Chrisman v. Divinia
| Decision Date | 17 July 1897 |
| Parties | Chrisman et al., Appellants, v. Divinia |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. William S. Herndon Judge.
Reversed and remanded.
S. H Corn for appellants.
(1) The proceedings begun by Messrs. Althouse & Trice in the circuit court, March 15, 1884, deprived the plaintiffs of none of their rights to the land, and conferred no right or title either legal or equitable, upon the defendant. They were void from beginning to end. The circuit court acquired no jurisdiction over the plaintiffs in this case by virtue of those proceedings, nor power to sell their lands. They were all infants; an infant can not voluntarily come into court except through its guardian. If it have none, one must be appointed upon proper application before the suit can be commenced. R. S. 1889, secs. 7138, 1997, 1999, 2000, 7139, 7140; Thornton v. Thornton, 27 Mo. 302; Mitchell v. Jones, 50 Mo. 438; Clark v. Crosswhite, 28 Mo.App. 34; Gamache v. Prevost, 71 Mo. 84. (2) The circuit court had no jurisdiction over the subject-matter of that suit. It is manifest that the object and purpose of the proceedings were not for the partition of the lands, but for the sale of the lands for the purposes of the administration of the estate. R. S. 1889, sec. 3397; Pearce v. Calhoun, 59 Mo. 271; Eoff v. Thompkins, 66 Mo. 225; Ferguson v. Carson, 9 Mo.App. 497; Titterington v. Hooker, 58 Mo. 593. (3) Where it appears from the whole record that the court did not have jurisdiction either of the person or the subject-matter, the judgment is void, and is so treated in collateral proceedings. Brown v. Woody, 64 Mo. 547; Howard v. Thornton, 50 Mo. 291; Milner v. Shipley, 94 Mo. 106; Cloud v. Inhabitants, 86 Mo. 357; Hope v. Blair, 105 Mo. 85. (4) The purchaser is without title and redress. There is no resulting equity in favor of third persons; and no power in the legislature or other department of government can vest such judgment with any of the elements of vitality or power. Freeman on Judgments [3 Ed.], sec. 117; Freeman on Void Judicial Sales, sec. 56; Black on Judgments; Price v. Estill, 87 Mo. 385; Same v. Courtney, 87 Mo. 387; Norton v. Highleyman, 88 Mo. 622. (5) If, however, this court holds that in those proceedings the circuit court acquired jurisdiction not only over the persons of plaintiffs but their lands as well, then I insist that the defendant acquired no legal title to the land because of the following irregularities: First. There was no order for the sale of the land. Sale did not take place under the original order. Re-recording that order at a subsequent term of court was not a renewal of the order. Such sale is void. Hughes v. Hughes, 72 Mo. 136; Carson v. Hughes, 90 Mo. 173. Second. The order of sale must direct whether the land is to be sold during a session of the circuit or of the county court. R. S. 1889, sec. 7189. This order does not so direct. Third. There was no order of court confirming the sale. The order made did not describe the land in controversy. Such order is the final judgment in partition suits. Fourth. The "decree and order of sale" was not a judgment in partition but simply an order of sale to pay the debts of the estate. It simply took the lands out of the custody of the probate court, sold them and restored the proceeds.
Thomas E. Turney, William Henry and A. J. Althouse for respondent.
(1) If the court in the partition proceedings had jurisdiction of the subject-matter and the parties, its judgment or decree, even if erroneous or irregular, was not void, but voidable only. Brackett v. Brackett, 53 Mo. 265; Gray v. Bowles, 74 Mo. 419; Hamer v. Cook, 118 Mo. 476-490. (2) A voidable judgment or decree can not be attacked in a collateral proceeding, although made in a suit by or against infants; and an ejectment suit is such a proceeding. Freeman on Judgments [3 Ed.], sec. 151; Gray v. Bowles, 74 Mo. 419; Lewis v. Morrow, 89 Mo. 174; Karnes v. Alexander, 92 Mo. 671; Charley v. Kelley, 120 Mo. 143. (3) The court had jurisdiction of the subject-matter of the suit; and the fact that the land descended, and that the estate of the ancestor had not been settled; and the further fact that the land, or part of it, would be required to pay the debts of the estate, did not deprive it of jurisdiction to make partition and order a sale of the land. R. S. 1879, sec. 3350; Tuppery v. Hertung, 46 Mo. 135; Rhorer v. Brockhage, 15 Mo.App. 16. (4) The court had jurisdiction of the parties. R. S. 1879, secs. 3339, 3346, 3347; Thornton v. Thornton, 27 Mo. 302; Waugh v. Blumenthal, 28 Mo. 462. (5) The appointment of the defendant in the suit guardian of the infant plaintiffs, was not illegal nor even improper. The allegations of the petition and the answer show that their interests were not hostile or inconsistent. Walters v. Hermann, 99 Mo. 529. (6) Whether the administrator was an unnecessary party, is of no consequence in determining the question here. If he was not a necessary party, the suit was, to all intents and purposes, an ex parte proceeding for partition by the plaintiffs. That such a suit can be prosecuted by infant plaintiffs in this state is well settled. R. S. 1879, secs. 3339, 3342 and 3350; Larned v. Renshaw, 37 Mo. 458; Harbison v. Sanford, 90 Mo. 477. (7) The commissioner's report, which states all the facts, was approved, and the sales confirmed. This being the final decree, all previous interlocutory questions were disposed of by it. Longfellow v. Longfellow, 7 N. Y. Ch. 138; Hughes v. McDivitt, 102 Mo. 7. (8) But if the only objection to the judgment or decree is that the plaintiffs appeared by attorney, and were at no time represented by a guardian, it is expressly validated by the statute. R. S. 1879, sec. 3582; R. S. 1889, sec. 2113; Brandon v. Carter, 119 Mo. 572; Robinson v. Hood, 67 Mo. 660; Holton v. Towner, 81 Mo. 360.
The action at the outset was in ejectment. The plaintiffs are the heirs (grandchildren) of Mr. Patterson Chrisman, who died in 1883, owning certain land in Clinton county. That land is the subject of this suit. Plaintiffs are entitled to it unless their title has been divested by certain court proceedings in 1884-5. The validity of those proceedings forms the leading question presented for decision. Those proceedings were set up in the answer as a defense, accompanied with an affirmative demand for an accounting, and for a repayment of funds (invested by defendant in the land on various accounts) in event the court should find the legal title to the land to be in plaintiffs.
The new matter of the answer was denied by a reply, and a trial of the issues ensued.
The learned circuit judge found in favor of plaintiffs as to the legal title; but, on taking an account, he charged plaintiffs with considerable sums of money on the theory advanced in the affirmative portion of the answer. Both parties appealed from the judgment that followed those findings.
In the view we entertain of the law of the case, it will not be needful to give any fuller sketch of the pleadings. The result here depends on the validity of the sale in a partition suit, which forms the gist of the controversy.
Defendant's title was acquired at the sale in the progress of that suit. Plaintiffs insist that the sale is void. The facts leading up to the sale are these:
When Mr. Chrisman died, in 1883, his grandchildren (now plaintiffs) were aged respectively eleven, eight and four years. Mr. Turney was duly appointed administrator of his estate and took possession of the land by order of the probate court. He was in possession (by a tenant) and was receiving the rents at the time of the sale in question.
In March, 1884, a petition was filed in the circuit court of Clinton county by Althouse and Trice (a firm of attorneys at law then doing business there) as attorneys for these plaintiffs and their brother (who has since died) against Mr. Turney, as administrator of the estate, praying for a partition of all the lands of which Patterson Chrisman died seized (describing them). That petition alleges that all the parties named therein as plaintiffs were minors, without a guardian; that the administration had not been closed; that the lands were not susceptible of partition on account of the "nature and amount of the owners," and it asks for "the appointment of a guardian for them and for an order of sale in partition of said real estate without the appointment or intervention of commissioners," etc. No summons was issued; but at the first term of the court after the filing of the petition, the administrator made answer, admitting all the allegations; alleging that the personal estate was insufficient to pay the debts of the estate; joining in the prayer for a sale of the lands, and asking that he might be appointed commissioner to make the sale, and then be authorized as administrator to pay the debts of the estate out of the proceeds, and to distribute the surplus among the plaintiffs in the case.
On the twenty-third of April (thirty-eight days after the finding of the petition) an order was entered in the cause purporting to appoint Mr. Turney (the defendant and administrator) as guardian of the plaintiffs. It was then recited that as such defendant and guardian he consented to the trial of the cause at that term of court. A decree follows which proceeds to find the facts as stated in the petition...
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