Hector v. Mann
| Decision Date | 02 February 1910 |
| Citation | 124 S.W. 1109,225 Mo. 228 |
| Parties | CYNTHIA G. HECTOR, B. W. STEWART, CARRIE G. FRAZIER and WATSON L. STEWART, Appellants, v. DAVID MANN |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Henry C. Riley, Judge.
Affirmed.
Shepard & Shepard and McKay & Corbett for appellants.
Ward & Collins and T. J. Brown for respondent.
OPINION
In Banc
This is a suit under section 650 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 plaintiff's 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; his title as an heir of Gowah W. passed to one Riley 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 non-residents 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 and that 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; has 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; 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 deed of trust in full force and effect, a lien on the land; that it be sold under such decree foreclosing the deed of trust; that the proceeds be applied to the payment of the debt evidenced by the note and for such other and further relief as seems meet and proper.
The reply denied the new matter in the answer.
On issues thus outlined the chancellor found for defendant, decreeing him to be the owner of the land and that plaintiffs have no title. From that decree all the plaintiffs prosecute their appeal.
As said, Gowah W. Stewart was admitted to be the common source of title. The relationship of the plaintiffs severally to him as hereinbefore set forth was shown and that he died in 1879, leaving plaintiffs his only heirs.
Cynthia G. Hector testified by deposition that she was never summoned or in any other way notified in the partition suit; that she had no knowledge of such proceedings until two years after the sale; that, living then in Arkansas, she employed attorneys there to look after her land, and for the first time ascertained through them that parties were claiming through partition proceedings the land descended to plaintiffs from Gowah W. Stewart. Those attorneys were instructed to bring a suit to recover the land. Witness stated she "never knowingly received one cent from the sale of any of the land." She admitted plaintiffs received "a small amount of money from the sheriff of Pemiscot county, Missouri, at one time" -- the exact amount not remembered. It was very small and witness supposed it to be "the balance due from the estate of Gowah W. Stewart there being something said about this being the amount due me after paying Mann Brothers." (Note: It seems the note hereinbefore referred to was payable to Mann Brothers.) In relation to the deed of trust mentioned in defendant's answer, she said it was executed to secure B. W. Stewart's note; that when the sheriff transmitted the money to them, that note was long past due and that plaintiffs understood it to be the balance due them out of the sale under that deed of trust and "had no idea that the money received" was from the sale of the lands in partition.
The deposition of Watson L. Stewart was read by plaintiffs. At the time of testifying he was twenty-seven years old. His testimony was to the same effect as that of his mother, Mrs. Hector.
To the same effect was another deposition read by plaintiff, to-wit, that of Carrie G. Frazier. Speaking of the money received of the sheriff, she said she "understood it to be money received in some way from the estate of my father, probably from some land sold on account of a mortgage given to David Mann or Mann Brothers."
Such was the testimony of plaintiffs in chief.
To sustain his title, defendant offered his original deed in partition from McFarland, sheriff, dated February 21 1898, conveying the land to David and Fred Mann. This offer was objected to "for the reason that judgment in partition proceedings on which said deed is based is void for the reason that the court rendering such judgment had no jurisdiction of the parties defendant in such suit; and for the further reason that said deed purports to convey only the interest of Cynthia G. Hector and not the interest of any of the other parties in this cause." The objection was overruled, the deed admitted and plaintiffs saved the point. As the deed sustained the averments of the answer in that regard (including the payment of $ 500 bid at the sheriff's sale), it will not be necessary to cumber the opinion by setting it forth.
Defendant next offered an amended deed bearing date during trial of the pending suit and executed by McFarland, ex-sheriff. In the narrations of the original deed the parties to the partition proceedings were set forth as "William Riley, petitioner against Cynthia G. Hector et al., defendants" -- the names of the defendants not otherwise...
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