Gray v. Clement

• Decision Date: 30 December 1920
• Parties: MARY GRAY, MINNIE ARTEL, ADELE JOYCE, FRANCES TOHER and FRANK F. BROKEL, by His Next Friend, ROSE BROKEL, Appellants, v. MICHAEL CLEMENT, FRANCES CLEMENT and EMMA REIDMEYER
• Court: Missouri Supreme Court

227 S.W. 111

286 Mo. 100

MARY GRAY, MINNIE ARTEL, ADELE JOYCE, FRANCES TOHER and FRANK F. BROKEL, by His Next Friend, ROSE BROKEL, Appellants, v. MICHAEL CLEMENT, FRANCES CLEMENT and EMMA REIDMEYER

Supreme Court of Missouri, Second Division

December 30, 1920

Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.

Reversed and remanded.

T. J Rowe and T. J. Rowe, Jr., for appellants.

(1) The circuit court had no jurisdiction to render a judgment in partition in the case of Josephine Brokel and Frank Brokel v Mary Brokel et al., because the petition showed on its face that Josephine Brokel had an estate for life in said property, and under the statute a life tenant cannot maintain partition against those having the estate in remainder. Sec. 3339, R. S. 1879, now Sec. 2559, R. S. 1909; Stockwell v. Stockwell, 262 Mo. 671. (2) Though a court may possess jurisdiction of the subject-matter and of the parties, it is still limited in its modes of procedure and in the character and extent of its judgments. It must act judicially in all things and cannot then transcend the power conferred by law. Windsor v. McVeigh, 93 U.S. 294; State ex rel. v. Muench, 217 Mo. 137; Reynolds v. Stockton, 140 U.S. 254; Andrew Stephens' Pleadings (2 Ed.), p. 34. (3) The common source of title to real estate described in the petition was Francois Giraldin; the defendants Michael Clement and Frances Clement acquired by mense conveyances an estate in the property during the life of Josephine Brokel and at the death of Josephine Brokel their estate terminated and the plaintiffs and Emma Reidmeyer after the death of Josephine Brokel had an estate in fee simple in said real estate. (4) Upon the allegations of the petition in the case of Josephine Brokel et al. v. Mary Brokel et al., the circuit court should have dismissed the proceedings because the petition showed on its face that no judgment or decree in partition could be rendered in the case. Throckmorton v. Pense, 126 Mo. 58.

Marion C. Early for respondents.

(1) A judgment in partition in a suit brought solely by the life tenant as plaintiff against the remaindermen as defendants, though erroneous, is not void; and a purchaser at a sale under such a decree has a title that cannot be attacked collaterally. Cromwell v. Hull, 97 N.Y. 209; Reed v. Reed, 107 N.Y. 545; Harrison v. Higgins, 218 N.Y. 556. (2) When the court has cognizance of the class of cases to which the one adjudged belongs, and of the parties, and when the point decided is within the issues, the point decided, though erroneously, is res adjudicata, and cannot be attacked collaterally. Hagerman v. Sutton, 91 Mo. 519; Rivard v. Railroad, 257 Mo. 135; Jaco v. Railroad, 94 Mo.App. 567; Winningham v. Trueblood, 149 Mo. 580; Chrisman v. Divinia, 141 Mo. 122; King v. Theis, 272 Mo. 416; Cochran v. Thomas, 131 Mo. 258; Sparks v. Clay, 185 Mo. 393, as construed in Stockwell v. Stockwell, 262 Mo. 671. (3) If the owner of an interest in property receives as such the proceeds of the sale of that property under a judicial sale, then, even though the judicial proceeding be void, such owner cannot assert his title against the purchaser at such sale. Hector v. Mann, 225 Mo. 228; Pockman v. Meatt, 49 Mo. 345; Proctor v. Nance, 220 Mo. 104; Cape Railroad v. Southern Bridge Co., 215 Mo. 286. (4) What the guardian ad litem in a partition suit does in that case on behalf of the minor is as binding on the latter as if it had been done by him after his disabilities were removed. R. S. 1909, sec. 2566, 2567; LeBourgeois v. McNamara, 82 Mo. 189; Payne v. Masek, 114 Mo. 631. (5) When one knowingly, though he does it passively by looking on, suffers another, under an erroneous opinion as to his title, to expend money on that land, he shall not afterwards be permitted to enforce his legal title. Wendell v. Van Renselaer, 1 Johns Ch. 244; Withers v. Railroad, 226 Mo. 373; Guffey v. O'Reily, 88 Mo. 418; Palmer v. Welch, 171 Mo.App. 580.

WHITE, C. Railey and Mozley, CC., concur.

OPINION

WHITE, C.

This suit, under Section 2535, Revised Statutes 1909, is to determine title to certain land in the City of Saint Louis. There was judgment for the defendants, and plaintiffs appealed. The common source of title was Francois Giraldin who died in 1878. The plaintiffs claimed under his will. The defendants claimed under a sale made in pursuance of a decree of partition, wherein the devisees of Francois Giraldin were parties.

The will of Giraldin, filed and probated December 26, 1878, in the Probate Court of the City of Saint Louis, devised to Josephine Brokel, his only living child, the wife of Francis Brokel, all the revenue and income out of the land in controversy for her natural life, and directed that after her death the property should be divided equally among her children or their descendants. In 1880 Josephine Brokel and Francis Brokel, her husband, instituted a partition proceeding in the Circuit Court of the City of Saint Louis, against their children Mary Brokel, now the plaintiff Mary Gray; Emma Brokel, now the defendant Emma Reidmeyer; Josephine Brokel, now the plaintiff Minnie Artel; Joseph Brokel, now deceased; and Adele Brokel, now plaintiff Adele Joyce.

Due service was had on defendants; then in regular order followed a decree of partition, order of sale, appointment of special commissioner to make the sale, property sold on June 28, 1880, when Frank Brokel became the purchaser for $ 400. The special commissioner made report of the sale, which was approved by the court, and a deed executed accordingly on the 13th day of July, 1880, conveying the property to Frank Brokel. All the parties to that proceeding are parties here except Joseph Brokel, deceased. One of the plaintiffs, Frances Toher, was not born at that time, she having been born to Josephine Brokel after the death of Francois Giraldin. Plaintiff Frank F. Brokel, a minor, at the institution of this suit, was the only surviving son of Joseph Brokel, deceased.

The defendants Michael Clement and Frances Clement derived their title by mesne conveyance from Frank and Josephine Brokel. If the said partition proceeding was regular and effective to pass any title to Frank Brokel, then Frank Brokel acquired title to all the premises because all the parties mentioned in the will in connection with the tract of land were made parties to that proceeding. At the time of the partition proceeding, however, all the plaintiffs herein then living were minors; Mary Gray, the eldest, being sixteen years of age; Minnie Artel, eight years of age; Adele Joyce, five years of age; Frances Toher, not yet born; and Emma Reidmeyer, defendant here, was thirteen years of age.

Josephine Brokel died in September, 1917, leaving as her only children the plaintiffs, and defendant Emma Reidmeyer.

The petition in that partition proceeding, which was introduced in evidence here, sets out the provisions of the will above mentioned and the relationship of the parties, Josephine Brokel being the mother of the minor defendants, then alleges:

"That the parties hereto have title to said land, as follows:

"Said Josephine Brokel (one of the plaintiffs) is entitled to a life estate in said land; said Frank Brokel to his right by curtesy in said land.

"That the said defendants' respective interests in said lands are as follows: The said Mary, Emma, Josephine, Joseph and Adele Brokel are each entitled under said will to a one-fifth interest in fee in said land subject to the life estate of the plaintiff, Josephine Brokel, and the right by the curtesy of said Frank Brokel, and also subject to the rights of any and all children of said Josephine Brokel (plaintiff) that may be yet unborn."

The judgment of the Circuit Court of the City of Saint Louis in that case, rendered May 26, 1880, after reciting the appearances of the parties and giving a description of the land, continues:

"And the court doth further ascertain and determine the respective rights and interests of said parties in said real estate to be as follows, to-wit:

"That the plaintiff, Josephine Brokel, is entitled to a life estate in said real estate, and that the defendants are each entitled to an undivided one-fifth interest in fee in said land, subject to the life estate of their mother, the said plaintiff Josephine Brokel, and also subject to the rights of any and all children of said plaintiff, Josephine Brokel, that may be yet unborn.

"It is therefore ordered, adjudged and decreed by the court that partition of said real estate be made among the owners thereof according to their respective rights and interests as hereinbefore ascertained and determined."

The court then found that from the nature and amount of the property it could not be divided in kind without great prejudice to the owners, ordered that the property be sold, and appointed Jephtha H. Simpson, special commissioner "to sell said property and compute the present value of the life estate to the said plaintiff, Josephine Brokel, in the proceeds of said sale, and to make report thereon to this court according to law." The report was duly made and a deed conveying the property to Frank Brokel was duly executed by Simpson, as stated. The deed recited the judgment and the proceedings of the court as stated.

The record of the court further showed that one H. M. Wilcox was appointed guardian ad litem for the defendant minors in said proceeding, and filed answer for them.

On July 9, 1880, after the report of the sale by the commissioner was approved, H. M. Wilcox, as guardian ad litem for the minors, and Simpson, the special commissioner, signed and presented to the court a petition setting forth that the special commissioner, after paying all the costs attorneys' fees, and...