Davidson v. I. M. Davidson Real Estate & Investment Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGRAVES, J.
Citation125 S.W. 1143,226 Mo. 1
Decision Date23 December 1909

125 S.W. 1143

226 Mo. 1



Supreme Court of Missouri, First Division

December 23, 1909

[125 S.W. 1144]

Appeal from Mississippi Circuit Court. -- Hon. Henry C. Riley, Judge.


Henry N. Phillips for I. M. Davidson Real Estate and Investment Co.; Wilson Cramer and John G. Wear for Jas. L. Dalton.

(1) It was a part of the ancient and well-defined jurisdiction of the courts of chancery to construe wills and to declare the limitations of trusts created thereby; and the creation of our county and probate courts has not divested them of this power in this State. Hamer v. Cook, 118 Mo. 476; Hayden v. Marmaduke, 19 Mo. 403; Church v. Robberson, 71 Mo. 326; Bank v. Chambers, 96 Mo. 459; Heady v. Crouse, 203 Mo. 114. The circuit courts of this State have all general commonlaw jurisdiction, including equity jurisdiction of course, which is not conferred upon another court or tribunal. Hope v. Blair, 105 Mo. 85; Sauter v. Leveredge, 103 Mo. 615; Castleman v. Relfe, 50 Mo. 583; Wonderly v. Lafayette Co., 150 Mo. 535; State ex rel. v. Dearing, 180 Mo. 64. Any one claiming as a beneficiary under the will may maintain a suit to construe the will. Church v. Robberson, 71 Mo. 326; Glover v. Shipley, 127 Mo. 163; Clark v. Carter, 200 Mo. 535; Heady v. Crouse, 203 Mo. 114. The judgment was not irregular, in the proper use of that term, and a court, therefore, would have no power after the term at which it was entered to set it aside, and, especially so, not at the instance of the parties seeking, obtaining and reaping the fruits of that judgment. Reilly v. Nicholson, 45 Mo. 160; Jones v. Hart, 60 Mo. 351; Gray v. Bowle, 74 Mo. 419; State ex rel. v. Lentz, 178 Mo. 378; Hall v. Lane, 123 Mo. 633; Bois v. Elliott, 65 Mo.App. 100. (a) The parties here complaining were all in court and the court therefore had jurisdiction of their persons. (b) The lands described in the petition and sought to be partitioned were all located in Butler county, Missouri, and therefore the court had jurisdiction of the subject-matter. (c) The court exercising common law and equity jurisdiction had the right and power to construe the will, terminate the trust attempted to be created therein, and the judgment and decree of the circuit court construing the second clause of the will of I. M. Davidson, and ordering partition and sale of the real estate belonging to said estate and not being appealed from, nor in any way affected by said circuit court, at that term or the term thereafter, when the sale took place, therefore stands as a solemn adjudication of that court, and cannot now be disturbed. Ashby v. Glasgow, 7 Mo. 320; Hill v. St. Louis, 20 Mo. 584; Harbor v. Railroad, 32 Mo. 425; Wilson v. Boughton, 50 Mo. 18; Downing v. Still, 43 Mo. 316; State ex rel. v. Ross, 118 Mo. 47; Hall v. Lane, 123 Mo. 633. (2) Was Monday, the 12th day of October, 1903, the day of the partition sale, one of the regular and legal days of the October term, 1903, of the circuit court of Butler county? The October term of said circuit court, in 1903, and now, was fixed to begin on the first Monday in October. In 1903, the first Monday in October was the 5th day of that month, and if court convened on that day and began its business, and did not adjourn before the 12th to court in course, or to some day beyond the 12th, then it was a regular and legal day in said term. Proceedings of a court are known by its records only, and cannot be established by parol testimony. Milan v. Pemberton, 12 Mo. 602; Dennison v. St. Louis Co., 33 Mo. 171; Mobley v. Nave, 67 Mo. 549; Riley v. Pettis Co., 96 Mo. 318; Maupin v. Franklin Co., 67 Mo. 327; Johnson Co. v. Wood, 84 Mo. 516; Kansas City v. Railroad, 81 Mo. 296; Reppy v. Jefferson County, 47 Mo. 69; Sanderson v. Pike County, 195 Mo. 604. The records of courts cannot be contradicted by parol evidence under claim that a mistake was made in entering a matter of record. Mobley v. Nave, 67 Mo. 546. It is to be presumed that everything appearing upon the records was entered thereon by authority of the court. State v. Searcey, 46 Mo.App. 421; State v. Searcy, 111 Mo. 236; State v. McCord, 134 Mo.App. 74. (3) The sale shall take place during some day of the term of the court, and be governed by the same regulations prescribed by law for the sales of real estate under execution, notice thereof being given in the same manner by the sheriff as provided by law for such sales. R. S. 1899, secs. 4407 and 3197. A term of court continues until it is adjourned or until it expires according to the time established by law. 11 Cyc. 732; King v. Sears, 91 Ga. 577; Jasper v. Schlesinger, 22 Ill.App. 637; Railroad v. Harrel, 7 Kan. 380; Parsons v. Hathaway, 40 Me. 132; Townsend v. Chew, 31 Md. 247; People v. Bank, 53 Barb. (N. Y.) 412; State v. Pealey, 107 N.C. 808; Commonwealth v. Thompson, 18 Pa. Co. Ct. 487; DeLeon v. Barrett, 22 S.C. 412; Labadie v. Dean, 47 Tex. 90; Clegg v. Galveston County, 1 Tex. Civ. App. 58. Again, the whole term of a court is regarded by law as if but one day. Cunningham v. Ashley, 13 Ark. 653; Dye v. Knox, 1 Bibb 573; Manchester v. Herrington, 10 N.Y. 164; Saunder v. Bobo, 2 Bailey (S. C.) 492; The Canary No. 2, 32 F. 536. And all acts done within the term as contemporaneous. 11 Cyc. 732. The session, of a court, means the time a court is open for the transaction of business. The Butler County Circuit Court was convened on the morning of October 12th and adjourned on the evening of October 12, 1903, to Tuesday, October 13, 1903, when the court again convened. (4) No person will be allowed to adopt that part of a transaction which is favorable to himself and reject the rest, to the injury of the one from whom he derived the benefit. Austin v. Loving, 63 Mo. 19; Packman v. Meatt, 49 Mo. 345; Chase v. Williams, 74 Mo. 437; Wilcoxon v. Osborn, 77 Mo. 628; Nanson v. Jacob, 93 Mo. 346; Boogher v. Frazier, 99 Mo. 325; McClanahan v. West, 100 Mo. 323; Clyburn v. McLaughlin, 106 Mo. 524; Lanier v. McIntosh, 117 Mo. 519; Fische v. Siekmann, 125 Mo. 180; Cockran v. Thomas, 131 Mo. 277; Hartman v. Hornsby, 142 Mo. 376; Purse v. Estes, 165 Mo. 58; McCune v. Goodwell, 204 Mo. 337; Fenwick v. Wheatley, 23 Mo.App. 644; Lawrence v. Owens, 39 Mo.App. 325; Carter v. Shotwell, 42 Mo.App. 667; Shotwell v. Munroe, 42 Mo.App. 674. Where those who are entitled to avoid a sale, adopt or ratify it by receiving the whole or any part of the purchase money, they will be estopped from subsequently setting it aside. Cases cited above. And it makes no difference whether the proceedings under which the sale occurs are voidable or wholly void. Cases cited above. When a party has taken the fruits of a judicial proceeding, he cannot be heard afterward to question it. Cases cited above. Akens v. Hobbs, 105 Mo. 127; Pockman v. Meatt, 49 Mo. 345; Loving v. Groomer, 110 Mo. 632; Landis v. Hamilton, 77 Mo. 554; Lily v. Meuhe, 143 Mo. 137. By accepting the proceeds of a sale, in whole or in part, the proceedings are ratified, and the party receiving the benefits is estopped, although as to him, in the absence of ratification, the proceedings and sale would have been wholly void. Hartman v. Hornsby, 142 Mo. 368; Nelson v. Hirsch, 102 Mo.App. 498. One cannot, either in law or in equity, claim both land and proceeds arising from its sale. Nolle v. Thompson, 173 Mo. 595; Nelson v. Hirsch, 102 Mo.App. 498. The judgment of the court approving the report of sale was a final judgment from which an appeal might have been taken. Mens v. Bell, 45 Mo. 333; Bush v. White, 85 Mo. 356; Wauchope v. McCormack, 158 Mo. 660; St. Louis v. Brooks, 107 Mo. 380; Slagel v. Murdock, 65 Mo. 522; James & Ray ex parte, 59 Mo. 280; Patton v. Hanna, 46 Mo. 314; Parker v. Railroad, 44 Mo. 415. The approval of such sales rests largely in the discretion of the court, and its action in setting aside the sale in this case upon the coming in of the court, and before other interests had intervened, ought not to be interfered with, unless there was manifest abuse of such discretion. Pomeroy v. Allen, 60 Mo. 530; Goode v. Crow, 51 Mo. 212; Mitchell v. Jones, 50 Mo. 438; Rannels v. Washington U., 96 Mo. 226; Anderson v. Ragan, 105 Mo. 406; Wauchope v. McCormack, 158 Mo. 666. The confirmation or rejection of a sale of land in partition, is a matter resting largely in the discretion of the lower court, and the Supreme Court will be very slow to interfere with its action. Pomeroy v. Allen, 60 Mo. 530; Murray v. Yates, 73 Mo. 16; Akens v. Hobbs, 105 Mo. 133; Burden v. Taylor, 124 Mo. 17; Wauchope v. McCormack, 158 Mo. 666. The sale seems to have been conducted with fairness.

David W. Hill for respondent; Louis F. Dinning and John M. Atkinson for non-appealing defendants.

(1) As a general rule, circuit courts have jurisdiction to partition real estate, but the circuit court of Butler county had no power, authority or jurisdiction to partition the real estate of Davidson, contrary to the intention expressed in his will. The Missouri statute withdraws such power, authority and jurisdiction from the circuit court in such cases. R. S. 1899, sec. 4383. (2) The judgment of the circuit court of Mississippi county in setting aside the partition sale and all proceedings relative thereto is manifestly right and proper, but the court should have gone farther and set aside the interlocutory judgment of partition, for the reason that the circuit court of Butler county had no jurisdiction of the subject-matter, because the amended petition in partition did not state a cause of action. Such amended petition contained an exact copy of the will, which showed on its face that alienation of the property was prohibited for a period of fifteen years from the date of the death of the testator, which term has not yet expired, and the interlocutory judgment of partition, being based upon a...

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