Fisher v. Siekum

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

28 S.W. 435

125 Mo. 165

FISHER v. SIEKUM.

Supreme Court of Missouri, Division No. 1.

November 26, 1894.

JUDGMENT — COLLATERAL ATTACK — ADVERSE POSSESSION — ESTOPPEL.

1. On collateral attack by a minor on a judgment in partition, where the sheriff's return does not show that a copy of the writ was delivered to plaintiff, or left at his usual place of abode, with a person of his family over 15 years old, the judgment is a nullity as to plaintiff.

2. A widow whose dower has never been assigned to her cannot, by remaining in possession, acquire title by adverse possession, as against her son, a minor heir.

3. Though partition proceedings may be void for irregularities, plaintiff, having received the proceeds of the sale of his share of the land long after he attained his majority, will be estopped to impeach the validity thereof.

Appeal from circuit court, Warren county; W. W. Edwards, Judge.

Action in ejectment by Joseph Fisher against Anton Siekum to recover possession of an undivided portion of land. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

J. C. Kiskaddon, for appellant. Silver & Brown and Peers & Morsey, for respondent.

BRACE, J.

This is an action in ejectment instituted in the Warren county circuit court by the plaintiff, Joseph Fisher, to recover the one undivided third part of 21 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 Fisher died seised and in possession of certain lands in said county, of which the tract in question was a part, leaving, him surviving, 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 8th of April, 1875, showing a balance in her hands due said estate of $359.85, and died in the year 1890. Joseph was born February 5, 1854, and instituted this suit on the 21st of April, 1891. On the 22d of March, 1872, and when the said Joseph was only 18 years, 1 month, and 22 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 Fisher 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 thereof, and the said Herman and Joseph, children as aforesaid, were each entitled to an undivided one-third part thereof, in fee simple. The summons issued therein on same day, returnable to the April term, 1872, of said court, was served upon the defendants in the manner following: "Executed the within writ in the county of Warren on the 23rd day of March, A. D. 1872, by delivering a copy of same, with the petition, to Mary Ann Fisher, and a copy of the same to Herman Fisher, and leaving a copy of the same at the residence of Joseph Fisher. S. W. Hopkins, Sheriff of Warren county, Mo." At the April term, 1872, of said court a joint answer of all the defendants, signed by their attorney, was filed. At the following October term, 1872, this answer was withdrawn, and the widow, the said Mary Ann, filed her separate answer, in which she admitted the relation of the parties as stated in the petition; averred that the said Franz died testate, and that by his last will, duly admitted to probate, he devised his said real estate to her, by the following provision thereof: "I wish my property, real and personal property, to be divided as follows — My wife Mary Ann Fisher shall be admr. of my estate & I do hereby relinquish all my right to her. She shall have the entire control of my property as long as she lives * * *," — and alleged that she was in possession of said real estate, holding the same as devisee under said will. To this answer the plaintiff replied, admitting that the said Franz died testate, having made his will as charged in the answer, but averred that none of his children or descendants are therein mentioned or provided for, and as to them he died intestate. Thereupon, the cause coming on for trial at the same term, the court found that: "The above-named parties, as heirs of Francis Fisher, deceased, are entitled to the above-described real estate in the following proportions, to wit: Defendant Mary Ann Fisher, as the widow of Francis Fisher, deceased, to her dower right of one-third part thereof during her natural life, and the other defendants, Herman Fisher, and Joseph Fisher, children of said Francis Fisher, each to the one undivided third part thereof, subject to said dower interest, and the plaintiffs Josephine Schroer and Dinah Schroer as grandchildren, of said Francis Fisher, deceased, each to the undivided one-sixth part thereof," — and decreed that the dower interest of the said Mary Ann be administered and set off to her, and that partition of the remainder be made among the other parties according to their respective rights and interests as found by the court, and appointed commissioners for that purpose. The commissioners then appointed having failed to act, at the April term, 1873, other commissioners were appointed, who made report of their proceedings to the October term, 1873. Pending action upon their report, one Joseph Eikelkamp, as the next friend of the said Joseph Fisher, filed a motion to reject the report of the commissioners, and to set aside the judgment of partition theretofore rendered in the cause, for the reason "that the said Joseph Fisher was at the time of the commencement of said suit, and now is, an infant under the age of 21 years, and that in said suit he is not represented either by a general guardian or a guardian ad litem," which motion was on the next day of said term sustained, and the judgment of partition aforesaid set aside. Thereupon, the court appointed C. E. Peers guardian ad litem of the said Joseph, who filed his answer as such; and the case again coming on to be heard, on the same day, the court made the same finding as before, and decreed assignment of dower and partition of the premises as before, and appointed other commissioners to admeasure and make the same. At the April term, 1874, these commissioners made report of their proceedings, setting off certain portions of said land, containing about 195 acres, to the widow, for her dower, and reporting that the remainder of said land, containing about 150 acres, was not susceptible of division in kind, which report was by the court approved, and such remaining lands ordered to be sold by the sheriff, and the proceeds, less the costs, be divided among the other parties according to their respective rights and interests, as found by the court, and that said sheriff make report of his proceedings under such order at the next term of said court. Pursuant to this order the said lands, including the 21-acre tract in controversy, were sold by the sheriff according to law at the October term, 1874, of said court, and the said Mary Ann Fisher became the purchaser thereof; and at the April term, and on the 23d day of April, 1875, the sheriff made report of his sales under said order, and on the same day executed and acknowledged in open court a deed in due form, acknowledging the receipt of the purchase money, and conveying said lands, including the tract in controversy, to the said Mary Ann Fisher, which deed was thereafter, on the 11th day of May, 1875, filed for record. And it was admitted on the trial that the defendant was in possession of the tract sued for, and that he has all the title to it that Mary A. Fisher could convey, and "that he and those under whom he claims [which are Mary A. Fisher and her grantees] have been in continuous, open, and notorious possession of the premises sued for, claiming title thereto, for more than ten years before the beginning of this action."

It appears from the evidence that at some time prior to the 10th day of November, 1874, the said Mary Ann had qualified as curatrix of the estate of her son Joseph, by executing and filing a bond as such in the probate court of said county, and that the same was approved by said court. Of her appointment as curatrix, however, no record entry could be found. After her purchase as aforesaid, in October, 1874, at the sheriff sale in partition, and on the 10th of November, 1874, she executed and delivered to the sheriff the following receipt in part payment of the purchase money for the land she bought at that sale:

"Received, Warrenton, Mo., Nov. 10, 1874, of B. Livsey, sheriff of Warren county, Mo., the sum of $1,333.33, less $149.66, cost of partition, in full of the proportional share of Jos. Fisher, a minor, of whose estate I am guardian and curator, the same being the part of the said Joseph in the partition of the estate of Franz Fisher, deceased, sold at the October term of the Warren circuit court, and bought by me at said sale for the price and sum of $4,000, one-third of which belongs to the said Joseph, after deducting his part of the costs, $149.66, which leaves $1,183.67, which the latter sum this receipt is intended to cover; and I hereby authorize said sheriff to execute to...