Hector v. Mann

• Decision Date: 02 February 1910
• Citation: 124 S.W. 1109,225 Mo. 228
• Parties: HECTOR et al. v. MANN.
• Court: Missouri Supreme Court

124 S.W. 1109

225 Mo. 228

HECTOR et al. v. MANN.

Supreme Court of Missouri.

February 2, 1910.

1. APPEAL AND ERROR (§ 173) — RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW — DEFENSES.

In a suit to recover land sold under a partition decree, where plaintiffs, one of whom was a minor and another a married woman at the time of the partition sale, did not urge these disabilities as relieving them from being bound by the sale, but the case was tried on the theory that they stood on the same ground as the other plaintiffs, who were under no disability, the decree cannot be disturbed on the ground of minority or coverture.

2. PROCESS (§ 96) — SERVICE — PUBLICATION — AFFIDAVIT.

The publication of process against nonresident individual defendants is not invalid because the affidavit of nonresidence on which the order of publication is based does not also allege that the defendants cannot be served with the ordinary process of law.

3. APPEAL AND ERROR (§ 681) — RECORD — REVIEW — AMENDMENTS.

In a suit to recover land under a partition decree, it cannot be urged on appeal that there was an amended petition filed in the partition suit which described different land and stated an essentially different cause of action where no description of the land as set out in either petition appears in the record.

4. APPEAL AND ERROR (§ 195) — OBJECTIONS BELOW — AMENDMENT OF PLEADINGS.

The objection that an amended petition stated a cause of action different from that set up in the original petition cannot be raised for the first time on appeal.

5. APPEAL AND ERROR (§ 185) — RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW — OBJECTIONS.

In a suit to recover land sold under a partition decree, it cannot be urged for the first time on appeal that the partition decree was void because the judge who presided in the suit was a brother of one of the parties and the other parties did not consent to his acting.

6. APPEAL AND ERROR (§ 911) — REVIEW — PRESUMPTIONS — DISQUALIFICATION OF JUDGE.

On appeal in a suit to recover land sold under a partition decree, a remark of a witness not in response to any question, but merely describing the partition suit that "William Riley, a brother of Judge Riley, was plaintiff," was insufficient to show that the judge who tried the partition suit and one of the parties were brothers, as the court will not presume that the Judge Riley referred to was the Judge Henry Riley who was a judge at that time in the circuit court in which the suit was tried.

7. EVIDENCE (§ 67) — PRESUMPTIONS — CONTINUANCE OF CONDITION.

Where it appears that a certain judge presided at some of the judicial steps in a partition proceeding, it will be presumed, in the absence of a showing to the contrary, that he presided throughout.

8. PARTITION (§ 106) — SALE — CONFIRMATION — RECORD.

A memorandum in a minute book in the office of the clerk of court indicating that a report of a partition sale was approved, but which has never been made into a record entry, is not a judgment of the court approving the sale.

9. PARTITION (§ 106) — CONFIRMATION OF SALE — EVIDENCE.

In a suit to recover land sold under a partition decree, a memorandum in a minute book in the office of the clerk of court indicating that a report of the partition sale was approved was not objectionable as evidence because it failed to describe the land in question, and because it showed the approval was made prior to the sale.

10. ESTOPPEL (§ 92) — SALE — CONFIRMATION — RIGHT TO ATTACK VALIDITY.

When the title of a purchaser at a judicial sale is assailed, it is sufficient if he is able to show by way of defense that the assailant elected to affirm the transaction by accepting the fruits of the sale, and where land belonging to the estate of a decedent was sold under a partition decree, and the nonresident heirs, who were made parties to the partition suit by service by publication, accepted their shares of the proceeds of the sale from the officers signing receipts, which clearly stated that the funds were the result of a partition sale of the property of the estate, they elected to treat the report of sale as approved, and were estopped to question the sale.

In Banc. Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Suit by Cynthia G. Hector and others against David Mann. From a decree for defendant, plaintiffs appeal. Affirmed.

C. G. Shepard and Sam J. Corbett, for appellants. Ward & Collins, for respondent.

LAMM, J.

This is a suit under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to try and determine title to certain real estate in Pemiscot county. The petition also states matters of equitable cognizance, and, in its omnibus form, may be considered a bill in equity to cancel and annul a certain deed in partition, remove a cloud upon plaintiffs' title, submitting conditions to be enforced in a certain contingency as the price of the decree. It is conceded that one Gowah W. Stewart was the common source of title. Dying he left a widow, Cynthia G. (who intermarried with one Hector, now dead), and three children, B. W., Watson L., and Carrie G.; the latter intermarried with one Frazier. Said widow and children are parties plaintiff. The case proceeds on the theory that B. W. Stewart has no interest; that his title as an heir of Gowah W. passed to one Riley under under unchallenged execution sales antedating the partition. Why he is a party is entirely dark.

Plaintiffs allege in their petition that they own in fee the real estate described; that it is not in possession of anyone; that defendant claims some unknown interest, title, and estate in the premises which cannot be stated unless under a certain deed executed by the sheriff of Pemiscot county in pursuance of a decree in partition, which decree ordered the sale of the described land belonging to plaintiffs; that if defendant claims through said proceedings and deed they should be held void because these plaintiffs (defendants in said partition suit) were nonresidents of the state of Missouri and were not summoned to appear or in any way notified as the law commands; that they had no knowledge of said proceedings, actual or constructive; that the circuit court of Pemiscot county had no jurisdiction over them, and to so deprive them of their property would not be due process of law; that plaintiff Watson L. Stewart at the time was a minor and the plaintiff Carrie G. Frazier a married woman. Alleging they did not knowingly receive any proceeds of the sheriff's sale in partition, but got a small sum of money, the amount of which they do not remember, from the sheriff, they allege they were not informed of the source from which said money was derived and had no knowledge of any of their lands being sold in partition. They aver themselves willing to submit to equitable terms if the proceeds paid them were derived from a partition sale and ask the court to ascertain the fact, adjudge the amount of money so received, and allow them to refund to the party or parties jointly entitled to it with interest; praying, furthermore, that the court determine their interest with those of the defendant, respectively, in the real estate, and define and adjudge the estate and interest of the parties, cancel the sheriff's deed (if it is the deed under which defendant claims), and vest out of defendant and into plaintiffs all apparent title under said deed and grant them general equitable relief. The answer denies plaintiffs' title and asserts defendant's. Alleging, furthermore, that plaintiffs were tenants in common with one William Riley (execution purchaser of B. W. Stewart's interest); that Riley sued in partition; that such steps were taken in that case that a valid judgment was rendered and the land was sold by the sheriff at a valid and regular sale; that at such sale it was knocked down to defendant on his bid of $500 and he received a sheriff's deed conveying all the right, title, and interest of plaintiffs in said land; that the bid was all the land was worth at the time of the sale, and that plaintiffs, with full knowledge of the suit and sale, received from the sheriff the amount bid, knowing it was the consideration paid by defendant; that since the date of that deed defendant has been in actual possession of the land with the knowledge, consent, and acquiescence of plaintiffs; paid the taxes and expended large sums of money since then in good faith under a claim of ownership, and made lasting and valuable improvements; that plaintiffs, knowing these things, remained silent, and retained their share of the partition money until defendant reclaimed the land from marsh and swamp and made it valuable, wherefore defendant invokes estoppel.

For another defense it is alleged that B. W. Stewart (prior to the partition) executed to defendant his promissory note for the sum of $275 drawing 8 per cent. interest, due January 1, 1897; that in consideration for such loan and to secure the same plaintiffs executed to one Shead, as trustee, a deed of trust conveying to him the land described in the petition to secure the note; that, the note coming due, said Shead, as trustee, filed an intervening petition in said partition asking to be subrogated to the rights of plaintiffs in the funds derived from the sale of the lands conveyed by the deed of trust; that such steps were taken in that case that he was subrogated to those rights as to Cynthia G. Hector, Carrie G. Frazier, and Watson L. Stewart; that the land was purchased by defendant at the partition sale on the judgment rendered in the partition suit; that he paid to the sheriff the amount of his bid, the sheriff by virtue of the terms of the order of the sale accepting in part payment the amount due on said note. On these several pleas defendant prayed the court to adjudge the title to be in him; that plaintiffs have no title whatever; that if the court found the partition sale void, etc., then, in that event, a decree go making said...