissioners appointed to set off said homestead. (7) The commissioners thus appointed set off a homestead out of said land for the widow and minor children aforesaid. On motion of the plaintiffs in said partition suit the circuit court of St. Charles county, Mo., set aside the report of said commissioners in assigning and setting off said homestead, directed the sale of all the real estate in controversy, including said homestead, and ordered that the sum of $1,500 out of the proceeds of sale be held in trust, and the income thereof be paid to said widow and minor children in lieu of a homestead in kind in said real estate. (8) At the November term, 1913, of the St. Charles circuit court the real estate in controversy was sold under said last-named order of sale. A report of such sale was filed in said cause on November 10, 1913. On November 3, 1913, before said sale was made, defendant, Mary Simpson, filed her motion to set aside said order of sale, and to confirm the report of said commissioners, or to have new commissioners set out the homestead in kind, which said motion the court overruled. After the report of sale was filed defendant herein filed a motion in writing asking the court to set aside such sale, and to have her homestead set off, which said motion was overruled. (9) At said sale the plaintiff herein, John C. Brown, became the purchaser, and at the November term, 1913, of said court, said sale was approved, a deed ordered to be made by the sheriff to plaintiff for said land, and a final judgment was entered in said cause. (10) Said Mary Simpson at the November term, 1913, of said court, and within four days after the rendition of the final judgment in said cause, filed her motion for a new trial, which was overruled by the court, the cause duly appealed to the Supreme Court, and the same was pending here when said trial took place. (11) It was further agreed in said stipulation that the plaintiff, John C. Brown, claimed and owned only such title to said real estate as was acquired by him under said sheriff's deed in partition made to him in said proceeding; that the defendant, Mary Simpson, owns and claims no right, title, or interest in said real estate, save only such rights and interests as she holds therein as the widow of said Wiley D. Simpson, deceased. (12) It was agreed that all the proceedings in the partition suit subject to relevancy and competency might be considered in evidence.
It was conceded by counsel for defendant herein that appellant, Mary Simpson, with said minor children, are in possession of the real estate aforesaid, and have been in possession of same since the death of said Wiley D....
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State ex rel. Kansas City v. Harris
...not to dismiss it or to prohibit its prosecution. This principle is well settled. Sharkey v. Kiernan, 97 Mo. 102, 10 S.W. 886; Brown v. Simpson, 201 S.W. 898; Aetna Ins. v. Carondelet, 51 F.Supp. 500; Greer v. Scearce, 53 F.Supp. 807; State ex rel. Bernero v. McQuillin, 246 Mo. 517, 152 S.W......
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State ex rel. Kansas City v. Harris
...not to dismiss it or to prohibit its prosecution. This principle is well settled. Sharkey v. Kiernan, 97 Mo. 102, 10 S.W. 886; Brown v. Simpson, 201 S.W. 898; Aetna Ins. Co. v. Carondelet, 51 F. Supp. 500; Greer v. Scearce, 53 F. Supp. 807; State ex rel. Bernero v. McQuillin, 246 Mo. 517, 1......
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