Campbell v. Campbell

• Decision Date: 10 November 1942
• Docket Number: 38008
• Parties: Helen Pearl Campbell, Plaintiff in Error, v. Ervin W. Campbell, Defendant in Error
• Court: Missouri Supreme Court

165 S.W.2d 851

350 Mo. 169

Helen Pearl Campbell, Plaintiff in Error, v. Ervin W. Campbell, Defendant in Error

No. 38008

Supreme Court of Missouri

November 10, 1942

Writ of Error to Cass Circuit Court; Hon. Leslie A Bruce, Judge.

Reversed and remanded.

Albert Thomson, Roy B. Thomson and Ryland, Stinson, Mag & Thomson for plaintiff in error.

(1) The judgment rendered on July 29, 1929, is erroneous for each of the following reasons: (a) The judgment is based upon a stipulation for settlement which neither the minor defendant nor her next friend had capacity to enter into; and (b) The judgment is not confined to the issues made by the pleadings. Robison v. Floesch Const. Co., 291 Mo. 34, 236 S.W 332; Mo. Pac. Ry. Co. v. Lasca, 79 Kan. 311; Kingsbury v. Buckner, 134 U.S. 650, 33 L.Ed. 1047; Sutton v. Anderson, 326 Mo. 304, 31 S.W.2d 1026; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008; Charles v. White, 214 Mo. 187; Munday v Vail, 34 N. J. Law 418; Congregation B'Nai Abraham v. Arky, 323 Mo. 776, 20 S.W.2d 899; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9. (2) The anomalous entry of March 28, 1936, is a nullity. State ex rel. Holtkamp v. Hartmann, 330 Mo. 386, 51 S.W.2d 22; Clancy v. Luyties, 321 Mo. 285, 10 S.W.2d 914; Williams v. Walton, 84 Mo.App. 438; Burnside v. Wand, 170 Mo. 531, 71 S.W. 337; 62 L. R. A. 427; Haycraft v. Haycraft, 141 S.W.2d 170. (3) The petition for writ of error in this case was filed and the writ issued in due time and within three years after the plaintiff in error attained her majority. State ex rel. Marlowe v. Nolan, 146 S.W.2d 598.

G. R. Chamberlin for defendant in error.

That part of the judgment which plaintiff in error seeks to have reviewed is within the issues made by the pleadings. Spotts v. Spotts, 55 S.W.2d 977, 331 Mo. 917, 87 A. L. R. 660; Gilliland v. Bondurant, 59 S.W.2d 679, 332 Mo. 881; Robison v. Floesch Const. Co., 236 S.W. 332, 291 Mo. 34; 31 C. J. 1169, sec. 357; West St. Louis Trust Co. v. Brokaw, 102 S.W.2d 792, 232 Mo.App. 209; Stephens v. Curtner, 222 S.W. 497, 205 Mo.App. 255; Sec. 395, R. S. 1939.

Dalton, C. Hyde, C., not sitting; Bradley, C., concurs.

OPINION

DALTON

Writ of error to the Circuit Court of Cass County. From the return it appears that on April 17, 1929, while plaintiff in error was a minor and under the age of 14 years, a suit was instituted in said court on her behalf, by her duly appointed next friend, to quiet and determine title to 264 acres of described real estate in said county. Judgment was entered in said cause on July 29, 1929; and, on March 28, 1936, a nunc pro tunc entry was made amending the judgment. The petition for the writ was filed on October 2, 1941, under the provisions of Sec. 1202, R. S. 1939, Mo. Stats. Ann., Sec. 1036, p. 1330. We have jurisdiction, because title to real estate is directly involved. Article 6, Sec. 12, Constitution of Missouri, 15 Mo. Stats. Ann., p. 561.

It appears from the petition for the writ of error and certain verified exhibits filed in this cause, including a certified copy of a birth certificate, that plaintiff in error was born November 19, 1917, near Garden City, Missouri and became 21 years of age on November 19, 1938. In the absence of any denial, we shall consider the statements true and assume that the writ of error was sued out within 3 years after the removal of her disability. State ex rel. Marlowe, Collector of New Madrid County, v. Nolan, 347 Mo. 124, 146 S.W.2d 598, 600. Notice of the writ required by Sec. 1217, R. S. 1939, Mo. Stats. Ann., Sec. 1051, p. 1335, was duly served on the attorney of record for defendant in error. A transcript of the record and all proceedings in the quiet title suit was duly filed in this court on January 9, 1942.

The first record entry in the court below was the order of the circuit clerk appointing Cora Spencer next friend for Helen Pearl Campbell, a minor, to institute and prosecute the action against Ervin W. Campbell (defendant in error in this proceeding). The order recites that Cora Spencer had petitioned for such appointment; that she was the mother of the minor, who resided with her; that the minor was under the age of 14 years and had no legally appointed guardian; and that Cora Spencer (the applicant) had consented in writing to act as such next friend.

Immediately after said appointment, suit was instituted by said minor, by her said next friend, against Ervin W. Campbell to quiet and determine title to the described real estate. In this connection we may say that it appears from the exhibits on file in this court, corroborated by recitals appearing in the record, that Cora Spencer and Ervin W. Campbell had been married and later divorced; that they were the parents of the infant plaintiff; and that Cora Spencer had married again prior to the institution of the suit.

The petition, in somewhat conventional form under Sec. 1684, R. S. 1939, Mo. Stats. Ann., Sec. 1520, p. 1682, alleged that plaintiff was the owner of the described real estate; that the land was formerly owned by Mary F. Campbell, who died in April, 1929; that, while owning said land, Mary F. Campbell on October 5, 1927, by warranty deed conveyed the land to Henry G. Hinkle; that the deed was never recorded and was either lost, destroyed or in the possession of defendant; that on April 12, 1929, Henry G. Hinkle conveyed said land by quitclaim deed to plaintiff; that the defendant claimed some right, title or interest in and to said land, adverse to the title of plaintiff; and that defendant was the sole heir of Mary F. Campbell, deceased. Plaintiff prayed judgment that plaintiff was the absolute owner in fee simple of the described real estate and that defendant had no right, title or interest therein.

On May 6, 1929, defendant appeared in said court and, on application of plaintiff, a receiver was appointed. Thereafter, on May 23, 1929, defendant filed his answer to plaintiff's petition by which he admitted that Mary F. Campbell had owned the described real estate and that Henry G. Hinkle had executed a quitclaim deed to plaintiff, but defendant denied that plaintiff was the owner of the described land or had ever had any interest in it. He denied that Hinkle had any right, title, or interest at the time the quitclaim deed was executed, and alleged that Mary F. Campbell died, intestate, owning the real estate; that he (defendant) was her only heir; and that he inherited the land from her and owned it in fee simple. He asked judgment that he was the absolute owner in fee simple of the described land; and that title be quieted against any claim or interest of plaintiff.

On July 26, 1929, a stipulation and contract for the settlement of said pending suit was filed with the clerk of said circuit court. The contract and stipulation purported to be signed by Cora Campbell Spencer, guardian and next friend of Helen (Pearl) Campbell, a minor, Ervin W. Campbell, Administrator of (the estate of) Mary F. Campbell, deceased, and Henry G. Hinkle, Cora Campbell Spencer and Ervin W. Campbell, individuals. There is nothing in the contract or record in this cause to show that Cora Campbell Spencer was ever appointed guardian of Helen Pearl Campbell, a minor, by any probate court or that any such court approved such contract by such guardian and, further, there is nothing in this record to show that Cora Campbell Spencer, as guardian of Helen Pearl Campbell, a minor, Ervin W. Campbell, as administrator of the estate of Mary F. Campbell, deceased, Cora Campbell Spencer, in her own right, or Henry G. Hinkle were ever parties to the proceeding to quiet and determine title to the said real estate, although their names appear on the stipulation and contract along with those of the parties to the suit.

The stipulation and contract recited that the quiet title suit instituted by Cora Campbell Spencer, as "guardian" of Helen Pearl Campbell, against Ervin W. Campbell, was pending; that proceedings had been commenced in the probate court of Cass County by Ervin W. Campbell to take from Henry G. Hinkle certain property inventoried in said court as belonging to the estate of Mary F. Campbell, deceased; that a proceeding in replevin to recover property of said estate was pending before a Justice of the Peace at Harrisonville; that Cora Campbell Spencer was, under a judgment of the circuit court of Jackson County, entitled to $ 1250 from Ervin W. Campbell for maintenance of Helen Pearl Campbell; and that, for the purpose of settling and adjusting the rights of the several parties, it was agreed: (1) "That there shall be a decree of the circuit court of Cass County . . . vesting the title to all of said land in Ervin W. Campbell, subject only to the indebtedness herein mentioned" (italics ours); (2) "that there shall be a finding of the probate court of Cass County . . . vesting the title to the personal property in dispute . . . in the said Henry G. Hinkle and vesting . . . the title to the personal property taken under the writ of replevin in the administrator . . ."; (3) "vesting the title to the crops grown on the land above described and growing on the land above described in the said Ervin W. Campbell . . ."; (4) that "the proceeds of property sold by Henry G. Hinkle shall be his"; (5) that Ervin W. Campbell execute one note for $ 1500 and one for $ 400, both due August 1, 1931, also, one note for $ 800 due August 1, 1932, and one for $ 5300 due August 1, 1935, and secure all of said notes by a deed of trust on 200 acres of the described land, subject to a first deed of trust on 80 acres of said land that secured a $ 1000 note; (6) that Ervin W. Campbell would pay off the said $ 1000, when due, and protect the security of the other indebtedness; and "that the payments herein recited shall be a full...