Burden v. Johnson

• Citation: 81 Mo. 318
• Parties: BURDEN et al., Plaintiffs in Error, v. JOHNSON et al.
• Decision Date: 30 April 1884
• Court: United States State Supreme Court of Missouri

81 Mo. 318

BURDEN et al., Plaintiffs in Error,

v.JOHNSON et al.

Supreme Court of Missouri.

April Term, 1884.

Error to Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

AFFIRMED.

John J. Cockrell for plaintiffs in error.

The petition in this case is a supplementary bill filed by the assignees, by subrogation of the plaintiffs, against the heirs of the original defendants, to bring in and sell the interest of a party who should have been a party to the original action. A supplementary bill must be filed in the original cause, and may be filed at any time, either before or after a final decree. Story's Eq. Plead., p. 338. And relief can only be obtained in such original action. Goodenow v. Ewer. 16 Cal. 411. There is no defect of parties plaintiff or defendant. Ella F. Culley is only heir of original defendants, and is also the new party whose title is sought to be reached by the supplementary bill. Petitioners show that they hold under purchases at execution sale, and hence are subrogated to the rights of the original plaintiffs, and entitled to the relief prayed. Sheldon on Subrogation, §§ 33, 34, 38. This action is not barred by limitations, lapse of time or presumption of payment of the judgment in probate court. Petitioners occupy the position of mortgagees in possession. While they are in possession, the statute cannot run against them. The statute only commenced to run against petitioners after they were ejected. The proposition seems almost too plain to argue. When a party with a defective title to real estate, is in possession under his title, limitation is not running against him, but against the party not in possession. The petition shows that some of the petitioners are still in possession, and others recently ejected. Under such circumstances, the rights claimed by petitioners here cannot be barred by statute of limitations or lapse of time. Caldwell v. Palmer, 6 Lea (Tenn.) 652; Brobst v. Brock, 10 Wall. 519. The petition states a good cause of action. The petitioners, by subrogation, stand in exactly the same position as the original plaintiffs, as far as the amount of purchase money paid by their grantors at the execution sale. The object of the original action was to sell certain real estate to satisfy a debt--the same as a mortgage foreclosure. The defect in the title was caused by failure to join a necessary party defendant, as would be the case in a foreclosure case where the grantee of the mortgageor was not a party. Petitioners are entitled to the relief prayed. Sheldon on Subrogation, §§ 33, 34, 38; Goodenow v. Ewer, 16 Cal. 471; Boggs v. Hargrave, 16 Cal. 566; Burton v. Lies, 21 Cal. 91; Freeman on Void Judicial Sales, § 47, p. 65; Freeman on Ex., §§ 54, 362, p. 548; Ross v. Boardman, 22 Hun (N. Y.) 527; Brobst v. Brock, 10 Wall. 519; Caldwell v. Palmer, 6 Lea (Tenn.) 652.

S. T. White for respondent.

The petition contains no facts showing a right of substitution in plaintiffs in error, as plaintiffs of the original suit. Clamorgan v. Guisse, 1 Mo. 141; Lindall v. Brunt, 17 Mo. 150. The petition states no facts showing that plaintiffs are entitled to relief in this action. There is no equity in the bill. Hendricks v. Wright, 50 Mo. 311; Daily v. Jessup, 72 Mo. 144; Bishop on Con., § 144. Plaintiffs are barred in this proceeding by lapse of time. Rogers v. Brown, 61 Mo. 187; Hughes v. Littrell, 75 Mo. 573. This proceeding has no parallel. It is an attempt to assert newly acquired rights under the title of an old action that had passed into a judgment almost twenty years before this one was begun. Neither the rights nor the parties are the same in the two actions. The plaintiffs were purchasers at a sheriff's sale under the rule of caveat emptor, and merely took, in law and equity, what the judgment gave them.

MARTIN, C.

On the 23rd of January, 1880, the plaintiffs in error filed a petition in equity against Ella F. Cully and James W. Cully, her husband, which had for its object the opening up and widening of a decree rendered April 19th, 1861, in a certain suit wherein James M. Burden and Charles Burden, were plaintiffs, and Amos M. Perry, administrator of William Burden, Rosannah M. Johnson and William Johnson, were defendants.

The proceeding is an unusual one, both in form and scope. The defendants demurred for insufficiency of facts to constitute a cause of action, and the demurrer was sustained. Upon this ruling final judgment was entered, from which the plaintiffs have prosecuted their writ of error. The facts disclosed in the petition are substantially as we recite them, in a different grouping and phraseology.

As early as May, 1854, William Burden was indebted to his sons James and Charles, in the sum of $1,157 for money borrowed and other considerations. During the existence of this indebtedness, said William Burden entered into a marriage contract with Rosannah M. Paden, and in consideration of a marriage, which was afterward consummated, he, on the 11th of May, 1854, conveyed to her and to her heirs begotten by him, certain parcels of real estate which are described in the petition. On the 29th of September, 1855, William Burden died without having discharged the indebtedness aforesaid, leaving his widow and one child, named Ella F. Burden, surviving him. His widow was afterward married to William Johnson, and his daughter to James W. Cully.

William Burden's estate not being sufficient to pay his debts, his two sons, James and Charles, on the 10th of March, 1858, commenced a suit in the nature of a creditor's bill, for the purpose of setting aside the ante-nuptial contract of their father, and subjecting the real estate settled by him upon his intended wife, to the demands of his creditors, upon the ground that the settlement was void as against creditors. In this suit the widow and the administrator were the only parties proceeded against. The suit resulted in a decree for plaintiffs, on the 19th of April, 1861, charging the real estate with the debt described in the petition, and ordering a sale of so much of the lands as would be required to satisfy it. Curious enough, as it seems from recitals in the decree, Ella F. Cully and James W. Cully, by attorney, appeared and moved in arrest of the decree, although no parties to it. Their motion was overruled. They also tendered a bill of exceptions, which was allowed and signed.

By virtue of a special execution to enforce the decree, a sale of a...