Flynn v. Tate
| Decision Date | 05 March 1921 |
| Citation | 228 S.W. 1070,286 Mo. 454 |
| Parties | NANNIE E. FLYNN, Appellant, v. JOHN TATE |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Reversed and remanded.
F. B Klepper and W. S. Herndon for appellant.
(1) An examination of the pleadings in this case will show that the only issue was, whether or not the respondent obtained the interest of appellant, in the lands described in the petition, in the partition suit of Mary E. Lay and William A Martin v. Nora Scott and Nannie Morgan, or the unknown heirs of Nannie Morgan. The trial court held as the basis of its order dismissing the plaintiff's suit, that the evidence introduced by the plaintiff showed no title in her. The plaintiff did not attempt to show a clear title from the Government down, but she did show a common source of title in her ancestor, Henderson Martin. In addition to this the pleadings show that each party claims from the same common source. This was sufficient. Riley v. O'Kelly, 250 Mo. 857; Machine Works v. Bowers, 200 Mo. 235; Charles v. Whilte, 214 Mo. 211; Maynor v. Land & Timber Co., 236 Mo. 728; Toler v. Edwards, 249 Mo. 162. (2) The decree in the partition suit of Mary E. Lay and William A. Martin v. Nora Scott and Nannie Morgan, or the unknown heirs of Nannie Morgan, was void. The undisputed proof shows that at the time the suit was filed, and for twelve years prior thereto, the appellant's name was Nannie E. Flynn. The copy of the order published was against Nora Scott and Nannie Morgan. Service by publication against "Nannie Morgan" is not service against Nannie Flynn; and gave the court no jurisdiction. Ohlman v. Saw Mill Co., 222 Mo. 62; Freemar v. Hawkins, 77 Tex. 498, 19 Am. St. 769. The case of Schnitger v Rankin, 192 Mo. 35, relied upon by the respondent in the court below, has no application in this case for the reason the judgment in the Schnitger-Rankin case was in a tax suit and the statutes provided for tax suits to be brought against the record owner. (3) There is no allegation in the petition which will support the decree, to the effect that Mary E. Lay, William A. Martin and Nora Scott were the only heirs at law of Nannie Morgan, or to adjudge the said Nannie Morgan to be dead on account of none of her people having heard from her for eighteen years. (a) "A judgment by default on proof of publication must rest for its validity on the petition as it was when the order of publication was made." Cooper v. Guenther, 215 Mo. 564-5. (b) "A petition is as much a part of the record in this case as the judgment and if the judgment rendered is not authorized by the allegations of the petition, it is of course erroneous." St. Louis v. Wright Contracting Co., 210 Mo. 499. (c) There was personal service in the Wright case. Had there been only service by publication, the judgment would have been void. The petition must fairly justify and support the judgment rendered. Webb v. Carter, 121 Mo.App. 154; Black v. Early, 208 Mo. 313; Rush v. Brown, 101 Mo. 586; Jackson v. Rush, 87 Mo.App. 238; Sec. 2100, R. S. 1909; Phillips v. Broughten, 193 S.W. 593. (4) A sale in partition is a judicial sale and the rule of caveat emptor applies, and in no event can the purchaser acquire anything except the title which the parties themselves had. In the case at bar, the respondent could only acquire the title of those against whom there was a valid judgment. Smoot v. Judd, 161 Mo. 691; Pentz v. Keuster, 41 Mo. 447; Cashion v. Faina, 47 Mo. 133; Stevens v. Ellis, 65 Mo. 456; Hart v. Steedman, 98 Mo. 452.
Daniel H. Frost and E. C. Hall for respondents.
(1) The appellant was made a party to the partition suit and the publication against her was sufficient to bring her into court for all purposes so far as the partition of that tract of land was concerned. Schnitzger v. Rankin, 192 Mo. 35. (a) There is absolutely no proof that Nannie Morgan was married to Flynn at the date of this partition suit in 1915, and even if she was, she was one and the same person as Nannie Morgan. If this be not the correct construction, then no suit could ever be brought and proceeded with to judgment against female defendants absent from the State, especially when their whereabouts are unknown. She was as well notified by her name of Nannie Morgan as by that of Nannie Flynn, even if she was married to Flynn at the date of the partition suit, which the evidence does not show. Howard v. Brown, 197 Mo. 47. (b) The use of a name is to designate the individual of whom we speak, so as to distinguish him from some other person. Ohlmann v. Sawmill Co., 222 Mo. 66; In re Jones Estate, 27 Pa. St. 338. (2) The order of publication gives the title of the cause and sets forth the names of the brother, mother, sister of this respondent, and her own name as she was known to everybody who knew her in Missouri. She knew Nannie Morgan was the name she went under for many years, she knew that W. A. Martin was her brother, that Nora Scott was her sister and that Mary E. Lay was her mother, and her deposition shows that she knew where they lived and that Nora Scott was a non-resident of Missouri, just as the order of publication shows. It shows her own family group and shows by evidence to her which is unmistakable that she is the very identical person designated in that order of publication. Howard v. Brown, 197 Mo. 47. (3) The judgment in the partition suit was regular on its face and could not be collaterally attacked except for errors shown by its own record and cannot be impeached by matters in pais. Reed Bros. v. Nicholson, 158 Mo. 624; Abington v. Townsend, 271 Mo. 615; State v. Wear, 145 Mo. 162. (4) Appellant makes the point that there was no allegation in the original petition to justify that portion of the judgment vesting the interest of the appellant in her mother and brothers and sisters. Even if that be the case that would not affect respondent's title, which rests on that part of the decree ordering the land sold for division and partition, upon which appellant makes no attack. (5) There was no proof of title in the plaintiff, and if plaintiff has no title it is no concern of hers what defendant may have or claim. Wheeler v. Land Co., 193 Mo. 279.
BROWN, C. Regland and Small, CC., concur.
The petition was filed in the Clinton Circuit Court July 23, 1918, and states, in substance, that the plaintiff is the owner of an undivided one-sixth of thirty-three acres of land in that county, which it particularly describes; that the defendant is the owner of the undivided five-sixths, and is in possession claiming the entire title; that his adverse claim of her undivided one-sixth is based on a pretended decree of that court rendered at the September term thereof, 1915, in a partition proceeding entitled Mary E. Lay and W. A. Martin, plaintiffs, v. Nora Scott and Nannie Morgan, defendants. The prayer is that the court ascertain and determine the estate, title and interest of the plaintiff and defendant respectively in such real estate, and define and adjudge the title and estate of the plaintiff and defendant severally in and to the same, and for general relief.
The defendant answered by general denial, and also "that in a certain cause pending in the Circuit Court of Clinton County, Missouri, entitled Mary E. Lay and William Martin, plaintiffs, v. Nora Scott and Nannie Morgan, defendants, for partition and sale of the real estate described in the petition, a decree was entered ascertaining the rights and interests of the parties therein and by its said decree did find and determine that the said Nannie Morgan had disappeared from his home in Clinton County, Missouri, and had gone out of the State and had not been heard from for a period of fifteen years, ordered that the interests of plaintiff in said real estate be ordered sold and distributed among the other heirs of said estate set forth in said petition."
It further pleaded that the court had jurisdiction of the subject-matter and parties to said cause; that the decree was valid against plaintiff and all other parties thereto and that in pursuance thereof the land was sold by order of the said court to the defendant who paid the full amount of the purchase price and received a deed therefor. That he purchased in good faith not being aware that plaintiff had ever changed her name to Nannie Flynn, if she had so changed it.
The reply was a general denial. Upon trial the court found that plaintiff had no title to the land and dismissed the petition. The plaintiff thereupon after the usual motions filed and determined perfected this appeal.
Plaintiff introduced in evidence the original petition filed in said court July 21, 1915, entitled Mary E. Lay and W. A. Martin, plaintiffs, v. Nannie Morgan and Nora Scott or the unknown heirs of Nannie Morgan, defendants.
It stated, in substance, that Henderson Martin died intestate on the day of , 188-, the owner in fee of 55 acres of land in Clinton County, including the 33 acres in question, leaving his widow Mary E. Henderson, now Mary E. Lay, his sons William A. Martin and Andy Martin and his daughters, Nannie Morgan and Nora Scott his heirs at law.
That on the day of , 188-, the said heirs at law agreed among themselves upon a parol partition of said land by which each party was to receive eleven acres and entered into possession of the several parts so allotted; that afterward on the 29th day of October, 1885, the said Nannie Morgan conveyed her interest therein to John Miles, who in January, 1893 conveyed it to William A. Martin, who on the 21st day of January, 1893, joined with Mary E. Lay, Nora Scott and Andy Martin, conveyed the shares set off to Nannie Morgan and William A. Martin by said parol agreement to...
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