Clark v. Sires

• Decision Date: 22 February 1906
• Citation: 92 S.W. 224,193 Mo. 502
• Parties: CLARK et al. v. SIRES.
• Court: Missouri Supreme Court

92 S.W. 224

193 Mo. 502

CLARK et al. v. SIRES.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

1. DEEDS—TITLE ACQUIRED BY GRANTEE.

Land was conveyed to a grantee for life with remainder to the heirs of her body. She and three children conveyed their interest to a third person. One of the children died childless during the lifetime of the grantee. Another child, who died before the grantee leaving heirs, conveyed his interest as heir of his father who died before the grantee. Held, that the third person only acquired the grantee's life estate, and the interest of the two children who survived her.

2. PARTITION — SALE — CONFIRMATION — NECESSITY.

A sale in partition was made in pursuance of the order of sale as altered by the attorney of plaintiff therein. The sheriff's deed was made before the sale was reported to the court. The record did not show that the sheriff's report was approved or that the sale was confirmed. Gen. St. 1865, c. 152, relating to partition was in force at the time the proceedings were had. Held, that the deed passed no title.

3. SAME—RECORD SHOWING CONFIRMATION OF SALE—NECESSITY.

The record in partition proceedings had while Gen. St. 1865, c. 152, relating to partition was in force, should show the confirmation of the sale, that being the final judgment from which alone an appeal could be taken, and which when once rendered imported absolute verity, except for fraud or want of jurisdiction.

4. SAME—SUFFICIENCY OF RECORD.

A record in partition proceedings, which recited that the sheriff filed his final report in the cause, and that the cause was settled, did not show that the sheriff's sale was confirmed by the court.

Appeal from Circuit Court, Grundy County; J. W. Alexander, Judge.

Action by W. A. Clark and others against Columbus Sires. From a judgment for plaintiffs, defendant appeals. Affirmed.

Harber & Knight and Peery & Lyons, for appellant. Platt Hubbell and George Hubbell, for respondents.

BRACE, P. J.

The petition in this case is in two counts. The first is in the ordinary form in ejectment to recover the possession of the N. W. ¼ of the S. W. ¼ of section 13, township 62, range 25 in Grundy county; and the second is under section 650, Rev. St. 1899, to quiet the title to the same. The answer was a general denial, and a plea of the statute of limitations. The case was tried before the court without a jury. The judgment was for the plaintiffs for eight-tenths of the land sued for, and a decree quieting the title to the same; and the defendant appeals.

James Austin is the common source of title. By his deed, dated the 10th day of November, 1851, the title to the real estate in question, together with other lands, was vested in Cynthia Clark, wife of Orverly S. Clark, for life, remainder in fee simple to the heirs of her body. Her husband died in August, 1859, and she died on the 22d of September, 1902, and this suit was instituted on the 15th of January, 1903. Thirteen children were born to the said Cynthia, of whom six died before their mother. Three, Missouri Ann, Elizabeth, and Joseph H., childless; and three, Ellen, Nicholas S., and James G., each leaving children who survived their grandmother. The other seven children who survived their mother were John G., Orverly S., William A., Mildred J., Julia, Nancy J., and Casander. After the death of Cynthia Clark, and before the commencement of this suit, the said William A., by deed, acquired the title of the said John G., Mildred J., and Julia in the premises; and he, the said Orverly S., the children of the said James G., the children of the said Nicholas S., and the children of the said Ellen; deceased as aforesaid; are the plaintiffs herein, and as remaindermen are entitled to an undivided eight-tenths of the premises, unless their title has been divested.

By deed dated the 7th day of April, 1865, the said Cynthia Clark and two of her children, the said Nancy J. and Ellen, conveyed their title in the premises to one William B. Tabor. By deed, dated July 26, 1867, the said James G. conveyed all his title as heir of Orverly Clark's estate in the premises to the said Tabor. By deed, dated June 6, 1868, the said Casander conveyed her title to the premises to the said Tabor, and thereafter the sheriff of Grundy county conveyed the premises to the said Tabor by the following deed duly acknowledged, to wit: "To all to whom these presents shall come, I, Nathan A. Winters, as the sheriff of Grundy county in the state of Missouri send greeting: Whereas, in the case of William B. Tabor, plaintiff, against John Clark, William Clark, Nicholas Clark and Mildred Allen, ____ Allen, her husband, Julia A. Clark, Orville S. Clark, defendants, it is ordered by the circuit court of Grundy county aforesaid at the March term thereof, A. D. 1870, that the following lands in said county, to wit: The west half of the southwest quarter of section No. thirteen (13) and the east half of the southeast quarter of section No. fourteen (14) in township No. sixty-two of range No. twenty-five (25) subject to the life estate of Cynthia C. Clark be sold for petition and division among plaintiff and defendants for cash in hand; and, whereas, in pursuance of said order of sale, I, as the sheriff of said county, caused a notice that said lands would be offered for sale at public vendue at the courthouse door of said county on the 5th day of September, A. D. 1870, between the hours of 9 o'clock a. m. and 5 o'clock p. m. of that day, and during the sitting of said court for cash in hand to be published in the [Grand River Republican] a weekly newspaper printed and published in said county, for at least twenty days prior to said day of sale; and, whereas, at the time and place and on the terms last aforesaid, I, as sheriff, as aforesaid, having previously ascertained that said lands altogether constituted one farm, and could be more advantageously sold in a body than it could be in separate lots, tracts, or subdivisions, offered said lands for sale in one body at public auction, and William B. Tabor being the highest and best bidder for the whole of said land subject to the life estate of the said Cynthia Clark, at and for the price and sum of $100.00, the same was stricken off, and sold to him for that sum; and, whereas, the said William B. Tabor did fully comply with the terms of said sale, and did pay to me as sheriff as aforesaid the sum of $100. Now, therefore, in consideration of the premises, I, said Nathan A. Winters, as sheriff aforesaid, do hereby sell, transfer, and convey the real estate aforesaid subject to the life estate aforesaid, to him, the said Wm. B. Tabor, his heirs and assigns, forever. In witness whereof, I have subscribed my name and affixed my seal as sheriff, as aforesaid, this 8th day of September, A. D. 1870. N. A. Winters, Sheriff. [Seal.]" Afterwards, by mesne conveyances the defendant acquired all the right, title, and interest of the said Tabor to the premises, and claims that by virtue of the conveyances aforesaid the title of all the remaindermen had been vested in him.

1. As in partition no additional estate is conferred upon the partitioners (Whitsett v. Wamack, 159 Mo. 14, 59 S. W. 961, 81 Am. St. Rep. 339; Harrison v. McReynolds, 183 Mo. 539, 82 S. W. 120; Sharp v. Stewart, 185 Mo. 518, 84 S. W. 963) the first question to be determined is, what interest in the premises did Tabor acquire by the deeds aforesaid other than that of the sheriff? By the deed of Cynthia and her two children, Nancy J. and Ellen, he acquired the life estate of the said Cynthia, and the said Nancy J. having survived her mother, he also acquired her remainder, or an undivided one-tenth interest in the premises in fee simple. But as the said Ellen did not survive her mother that was all the interest he acquired in the remainder by that deed, and as the said James G. did not survive his mother, he acquired no interest in the remainder by that deed even if it had contained apt words conveying his interest in the remainder, which it did not, and as the said Casander also survived her mother, by her deed, he acquired her interest in the remainder or another undivided tenth interest in fee simple in the premises, and these two-tenths was all the interest he acquired in the fee simple remainder by the foregoing deeds. Emmerson v. Hughes, 110 Mo. 627, 19 S. W. 979; Godman v. Simmons, 113 Mo. 122, 20 S. W. 972. This brings us to the main question in the case.

2. What interest, if any, did he acquire by the sheriff's deed aforesaid conveying the premises, with other lands to the said Tabor. This question must be determined upon the record of the court in the partition proceeding in which it was made, the whole of which was offered in evidence to impeach it, by which it appears that on the 11th of June, 1869, a suit in partition was instituted in the Grundy county circuit court by petition, as follows: "William B. Tabor, Plaintiff, v. John Clark, Nicholas Clark, Mildred Allen, ____ Allen, Her Husband, Julia A. Clark, Orville S. Clark, and William Clark, Defendants. Plaintiff states: That plaintiff and defendants are the owners and hold in joint tenancy the remainder after the expiration of the estate during the natural life of Cynthia C. Clark of the following lands in Grundy county, Missouri, to wit: The west half of the southwest quarter of section No. thirteen (13); the east half of the southeast quarter of section No. fourteen (14) in township No. sixty-two (62) of range No. twenty-five (25). That the rights of all persons in said real estate are as follows, to wit: The plaintiff is entitled to four-tenths of said real estate and that defendants John Clark, Nicholas Clark, ...