Forder v. Davis

• Decision Date: 31 March 1866
• Citation: Forder v. Davis, 38 Mo. 107 (Mo. 1866)
• Parties: SAMUEL W. FORDER, Appellant, v. ROBERT DAVIS, Respondent.
• Court: Missouri Supreme Court

38 Mo. 107

SAMUEL W. FORDER, Appellant,

v.ROBERT DAVIS, Respondent.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Land Court.

This was an action of ejectment, commenced in the St. Louis Land Court, at the March term, 1857, to recover lot No. 182, in Carondelet commons, south of the river Des Peres. The defendant, in his answer, denied the title of the plaintiff; and also that he, defendant, had entered into the possession of the lot. At the time of the trial, being the October term, 1863, the defendant, with leave of the court, filed a new answer, setting forth, as a further defence, that the lot in dispute was part of the Martigny tract, which was owned by the plaintiff and defendant and others in common; that, pending the present suit, a suit in partition had been instituted among the tenants in common, and so much of the lot now in controversy as is within the Martigny tract had been alloted to a party other than the plaintiff. The case was tried by the court below as a jury.

On the trial, it was admitted by the defendant that the premises sued for were within the survey of the commons of Carondelet, as surveyed by Joseph C. Brown, in 1834, under the confirmation of said commons by virtue of the act of Congress of June 13th, 1812, § 1; and to show title in plaintiff under said commons, plaintiff read in evidence: 1. A deed from the town of Carondelet for the premises sued for, to W. K. Burnet, dated April 12, 1845; 2. A deed from W. K. Burnet to George Burnet, dated April 5, 1848, for said premises; 3. A deed from George Burnet to Morey T. Andrews, dated June 18, 1851; 4. A deed dated April 9, 1855, from said Andrews to the plaintiff; 5. A deed from the plaintiff to said Andrews, dated October 1, 1859.

The plaintiff then offered evidence tending to prove that defendant was in possession of the premises sued for at the commencement of this suit; and rested his case.

The defendant offered in evidence a confirmation by act of Congress of July 4, 1836, to J. B. Martigny's representatives, for a tract of land of 12 by 40 arpents, designated as U. S. survey 3119, which includes part of the premises sued for; outside of which survey it was admitted defendant had neither possession nor claim of title.

Defendant then read deeds showing a derivative title from said Matigny to Joseph Davis, ancestor of defendant, as early as December 9, 1841, for six-ninths of said tract.

Defendant then offered evidence tending to prove that under said title said Davis entered into possession of said Martigny tract, claiming title, and that said tract had been possessed by said Davis, and those claiming under said Martigny, from December, 1841, to the time of trial.

Defendant offered evidence tending to prove that so much of the premises sued for as lies within the Martigny survey 3119 was, at the commencement of this suit, in the possession of Mary Davis, widow of said Joseph Davis, and not in the possession of the defendant.

Further, the defendant offered in evidence a record of said Land Court of a suit commenced July 22, 1854, by the plaintiff and others, claiming title to said Martigny tract, against the defendant and others, heirs of said Joseph Davis, claiming part of said tract, in which suit judgment of partition was rendered, deciding that the parties thereto were entitled to partition; in which suit, commissioners made a report of partition between the parties, to which report exceptions were taken by the defendants and sustained, whereupon said plaintiff dismissed said suit of partition on June 11, 1856.

Defendant then read in evidence the record of said Land Court, No. 39, October term, 1859, of a suit in partition brought by Mary Davis, the defendant, and others, claiming two-third parts of said Martigny tract under said Joseph Davis, against said Forder and others, claiming one-third of said tract, in which suit said Forder, plaintiff, claimed and proved that he had, prior to the commencement of said partition suit, become the owner of the one entire third of said Martigny tract; and the said Forder in his answer claimed that he had also purchased the outstanding title of the commons of Carondelet to parts of said Martigny tract, and prayed to be allowed the benefit of the purchase of said outstanding title for lots Nos. 169, 170 and 171 of said commons.

The said suit was commenced in August, 1859; defendant answered October 19, 1859, and judgment of partition was rendered, in which one-third of said tract was assigned to Forder, commissioners were appointed, the report of commissioners was confirmed, and the parties to said suit paid their respective shares of the costs. The land sued for was not assigned to the plaintiff or defendant.

Defendant also showed in evidence that plaintiff and others, under the Martigny title, were in the year 1848, and have since remained, in actual possession of the eastern portion of said Martigny tract, claiming title to one-third of said tract under said Martigny, and that he had 130 acres of said tract under fence.

Defendant called Dr. Hill, one of the commissioners in partition in the last mentioned suit, who, upon cross-examination, stated that Forder claimed before the commissioners that he owned the outstanding title of arondelet to lots 169, 170 and 171, and that in the partition the land mbraced in said lots 169, 170 and 171 was in fact assigned to said Forder, the plaintiff, in the report of partition, but they did not regard the title to said lots in the partition. This was all the evidence in the case.

The defendant prayed the court to declare as matter of law, that by reason of the proceedings and judgment in said partition suits aforesaid, and the tenancy in common of said parties, the plaintiff was precluded from maintaining his action of ejectment for land embraced in said partition, and allotted to parties other than the plaintiff. The court did so decide. To this decision of the court the plaintiff duly excepted. Judgment being given for the defendant, and a motion for a new trial overruled, the plaintiff appealed.

R. M. Field, for appellant.

I. From the date of the deed by Forder to Andrews, October 1, 1859,

the present suit was prosecuted in behalf of Andrews, and he became and is the substantial plaintiff--Leg. Acts, Feb. 28, 1859.

II. Andrews was no party to the proceedings in partition, and was in no manner affected by them.

III. If it be objected that the deed to Andrews was made after the commencement of the partition suit, and so falls under the maxim, pendente lite, nihil innovetur, the answer is that the partition suit was commenced after the present action of ejectment, and the maxim just quoted works in favor of the plaintiff rather than against him.

IV. But the proceedings in partition could have no effect even against Forder, the nominal plaintiff, as to the land in controversy, for various reasons:

1. A judgment in partition is no bar unless the title is distinctly put in issue, or necessarily decided--Colton v. Smith, 11 Pick. 311. It is manifest from the pleadings that the partition had no reference to any other than the Martigny title; besides, it was proved by Dr. Hill, one of the commissioners, that in the partition no regard was had to the Carondelet title.

2. To draw in question the Carondelet title, the City of Carondelet was a necessary party; for Carondelet had only granted a leasehold, and the fee simple still remained in the city.

3. The adversary titles under Martigny and under Carondelet could not be settled in a partition suit; for the holders of those titles respectively were different persons. This was decided in Lambert v. Blumenthal, 26 Mo. 471.

Whittelsey, for respondent.

I. In a partition between tenants in common, there is a warranty of title as between said tenants in common that the parties have title to the land divided, and as against each other such tenants in common are estopped from denying the validity of the title--Picot v. Page, 26 Mo. 420; Van Horne v. Fonda, 5 J. Ch. R. 406; Rector v. Waugh, 17 Mo 13; Vasquez v. Ewing, 24 Mo. 31; 3 Dana, 326.

II. One who takes possession under a deed which makes him a tenant in common with others, cannot as against them set up an outstanding title--Braintree v. Battles, 6 Vt. 395; Phelan v. Kelly, 25 Wend. 389; Jackson v. Streeter, 5 Cow. 529; Jackson v. Hinman, 10 J. R. 292; Jones v. Stanton, 11 Mo. 433; Lee v. Fox, 6 Dana, 171; Spitts v. Wells, 18 Mo. 468; see notes to Keech v. Sandford, 1 Wh. & Tud. L. C. 65, Am. ed. 74; Margar v. Herrick, 21 Ills. 481; Page v. Webster, 8 Mich. 263. The outstanding title bought by one tenant in common enures to the benefit of all--Lloyd v. Lynch, 28 Pa. 419; Gassam v. Donaldson, 18 B. Mon. 230; Picot v. Paige, 26 Mo. 398. Consequently, the plaintiff having obtained the benefit of the partition, cannot now turn round and deny its validity in an action of ejectment, while he retains for himself all the benefits of such partition, for that would not be equitable. He holds his own share, and seeks further to procure his co-tenants' share. He blows hot and cold at the same time. The court rightly determined the equities as between the parties.

HOLMES, Judge, delivered the opinion of the court.

This was an action of ejectment for the lot No. 182 of the Carondelet commons south of the river Des Peres. The suit was commenced in the St. Louis Land Court in January, 1857; and in November, 1863, there was a trial, and judgment for the defendant. An amended answer of the defendant, filed in October, 1863, denied the unlawful entering and withholding of the premises from the plaintiff, or that he was entitled to the possession, and set up as a defence a judgment in partition in a suit which had been commenced in said court in August, 1859, returnable to the October term of that year, in which the plaintiff here was a party defendant, and filed his answer at that term on the 19th day of October, and there was a trial and final judgment of...