Cochran v. Thomas

• Decision Date: 26 November 1895
• Parties: Cochran et al., Appellants, v. Thomas et al
• Court: Missouri Supreme Court

33 S.W. 6

131 Mo. 258

Cochran et al., Appellants, v. Thomas et al

Supreme Court of Missouri, First Division

November 26, 1895

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

L. A Laughlin for appellants.

(1) The conclusion of law in the judgment was erroneous because of its generality. Elliott's Gen. Proc., sec. 969; Shipp v. Snyder, 121 Mo. 155. (2) The court erred in refusing to find as a material fact whether the appearance of the plaintiffs in this suit by attorneys in the partition suit was authorized. First. If the special finding did not cover all the issues in the case, or all the material facts involved in any of the issues, the remedy is by a motion for a new trial. Graham v. State, 66 Ind. 386; Wilson v. Hamilton, 75 Ind. 71; Railroad v Hart, 119 Ind. 273; Railroad v. Buck, 116 Ind 566; Bank v. Bolen, 121 Ind. 301. Second. Under our code, where an equitable defense may be interposed to a legal action in an action on a judgment of a sister state, the fraudulent appearance of the attorney may be shown as a defense. Marx v. Fore, 51 Mo. 69; Eager v. Stover, 59 Mo. 87; Napton v. Leaton, 71 Mo. 358. Third. And the same is true of a domestic judgment where an action is brought to enforce it. Ward v. Quinlivin, 57 Mo. 425; Napton v. Leaton, 71 Mo. 358; Verplanck v. VanBuren, 76 N.Y. 247; Keeler v. Keeler, 102 N.Y. 30; Freeman on Judgments [4 Ed.], sec. 576; Pomeroy's Equity Juris., sec. 85. (3) George Lester Cochran being a minor at the time of the partition proceedings could not appear by attorney, and hence the proceedings are void as to him, at his election. The law in force at the time of the partition is found in sections 47, 50, chapter 152, General Statutes, 1865, which are almost the same as sections 7139, 7141 of Revised Statutes, 1889. Colvin v. Hauenstein, 110 Mo. 575; Le Bourgeoise v. McNamara, 82 Mo. 189. Infants can not appear by attorney in partition proceedings, and the judgment is voidable by the infant. (4) Anna Cochran Cummings and Medora Turner were married women at the time of the partition proceedings, and their husbands should have been joined with them. As they appeared by a next friend, the judgment is void as to them. (5) The judgment in the partition proceedings is void as to all plaintiffs in this action for the reason that all parties interested in the land were not made parties to the partition suit. Until all the parties interested in the land are before the court, partition can not be made. Hiles v. Rule, 121 Mo. 248; Estes v. Nell, 108 Mo. 172; Dameron v. Jameson, 71 Mo. 97; Freeman on Cotenancy and Partition [2 Ed.]. (6) The appearance of James Cochran and Chas. A. Cochran as defendants in the partition suit by Wm. Douglass, one of the attorneys for the plaintiffs, gave the court no jurisdiction over the person of Chas. A. Cochran. An attorney can not represent both sides in a case, even though the proceedings be amicable. Sherwood v. Railroad, 15 Barb. 650; Valentine v. Stewart, 15 Cal. 387; Herrick v. Catley, 1 Daly, 512; Weeks on Attorneys [2 Ed.], secs. 120, 120a, 271. (7) The omission of the signature of Anna C. Cummings and Medora Turner or of any attorney for them to the answer in the partition suit gave the court no jurisdiction over them in said suit. A pleading must be signed by an attorney or it is a nullity. R. S. 1889, sec. 2064; Oxley Stave Co. v. Whitson, 34 Mo.App. 624; Shields v. Quick, 8 M. & W. 289; Tidd's Practice, 671; Schiller v. Maltbie, 11 Civ. Proc. 304. (8) No claim of title by virtue of the tax deed can be made by the defendants because the purchase of the tax title inured to the benefit of the heirs of Harriet Cochran. The possession of a life tenant can not be adverse to the remainder-man, and the life tenant can not make it so by his acts and declarations. Sutton v. Casseleggi, 77 Mo. 397; Keith v. Keith, 80 Mo. 125; Salmons v. Davis, 29 Mo. 176. (9) The alienation of his life estate by James Cochran, or his failure to set it up in the partition proceedings, did not extinguish it. Beaume v. Chambers, 22 Mo. 36; Miller v. Bledsoe, 61 Mo. 96; Bradley v. Railroad, 91 Mo. 493.

Jefferson Brumback for respondents.

(1) The partition was an amicable one in equity on appearance of all the parties and was ratified by all parties to it. Gen. Stat. 1865, p. 654, sec. 1 (2 Wag. Stat. p. 1006, sec. 1); 2 Wag. Stat. p. 967, secs. 6, 8 and 10, p. 968, secs. 11 and 12, p. 1008, sec. 13, p. 1009, sec. 18; Benoist v. Thomas, 121 Mo. 660; Holloway v. Holloway, 97 Mo. 639; Dameron v. Jameson, 71 Mo. 97-100; Green v. Walker, 99 Mo. 73; 2 Wag. Stat. p. 887, sec. 4; Davenport v. City of Hannibal, 120 Mo. 151; Von Schrader v. Taylor, 7 Mo.App. 361; Payne v. Masek, 114 Mo. 631; Bank v. Garlinghouse, 53 Barb. 615; Travis v. Willis, 55 Miss. 557; Nicholson v. Cox, 83 N.C. 44. (2) Partition good as to George Lester Cochran. Fulbright v. Cannefox, 30 Mo. 425, 429; Laws, 1867, p. 134; Brandon v. Carter, 119 Mo. 572, 583; Holton v. Towner, 81 Mo. 360-367; 1 Wag. Stat. p. 672, sec. 2, p. 673, sec. 10; Beach, Modern Eq. Pr. [1 Ed.], p. 55, sec. 44, p. 57, sec. 45; Hilliard v. Carr, 6 Ala. 557. (3) Partition good as to Charles A. Cochran. Weeks on Attorneys [2 Ed.], sec. 120a; Cargile v. Regan, 65 Ala. 287; McDonald v. Wagner, 5 Mo.App. 56. (4) Partition good as to wives of appellants Cummings and Turner, the latter having no interest in the lands. Gallagher v. Delargy, 57 Mo. 29; Fairchild v. Creswell, 109 Mo. 29; Sutton v. Porter, 119 Mo. 100; St. Louis v. Lanigan, 97 Mo. 175; Huffer v. Riley, 47 Mo.App. 479; Phelps v. Walther, 78 Mo. 320; 2 Wag. Stat. p. 1001, sec. 8; Gen. Stat. 1865, chap. 161, sec. 8. (5) Partition answer good as to married women though not signed at the end. 2 Wag. Stat. p. 1018, sec. 27; Browne on Stat. of Frauds [4 Ed.], p. 442, sec. 357; 2 Wag. Stat. p. 1036, sec. 19, p. 1034, sec. 6; Harden v. Lee, 51 Mo. 244; Rosenheim v. Hartsock, 90 Mo. 365; Phillips v. Malone, 1 Minor (Ala.), 110; Boren v. Billington, 82 Tex. 137; Voorheis v. Giting, 22 S.W. 80; Ramo v. Wilson, 24 Vt. 517; 1 R. S. 1889, sec. 3231; Fontaine v. Hudson, 93 Mo. 69; Oxley Stave Co. v. Whitson, 34 Mo.App. 624-628; Shield v. Quick, 8 M. & W. 289; McQuillin's Pl. and Pr. [1 Ed.] p. 255, sec. 267; Ruch v. Jones, 33 Mo. 393; Burnett v. McCluey, 92 Mo. 230; Castleman v. Relfe, 50 Mo. 583. (6) Appellants could not overturn partition in equity on account of laches and land being held by bona fide purchasers for value and partition being ratified by all parties and no defense to suit being shown. Green v. Walker, 99 Mo. 73; Lingo v. Burford, 112 Mo. 149; Leonard v. Sparks, 117 Mo. 103; Burke v. City of Kansas, 118 Mo. 309; Zeibold v. Foster, 118 Mo. 349; Hamer v. Cook, 118 Mo. 476; Charley v. Kelley, 120 Mo. 134; Macey v. Stark, 116 Mo. 481; 2 Wag. Stat. p. 1034, sec. 6, p. 1035, sec. 7, p. 1037, secs. 20 and 23; Burnett v. McCluey, 92 Mo. 230; Avery v. Good, 114 Mo. 290; Hart v. Steedman, 98 Mo. 456; Lillibridge v. Ross, 59 Mo. 217. (7) Tax deed good. Laws, 1858, 1859 (Local Stat.), p. 207, sec. 2, p. 219, secs. 25, 27, 28, 29, p. 217, sec. 8, p. 218, sec. 16; Laws, 1857, p. 99, sec. 34; Laws, 1859-1860, p. 387, sec. 10, p. 388, sec. 21; Hopkins v. Scott, 86 Mo. 140. (8) The title of respondents good under statute of limitations. Watt v. Donnell, 80 Mo. 198; Cunningham v. Snow, 82 Mo. 592; Ridgway v. Holliday, 59 Mo. 444; Fairbanks v. Long, 91 Mo. 631; Barry v. Otto, 56 Mo. 179; Baker v. Oakwood, 123 N.Y. 16; Cummings v. Powell, 97 Mo. 524; Matison v. Ausmuss, 50 Mo. 551; Mather v. Walsh, 107 Mo. 151; Pentz v. Kuester, 41 Mo. 450; Miller v. Hardin, 64 Mo. 546; Smith v. Lindsey, 89 Mo. 80.

C. O. Tichenor, also, for respondents.

Macfarlane, J. Brace, P. J., and Barclay, and Robinson, JJ., concur.

OPINION

Macfarlane, J.

This suit is ejectment prosecuted by Charles A. Cochran, George Lester Cochran, A. L. Cummings and W. J. Turner as plaintiffs, the last two being the husbands respectively of Medora (Cochran) Turner and Anna (Cochran) Cummings in whose right they claim. Plaintiffs claim title as heirs at law of Harriet Cochran, deceased. Defendant Thomas is the tenant of his codefendants who claim title under a sheriff's deed in a certain partition proceeding in which they claim to have acquired the title of plaintiffs. They also claim under a tax deed and the statutes of limitation.

The petition is in the usual form, except that it avers the prior ownership of Margaret Cummings, her death and the inheritance of the land by plaintiffs as her heirs at law. The answer is in substance a general denial and a plea of the statutes of limitation.

The cause was tried to the court without a jury, "and at the request of defendants the court in its findings stated in writing the conclusions of fact found separate from its conclusions of law."

The substance of the finding of facts was that James Cochran was first married to Hannah Moore in 1819 by whom he had four children some of whom are still living. His first wife having died he married Harriet Ritchie, November 13, 1829. By this marriage Anna was born May, 1836, and married plaintiff, A. L. Cummings, October 11, 1858; plaintiff, Charles A., was born October 4, 1839; Medora was born November 19, 1842, and was married to plaintiff Turner, April 25, 1865, and plaintiff George L., was born March 7, 1855. Of this marriage was also born, August 27, 1846, Harriet, who died single and intestate, without issue, December, 1890; and Albert, born August, 1850, and who died single, intestate and without issue in September, 1866.

In February, 1831, the United States, by patent, conveyed to Gabriel Predom the southwest quarter of section 32, township 50, range 33 west. The lot sued for is part of this quarter section. The land claimed in...