Fischer v. Siekmann

• Citation: 28 S.W. 435,125 Mo. 165
• Parties: Fischer, Appellant, v. Siekmann
• Decision Date: 26 November 1894
• Court: United States State Supreme Court of Missouri

28 S.W. 435

125 Mo. 165

Fischer, Appellant, v. Siekmann

Supreme Court of Missouri, First Division

November 26, 1894

Appeal from Warren Circuit Court. -- Hon. W. W. Edwards, Judge.

Affirmed.

J. C Kiskaddon for appellant.

(1) Where the facts are undisputed and the evidence documentary and admissions of record, the appellate court will review the action of the trial court and decide if its judgment is warranted by the facts, although no instructions may have been asked or given. Wilson v. Albert, 89 Mo. 537; Willi v. Dryden, 52 Mo. 319; Henry v. Bell, 75 Mo. 194; Brown v. Ass'n, 40 Mo.App. 425. (2) Quarantine is a life estate in the widow, subject to be defeated before her death by the lawful assignment of her dower. G. S. 1865, p. 522, sec. 21; R. S. 1889, sec. 4533; Holmes v. Kring, 93 Mo. 452; Colvin v Hauenstein, 110 Mo. 575; Jones v. Manly, 58 Mo 559. (3) The possession of the tenant for life is not adverse to the remainder-man, and the life tenant can not, by his acts, declarations or dealings with the estate, make his or his grantee's possession adverse, so as to enable him or his grantee to invoke the statute of limitations. The statute only begins to run at the death of the life tenant. Holmes v. Kring, 93 Mo. 452; Agan v. Shannon, 103 Mo. 661; Thomas v. Black, 113 Mo. 66; Salmon v. Davis, 29 Mo. 176; Sherwood v. Baker, 105 Mo. 472; Null v. Howell, 111 Mo. 273. (4) In the record of the partition suit offered in evidence it appears that there was no service of process on Joseph Fischer, and any recital of appearance is expressly contradicted by the roll. The court had no jurisdiction of the person of Joseph Fischer, nor any power or authority to appoint a guardian ad litem until process had been properly served. Campbell v. Co., 84 Mo. 352; Brown v. Woody, 64 Mo. 547; Higgins v. Beckwith, 102 Mo. 456; Gibson v. Chouteau, 29 Mo. 536; Payne v. Masek, 114 Mo. 631. (5) Where there is want of jurisdiction over the person, the judgment is void and can be attacked collaterally. Hewitt v. Weatherby, 57 Mo. 276; Adams v. Cowles, 95 Mo. 501; Laney v. Garbee, 105 Mo. 355; Fithian v. Monks, 43 Mo. 502. (6) So far as Joseph Fischer is concerned dower was never assigned. R. S. 1889, sec. 4549; Lenox v. Clark, 52 Mo. 115; Brawley v. Ranney, 67 Mo. 280; Campbell v. Co., 84 Mo. 352. (7) Probate courts have no jurisdiction over the estates of adults. In the case at bar, the probate court had no jurisdiction to receive an inventory or make a settlement. An order appointing a guardian is essential, and the fact that it assumed jurisdiction must appear by the record. R. S. 1879, sec. 2562; McCloon v. Beatty, 46 Mo. 391; Schell v. Leland, 45 Mo. 289. (8) Not even enough appears to authorize the entry of an order nunc pro tunc appointing a guardian. Priest v. McMaster, 52 Mo. 60; Hansbrough v. Fudge, 80 Mo. 307; Loring v. Groomer, 110 Mo. 632. (9) It would follow that no order was ever made. (10) When a court has no jurisdiction of the subject-matter, appearance will not confer it. Stone v. Corbett, 20 Mo. 350; Cones v. Ward, 47 Mo. 289; State v. Bulling, 100 Mo. 87. (11) The alleged inventory, settlement or voucher was not identified as record of the probate court. There was no entry of record of their filing and the settlement was not recorded as required. R. S. 1889, sec. 5319. Nor was the settlement filed at the term preceding the term at which it purports to have been made; nor was any notice given or published. R. S. 1889, sec. 5329; Read v. Bakewell, 8 Mo.App. 549. (12) The final settlement, if anything, is therefore, only a receipt and subject to explanation. Riley v. Kershaw, 52 Mo. 224; Fountaine v. Inst., 57 Mo. 652; Jaerdan v. Schrimpf, 77 Mo. 283. (13) To constitute an estoppel in pais, it is essential that there must be a plain and certain false representation or concealment of material facts with knowledge of the truth and with intent that the person to whom said representations are made, or some other person, shall act upon them; and some one in reliance upon such representations must be induced to act in ignorance of the truth. 7 Am. & Eng. Encyclopedia of Law, 12, et seq.; Gray v. Gray, 83 Mo. 106; Taylor v. Zepp, 14 Mo. 482; Burke v. Adams, 80 Mo. 504; Monks v. Belden, 80 Mo. 639. (14) If Joseph Fischer did any act equivalent to a representation, he must have done it after he attained his majority, as an estoppel in pais can not be asserted against a minor. Burke v. Adams, 80 Mo. 504; Campbell v. Co., 80 Mo. 352; McBeth v. Trabue, 69 Mo. 642. (15) Mary A. Fischer, being sui juris, answered in the partition suit, bought at the partition sale, took a deed, and receipted the sheriff for Joseph Fischer's share of of the purchase money. She is conclusively presumed to know that Joseph Fischer was not a party, and no act or representation of his induced her to assume the relation she did toward him and his property. Big. on Estoppel [5 Ed.], 37; Adams v. Batz, 1 Watts (Pa.), 425; Monks v. Belden, 80 Mo. 639. (16) There is no sufficient evidence that Joseph Fischer knew that he had received any portion of the purchase money. Burke v. Adams, 80 Mo. 504; Bales v. Perry, 51 Mo. 449. (17) But if both of them knew the facts, and there is no doubt Mary A. Fischer did, then no estoppel is raised. Douglass v. Cissna, 17 Mo.App. 44; Gray v. Gray, 83 Mo. 106. (18) If Joseph Fischer is estopped, so are Mary A. Fischer and her grantee, and an estoppel against an estoppel sets the matter at large. Roberts v. Moseley, 64 Mo. 507; Shaw v. Shaw, 86 Mo. 594; Baker v. Railroad, 86 Mo. 75; 7 Am. & Eng. Encyclopedia of Law, 25. (19) Finally, the question of estoppel is not primarily between plaintiff and defendant, but between plaintiff and Mary Ann Fischer. Defendant has whatever Mary A. Fischer had, and no more. If at the partition sale Mary A. Fischer acquired the legal title, then defendant has that; if at any time she acquired an equity or an equitable title, then he has that; if she acquired nothing, he has nothing. He holds under her, in privity with her. 7 Am. & Eng. Encyclopedia of Law, 5, 6.

Silver & Brown and Peers & Morsey for respondent.

(1) Pretermitted heirs can maintain ejectment for their inheritance, the will as to them being as if it never existed. McCracken v. McCracken, 67 Mo. 590. (2) A judgment in partition establishes the title to the land and is conclusive thereon as to all the parties to the record. Forder v. Davis, 38 Mo. 108; Holladay v. Langford, 87 Mo. 577; Bobb v. Graham, 89 Mo. 200. (3) The judgment in the partition suit was not absolutely void as against Joseph Fischer, present plaintiff, because of his minority. "Service of summons on a minor is to be had precisely as it must on an adult." Railroad v. Campbell, 62 Mo. 585; Baumgartner v. Guessfeld, 37 Mo. 36. The service of process was at most defective, and Joseph Fischer having answered by his guardian ad litem, the judgment is not subject to collateral attack. (4) Plaintiff having become of age on February 4, 1875, more than sixteen years before the filing of the present action, he is barred by the ten years' statute of limitations. First. The plaintiff being a pretermitted heir was not prevented from maintaining his action by the alleged life estate in Mary Ann Fischer. McCracken v. McCracken, supra. Second. The judgment in the partition suit conclusively determined and settled all the title and right of Mary Ann Fischer, as to the realty of Francis Fischer, and among other things that no life estate (if any ever existed) remained in the property involved in this action. Such being the case there was no legal obstacle in plaintiff's way to bringing suit, certainly not from and after he became of age, which was more than sixteen years before the bringing of this action. (5) The evidence supports the defense of estoppel set up in defendant's answer, and is sufficient in itself to bar plaintiff's recovery, and, besides, plaintiff can not have both the money and the land. McClanahan v. West, 100 Mo. 310.

Brace J. Black, C. J., and Macfarlane, J., concurring and Barclay, J., also in the result on the ground stated in the third paragraph.

OPINION

Brace, J.

This is an action in ejectment instituted in the Warren county circuit court by the plaintiff Joseph Fischer to recover the one undivided third part of twenty-one acres of land described in the petition. The defense was a general denial, a plea of the statute of limitations, and an equitable estoppel. The case was tried by the court without a jury.

The facts are, that in the year 1869 one Franz Fischer died seized and in possession of certain lands in said county, of which the tract in question was a part, leaving surviving him, his widow Mary Ann, two children, Herman and the plaintiff Joseph, and two grandchildren, Josephine and Dinah Schroer. His widow administered upon his estate, made final settlement thereof on the eighth of April, 1875, showing a balance, in her hands due said estate, of $ 359.86, and died in the year 1890. Joseph was born Febrnary 5, 1854, and instituted this suit on the twenty-first of April, 1891.

On the twenty-second of March, 1872, and when the said Joseph was only eighteen years, one month and twenty-two days old, the said Josephine and Dinah Schroer by their next friend, duly appointed for that purpose, instituted a suit in the circuit court of said county against the said Mary Ann, Herman, and Joseph Fischer for the assignment to the said Mary Ann of her dower in said lands, and for the partition of the remainder among the other parties according to their respective rights and interests; the petition therein alleging that subject to the dower of the said Mary Ann, the said Josephine and Dinah grandchildren as aforesaid, were each entitled to the one undivided sixth part...