Gott v. Powell

• Decision Date: 31 October 1867
• Citation: 41 Mo. 416
• Parties: EDWARD C. GOTT, Plaintiff in Error, v. WILLIAM L. POWELL and JEPTHA V. BOONE, Defendants in Error.
• Court: Missouri Supreme Court

41 Mo. 416

EDWARD C. GOTT, Plaintiff in Error,

v.WILLIAM L. POWELL and JEPTHA V. BOONE, Defendants in Error.

Supreme Court of Missouri.

October Term, 1867.

Error to Montgomery Circuit Court.

Hoy & Buckner, for plaintiff in error.

J. B. Henderson & D. R. Dyer, for defendant in error.

I. There was no error in the judgment of the court upon the facts agreed on. The petition is for partition as a tenant in common with William L. Powell, and for possession of the land against Boone. The action is to obtain partition between himself and William C. Powell, who holds adversely to him, and had so held for fifteen years before the commencement of this suit--Lambert v. Blumenthal, 26 Mo. 471.

II. If the action be regarded as ejectment and partition, then it cannot be maintained, for such actions cannot be joined--26 Mo. 471.

III. Although these points are regarded as conclusive of plaintiff's case, it is further urged that Gott could acquire no title under the judgment and execution against Powell. So far as he is concerned the judgment was void; but whether void or voidable, he cannot claim to be an innocent purchaser. It was his duty to see that a guardian ad litem should have been appointed by the court after the return of the writ, and failing to do so, with full knowledge of the minority of Powell, and afterwards purchasing with knowledge that he was still a minor, so far from being an innocent purchaser, he stands before the court as taking advantage of his own wrong and seeking to divest the infant of his estate. With knowledge of the error in the proceedings; he acquired no title--Luke v. Marshall, 5 J. J. Marsh. 353.

IV. The judgment being afterwards set aside by proceedings in which Gott was a party, the execution and sale, at least so far as he is concerned, must fall. All parties to proceedings which result in setting aside a judgment will be precluded from claiming any rights acquired under the judgment; otherwise nothing could be gained by such proceedings, and courts should not entertain them--12 Barb. 84; McTilton v. Love, 13 Ills. 486; Hubbell v. Broadwell's Adm'r, 8 Ohio, 120; Dater v. Troy Turnp. & R. R. Co., 2 Hill, 629; Kennedy v. Dunckle, 1 Gray, 167; 1 Har. J. 405; Wells v. Stout, 9 Cal. 498; Simonds v. Catlin, 2 Caines, 61; McLajen v. Brown et al., 11 Ills. 523; Winston v. Ortley, 25 Miss. 456; Goodyear v. Ince, 2 Cro. 246; 2 Binn. 85; 2 Sand. 101-2; 3 Bacon's Abr. 120-1; 2 Phil. Ev. 139, n. 293; 8 Wend. 36; 20 Ills. 276.

WAGNER, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff against the defendant Powell and one Boone, for partition and in ejectment of a tract of land. The petition prayed for partition as to Powell and possession as to Boone. A demurrer was filed to the petition, but no decision was rendered on it by the court, and the parties while the demurrer was still pending and undecided proceeded to trial on an agreed statement of facts.

From the facts as agreed upon it appears that the plaintiff in this case sued one James W. Powell, brother of the defendant here, in the Montgomery Circuit Court, in an action of trespass, and at the April term, 1841, obtained a judgment against him for one hundred dollars and his costs of suit. At the time of obtaining the judgment, James W. was an infant not over seventeen years of age. The defendant appeared to the action only by attorney, no general guardian or guardian ad litem having been appointed for him, and the question of minority was not brought to the attention of the court. In May, 1841, Gott caused an execution to be issued on his judgment against the defendant, and proceeded to sell all the right, title and interest of the said land in controversy, in October, 1841. At the sale Gott became the purchaser of the land for thirty-three dollars. Gott was acquainted with the defendant, and knew at the time of the commencement of the suit, and at the time of the sale by the sheriff, that he was under 21 years of age. Before the land was sold, and on the same day in the presence and hearing of Gott and others at the sale, it was publicly announced by John, a brother of the defendant, and by others, that the judgment under which the land was about to be sold had been rendered against the defendant while he was an infant and that he was still an infant; that he had not been defended by guardian and the judgment was void, and that the sale would pass no title. James W. and William L. Powell, who owned the other half of the tract of land, it being 160 acres, together with their mother and her family, remained on the land, claiming the same as their own, until a short time after James arrived at age, when he sold his interest to Thomas J. Powell for four hundred dollars; after which Thomas J. and Wm. L. Powell and the family remained on the land claiming it as the land of Thomas J. and Wm. L. In 1847 a motion was made in the Circuit Court of Montgomery county by James W. Powell to set aside the judgment rendered against him in 1841, in favor of the plaintiff Gott, which being overruled in the Circuit Court, was appealed to the Supreme Court, and this court revers...