Carter v. Carter

• Decision Date: 29 November 1911
• Citation: 141 S.W. 873,237 Mo. 624
• Parties: GEORGE G. CARTER, by HARRIET E. CARTER, his Curatrix, Plaintiff, Appellant, v. S. E. CARTER et al., Defendants, Appellants
• Court: Missouri Supreme Court

141 S.W. 873

237 Mo. 624

GEORGE G. CARTER, by HARRIET E. CARTER, his Curatrix, Plaintiff, Appellant, v. S. E. CARTER et al., Defendants, Appellants

Supreme Court of Missouri, First Division

November 29, 1911

Appeal from Jasper Circuit Court. -- Hon. Henry L. Bright, Judge.

Affirmed as to defendants Byrd and W. G. Carter; reversed as to defendants Kyger and S. E. Carter.

Waltour M. Robinson and Thomas & Hackney for plaintiff.

(1) The deed from the curatrix of the plaintiff to his interest in the real estate described in the petition, dated February 12 1906, offered in evidence by the defendant was and is void for the reason that the order of sale was made by the probate court in vacation. Probate courts in this State are courts of record. R. S. 1909, sec. 4055; R. S. 1909, sec. 3870. The court could adjourn to a date certain only by order made pursuant to the statute. Stovall v. Emerson, 20 Mo.App. 322; Holman v. Hogg, 83 Mo.App. 370. And certainly the same rule would require that if it could be convened in special term only pursuant to the statute, the adjournment on January 8, 1906, to the next regular term concludes all further action of the court at that term. State ex rel. v. Ross, 118 Mo. 47; Ashby v Glasgow, 7 Mo. 320; Hill v. St. Louis, 20 Mo 584; Harbor v. Railroad, 32 Mo. 423; Van Dyke v. State, 22 Ala. 57. The judge of the probate court has no power to hold a court for the hearing of a particular case at any other time or place than those fixed by law, and any decree passed in such case is void. White v. Riggs, 27 Me. 114; 8 Am. and Eng. Ency. Law (2 Ed.), p. 34. (2) The court committed no error in holding that the mining lease described in the judgment of the court from A. G. Carter to defendant S. E. Carter had been forfeited prior to the commencement of this action for failure to pay the royalties. If the lease from A. G. Carter had not been terminated, why was the defendant S. E. Carter procuring or attempting to procure a lease from the minor plaintiff? The fact that the lease attempted to be procured from the plaintiff through the probate court was void for want of power in the court to authorize the plaintiff's curatrix to execute the same, does not detract from the necessary conclusion that he, at the time he was so attempting to do, knew that the former lease had been forfeited. Defendants cannot complain because the sub-lessees, if any, carrying on mining operations on a part of the land were not made parties defendant. Such parties are not affected in any wise by the decree. A party in possession anterior to the commencement of a suit in which he is not a party cannot be dispossessed under a judgment rendered therein. Garrison v. Savignac, 25 Mo. 47; Goerges v. Huffschmidt, 44 Mo. 179; State ex rel. v. Harrington, 41 Mo.App. 439; Oakes v. Aldridge, 46 Mo.App. 11; Richards v. Smith, 47 Mo.App. 619. (3) The unassigned dower of Harriet E. Carter, mother of the plaintiff, and widow of A. C. Carter, deceased, is no bar to the plaintiff's action. Sell v. McAnaw, 138 Mo. 267. McClurg v. Turner, 74 Mo. 45; Weaver v. Crenshaw, 6 Ala. 873; 10 Am. and Eng. Ency. Law (2 Ed.), 515; Barnett v. Meacham, 67 Ark. 313; Carnell v. Wilson, 21 Ark. 62; McCammon v. Railroad, 66 Mich. 442; King v. Merritt, 67 Mich. 194; Howe v. McGivern, 25 Wis. 532. (4) The defendants, S. E. Carter, W. T. Carter and S. Kyger, having answered jointly and their answer being a general denial, and the evidence conclusively showing that S. E. Carter and W. T. Carter were in possession of the premises sued for, at the institution of the suit, no error was committed by the trial court in finding the issues in favor of the plaintiff as to these defendants. It is clear that if the defendants united in a general denial they are liable to a joint verdict. Sedgwick and Wait on Trial of Title to Land (2 Ed.), sec. 238; Patterson v. Ely, 19 Cal. 28; Jones v. Hartley, 3 Whart. (Penn.) 191. The general rule is that a defendant by interposing the general issue admits himself to be in possession of the whole of the land claimed in the writ or declaration, and that if he desires to dispute or controvert the question of possession the proper method to accomplish that result is by special plea in order to avoid this admission of possession. Sedgwick and Wait on Trial of Title to Land, sec. 479; Ulsh v. Strode, 13 Pa. St. 433; Hill v. Hill, 43 Pa. St. 521; Holman v. Elliott, 86 Ind. 231; Callan v. McDaniel, 72 Ala. 102; Graves v. Amoskeag Co., 44 N.H. 463; Bernard v. Elder, 50 Miss. 336; Cumming v. Butler, 6 Ga. 88; Stevens v. Griffith, 3 Vt. 48. Besides if there was a misjoinder of parties defendant, the defect, if any, should have been taken advantage of by demurrer, if it appeared on the face of the petition; and if not so appearing it should have been taken advantage of by answer. Russell v. De France, 39 Mo. 506; Hicks v. Jackson, 85 Mo. 283; Thompson v. Railroad, 80 Mo. 521; 7 Am. and Eng. Ency. P. and P., p. 315; Fosgate v. Herkimer Co., 12 N.Y. 580; Dillaye v. Wilson, 43 Barb. (N.Y.) 261; Ames v. Harper, 48 Barb. (N.Y.) 56; Camden v. Haskell, 3 Rand. (Va.) 462; Cunningham v. Bradley, 26 Ga. 238. In no event under the facts of the record in this case would a failure to show one of the said defendants was in possession at the institution of this suit, as no judgment was rendered against either W. T. Carter or S. Kyger, not even a judgment against them for costs, necessitate a reversal. Reversible error is described in written law as error materially affecting the merits of the action. R. S. 1899, sec. 693; Mann v. Doerr, 222 Mo. 15. The appellate court may strike out the name of a defendant or may affirm a judgment as to one or more of defendants and reverse it as to others. State ex rel. v. Tate, 109 Mo. 265; Bensieck v. Cook, 110 Mo. 183; Cruchon v. Brown, 57 Mo. 38; Evans v. Kounze, 128 Mo. 670; Neenan v. St. Joseph, 126 Mo. 89; Stotler v. Railroad, 200 Mo. 150; Hunt v. Railroad, 89 Mo. 607.

George Hubbert and Frank L. Dorlaw for defendants.

(1) The guardian's deed from Harriett Carter to Chas. A. Byrd is on its face one warranted by law, and carries its own evidence of authenticity and efficiency, prima facie, under the statute; and the burden is upon him who challenges its force, for any reason, to make good the challenge, by assuming and discharging the full burden of proof in that regard, which respondent has not done. R. S. 1899, sec. 3508; Bray v. Adams, 114 Mo. 486; Exendine v Morris, 76 Mo. 416. (2) The Jasper county probate court was duly organized as a de facto court, constituted of all necessary elements, sitting in the discharge of its judicial powers; and the integrity of its record and competency of its jurisdiction to uphold the guardian's deed, may not be assailed, in this collateral way, upon such unsubstantial grounds as were put forward in the circuit court. Const. Mo., art. 6, sec. 35; R. S. 1899, secs. 1752, 1756, 1757, 1785, 1786, 1604, 1606, 1609; In re Stevenson, 125 F. 843; United States v. The Little Charles, 26 F. Cas. No. 15, 613; State ex rel. v. Nash, 83 Mo.App. 512; Cook v. Renick, 19 Ill. 600; Cook v. Skelton, 20 Ill. 107; Spring v. Kane, 86 Ill. 586; Dukes v. Rowley, 24 Ill. 221; State v. Bush, 136 Mo.App. 614; People v. Young, 151 N.Y. 210; Mattingly v. Darwin, 23 Ill. 618; Grant v. State, 62 Ala. 233; Ex parte Bond, 96 S.W. 1081; Goll v. United States, 151 F. 412; Cribb v. State, 45 S. E. (Ga.) 396; Buchanan v. State, 45 S. E. (Ga.) 607; Ex parte Neil, 43 So. 615; Johnson v. Beazley, 65 Mo. 250; State ex rel. v. Nolan, 99 Mo. 577; Stockslayer v. United States, 116 F. 590; Overton v. Johnson, 17 Mo. 451; Hicks v. Ellis, 65 Mo. 184; Cole County v. Dallmeyer, 101 Mo. 65; State ex rel. v. Mitchell, 127 Mo.App. 460; Cook v. Penrod, 111 Mo.App. 128; Mobley v. Nave, 67 Mo. 546; Duval's Heirs v. McLoskey, 1 Ala. 708; Weaver v. Cooledge, 15 Ia. 24; Harmon v. Copenhauer, 89 Va. 836; State v. Shanley, 38 W.Va. 516; State v. Tedford, 6 Ired. (N. C.) 5; Green v. Morse, 57 Neb. 391; Clough v. State, 7 Neb. 320; Bowen v. Stewart, 128 Ind. 507; Wharton v. Sims, 88 Ga. 617. (2) The responding plaintiff here is foreclosed and estopped against attack upon the judicial orders of the probate court that were invited by his guardian and resulted in the guardian's deed. Smurr v. State, 123 Ind. 125; 21 Ency. Pl. and Pr. 611, note 1; Thompson v. Maxwell, 168 U.S. 451; Wilson v. Schafer, 107 Tenn. 300. (3) The lower right of A. G. Carter's widow to one-third of his interest for life, in the land and in the opened mines thereon, vested, by virtue of her deed, in defendant Byrd. And that estate or its issue is allotable to him, by admeasurement, or by equitable distribution of royalties, if that method be found necessary. But this was overlooked and practically denied below, though a clear right. R. S. 1899, sec. 2934; Phillips v. Pressen, 172 Mo. 27; Rice v. McFarland, 34 Mo.App. 404; Miller v. Talleu, 48 Mo. 503. (4) The judgment should not stand, as against the Davis leasehold, without its owners being parties to this cause. Spurlock v. Burnett, 170 Mo. 372; Phillips v. Hardenberg, 181 Mo. 463. (5) The adjudged forfeiture of the A. G. Carter lease is not supported by the pleadings; nor is there any evidence of the determination of the leasehold for any cause; nor of any attempt to enter for breach of conditions before suit brought. 2 Fay, Landl. and Ten. (9 Ed.), secs. 495 and 497. (6) Whether or not the court below was endowed with power to administer equities in behalf of plaintiff without pleading therefor, it could have done no less than require the restoration, as it did, of the purchase money to Bird by the guardian. Patillo v. Martin, 107 Mo.App. 653; Mably v. Nave, 67 Mo. 546; Shroyer v. Nickoll, 55 Mo. 264; 18 Ency. Pl. and Prac. 858-60; 16...