Clark v. Sires

• Court: Missouri Supreme Court
• Writing for the Court: BRACE, P. J.
• Citation: Clark v. Sires, 193 Mo. 502, 92 S.W. 224 (Mo. 1906)
• Decision Date: 22 February 1906
• Parties: CLARK et al. v. SIRES, Appellant

92 S.W. 224

193 Mo. 502

CLARK et al. v. SIRES, Appellant

Supreme Court of Missouri, Division One

February 22, 1906

Appeal from Grundy Circuit Court. -- Hon. J. W. Alexander, Judge.

Affirmed.

Harber & Knight and Peery & Lyons for appellant.

(1) The contingent remainder vested in the parties to the partition suit was a sufficient interest to authorize the court to make partition. Those persons who constituted the presumptive heirs of Cynthia Clark, or their grantee, were before the court, and they represented all who might afterwards become entitled to the estate. Reinders v. Koppleman, 68 Mo. 482; Sikeman v. Galvin, 124 Mo. 367; Sparks v. Clay, 185 Mo. 393. The plaintiff in the partition suit, though the owner of the life estate, was also part owner in the remainder, and was therefore entitled to maintain partition against the other remaindermen. Atkinson v. Brady, 114 Mo. 200; Hayes v McReynolds, 144 Mo. 348. (2) The order of publication was regular and sufficient and the judgment rendered thereon was as valid as if made on personal service. Tooker v Leake, 146 Mo. 419. And if there were irregularities or informalities in the notice by publication, the judgment would not thereby be open to collateral attack. Adams v Cowles, 95 Mo. 501; Schmidt v. Neimeyer, 100 Mo. 207; Charley v. Kelley, 120 Mo. 134; Cruzen v. Stephens, 123 Mo. 134; Winningham v. Trueblood, 149 Mo. 572. (3) The judgment found entered on the records of the court is conclusively presumed to be the judgment of the court. Parol evidence is not admissible to overthrow it. If interlineations appear in it they are presumed to have been directed by the court. Adams v. Betz, 1 Watts (Pa.) 425; Belkin v. Rhodes, 76 Mo. 643; Railroad v. Holschloz, 144 Mo. 253; 1 Black on Judg. (2 Ed.), sec. 124. (4) Even though judgment should be held void as to the defendant Mildred Allen, because it is shown her true name was Mildred Lieuallen, still this would not affect its validity and binding force as to the other parties to the action. Brawley v. Ranney, 67 Mo. 280; Cochran v. Thomas, 131 Mo. 258; Stevenson v. Black, 168 Mo. 549. The court had a perfect right to direct the correction of any omission or mistake in the entry of the judgment. And such correction could be made by interlineation without impairing the judgment or rendering it void. Allen v. Sales, 56 Mo. 28; Stevenson v. Block, 168 Mo. 561. (5) The judgment in the partition suit and the sale thereunder cannot be attacked collaterally. 1 Black on Judg. (2 Ed.), secs. 245, 246, 252, 261, 262; Akers v. Hobbs, 105 Mo. 127; Hope v. Blair, 105 Mo. 93; Lewis v. Morrow, 89 Mo. 174; Hamer v. Cook, 118 Mo. 476; McKenzie v. Donnell, 151 Mo. 450. (6) The final order made in the partition case is sufficient to show an approval or confirmation of the sale. 17 Am. and Eng. Ency. Law (2 Ed.) 992; 1 Black on Judg. (2 Ed.), sec. 123. Without an order of confirmation the sheriff and purchaser take on themselves the risk of determining that the case is one in which such an order would be fit and proper, if the case be really such, then the order will be presumed to have been made and its actual entry of record is unnecessary. Brown v. Cable, 76 N.C. 391; Fleming v. Roberts, 84 N.C. 532. (7) The approval of the sale need not necessarily appear by formal entry. It is sufficient if the approval can be gathered from the whole record. Jones v. Manley, 58 Mo. 564; Henry v. McKerle, 78 Mo. 430; Grayson v. Weddle, 63 Mo. 523; Carey v. West, 139 Mo. 179; Long v. Joplin M. & S. Co., 68 Mo. 422; Gilbert v. Cooksey, 69 Mo. 42; Moore v. Davis, 85 Mo. 464; State to use v. Jones, 89 Mo. 470; Noland v. Barrett, 122 Mo. 190. (8) The sheriff's sale and deed thereunder cannot be collaterally attacked for the want of a confirmation of the sale, for any irregularity which does not affect the jurisdiction of the court. Evans v. Robberson, 92 Mo. 192; Matney v. Graham, 50 Mo. 559; Lewis v. Morrow, 89 Mo. 174; Homer v. Cook, 118 Mo. 476; Miller v. McMannis, 104 Ill. 421; Reed v. Austin, 9 Mo. 722; 17 Am. and Eng. Ency. Law (2 Ed.), 1033; Price v. Real Est. Assn., 101 Mo. 107. (9) Every presumption is to be indulged in favor of the validity of the judgment and sale thereunder. Especially is this true where such a length of time has elapsed as in this case. Davis v. Green, 102 Mo. 170; McClanahan v. West, 100 Mo. 309; Williams v. Mitchell, 112 Mo. 300; Brown v. Oldham, 123 Mo. 631; 1 Black on Judg. (2 Ed.), sec. 270; Homer v. Cook, 118 Mo. 476; Thomas v. Malcom, 39 Ga. 328; Childs v. McChesney, 20 Ia. 431; Osborn v. Weldon, 146 Mo. 185; Price v. Springfield R. E. Co., 101 Mo. 107; Bray v. Adams, 114 Mo. 486; Adams v. Cowles, 95 Mo. 501.

Platt Hubbell and George Hubbell for respondent.

(1) In the trial court appellant agreed that Tabor's attorney had, with a lead pencil, changed the order of sale. Appellant there made no objection to this agreement being considered as evidence -- in fact, made the agreement as a part of the evidence in the case. Defendant cannot change front here. He is bound by his trial court theory. Bray v. Seligman, 75 Mo. 40; Casler v. Chase, 160 Mo. 425; State v. O'Neill, 151 Mo. 81. (2) The Austin-Clark deed conveyed a life estate to Cynthia Clark, remainder in fee to the heirs of her body. Under this deed plaintiffs are entitled to eight-tenths of the land in controversy. Phillips v. LaForce, 89 Mo. 72; Tesson v. Newman, 62 Mo. 198; Frame v. Humphreys, 164 Mo. 346; Utter v. Sidman, 170 Mo. 284; Christ v. Kuehne, 172 Mo. 118. (3) The children and heirs of Cynthia Clark had no remedy but this one. Revised Statutes 1899, section 806, allowing appeals from interlocutory judgments, was not in force when this partition proceeding was had. Revised Statutes 1899, sec. 650, is of recent enactment. "Appeals can only be taken from a final judgment either under the general practice act, or the statute regulating procedure in cases of partition. In a partition suit the order of sale is is not a final judgment from which an appeal will lie." McMurtry v. Glascock, 20 Mo. 432; Holloway v. Holloway, 97 Mo. 639; Murray v. Yates, 73 Mo. 13. "The order of sale is not a final judgment, from which an appeal will lie. It is the order of approval and distribution which constitutes the final judgment." Turpin v. Turpin, 88 Mo. 340; Goode v. Lewis, 118 Mo. 361. It follows from the foregoing that the children and heirs of Cynthia Clark had no remedy by appeal, with respect to the partition proceeding. Since the sheriff's deed is void for the reason that there was no report of sale and no approval thereof, ejectment is the proper remedy. McClanahan v. West, 100 Mo. 323; Baldwin v. Dalton, 168 Mo. 30. The quit-claim deeds executed by Ellen Warmoth and James G. Clark (the only remaindermen whose interests, in this proceeding, involve quit-claim deeds) conveyed no title for the reason that these remaindermen died before the life tenant. Godman v. Simmons, 113 Mo. 132; Emmerson v. Hughes, 110 Mo. 631; Butler v. Fitzgerald, 27 L.R.A. 255. (4) This partition proceeding violates both the spirit and the letter of the foregoing rule. Its purpose is, not to relieve Willian B. Tabor of any of the inconveniences of a joint tenancy, but, to secure the fee simple title to this 160 acres of land for nothing and by a trick. This purpose will fail for the reason that the proceeding was conducted in such a way that the sheriff's partition deed is void. Sale by sheriff and sheriff's deed void because no report of sale and no confirmation thereof. Sparks v. Clay, 185 Mo. 407; Pomeroy v. Allen, 60 Mo. 530; Wauchoupe v. McCormick, 158 Mo. 667; Burden v. Taylor, 124 Mo. 12; G. S. 1865, p. 615; Bone v. Tyrrell, 113 Mo. 186; Valle v. Fleming, 19 Mo. 463; Rorer on Jud. Sales, secs. 12, 336, 459; Stephens v. Ells, 65 Mo. 460; 21 Am. and Eng. Ency. Law (2 Ed.), 1162, 1205; 17 Am. and Eng. Ency. Law (2 Ed.), 989; Vanfleet, Collateral Attack sec. 14; Campe v. Sancier, 24 Am. St. Rep. 274; Hutchinson v. Shelly, 133 Mo. 412. Sale void because no notice of application for the order of sale that was made. Janney v. Spedden, 38 Mo. 402; Holland v. Johnson, 55 Mo. 50; Bobb v. Woodward, 42 Mo. 489; Roberts v. Co., 126 Mo. 469; G. S. 1865, p. 681, sec. 12. Sale void because no order of sale upon which to base the sale that was made. Hughes v. Hughes, 72 Mo. 138; Burnham v. Hitt, 143 Mo. 421; Evans v. Snyder, 64 Mo. 518; Stoffel v. Reiners, 3 Mo.App. 39; Freeman on Void Judicial Sales (4 Ed), sec. 36.

OPINION

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 northwest quarter of the southwest quarter of section thirteen, township sixty-two, range twenty-five, in Grundy county; and the second is under section 650, Revised Statutes 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 22nd 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...