Hite v. Thompson

• Decision Date: 31 October 1853
• Citation: 18 Mo. 461
• Parties: HITE & WIFE, Plaintiffs in Error, v. THOMPSON et al., Defendants in Error.
• Court: Missouri Supreme Court

18 Mo. 461

HITE & WIFE, Plaintiffs in Error,

v.THOMPSON et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1853.

1. Under the act of 1825, concerning partition, no notice by publication to non-resident minor defendants was necessary, where the court appointed a guardian ad litem who appeared and answered the plaintiff's petition.

2. Under that act, the guardian ad litem had power to consent to a private, instead of a public sale.

Error to Marion Circuit Court.

This was an action in the nature of ejectment, brought by James J. Hite and Harriet Jane, his wife, to recover the undivided half of a lot in the town of Palmyra. The plaintiffs claim title under Harrison Marders, who died in 1833, holding the lot as tenant in common with Abijah C. Abernathy. The plaintiff, Harriet Jane, was the daughter, and, at the time this was brought, sole surviving heir of Marders.

The defendants claim title under a partition sale made in 1834, under the act of 1825, in a proceeding begun by Abijah C. Abernathy against the plaintiff, Harriet Jane (then Marders) and her brother James A. Marders.

At the trial, the defendants offered in evidence the record of the proceedings in the partition suit, to the admission of which, the plaintiffs excepted. The record showed the following proceedings: A petition was filed by Abernathy, December, 30, 1833, praying for the appointment of commissioners to make partition. The petitioner stated that he was the legal guardian of Harriet Jane and James A. Marders, who were minors, but being interested, he prayed the court to appoint a guardian ad litem to represent them as to the matters in the petition. On the 19th of February, 1834, the court made an order appointing a guardian ad litem for the defendants. On the 26th of February, the guardian ad litem filed his answer confessing the petition. On the same day, the court made an order appointing commissioners to make partition. On the 20th of June, the commissioners reported that the lot could not be divided, and the court thereupon ordered that the same be sold, “by consent of parties, at private sale, for a sum not less than three hundred dollars.” On the 22d of October, 1834, the commissioners reported that they had sold the lot to Henry Wilcox for $350, and the court thereupon confirmed the sale. On the 23d of June, 1834, the commissioners executed a deed to Wilcox.

The defendants showed a regular title from Wilcox. It did not appear that Harriet J. and James A. Marders had any notice of the proceedings in partition. It was admitted that they removed from Missouri in October, 1833, and took up their residence in Kentucky, where James A. shortly afterwards died without issue.

Upon the refusal of the court to instruct the jury that the proceedings in partition did not divest the title of the heir, the plaintiffs, submitted to anon-suit.

Lamb and Dryden, for plaintiffs in error.

By the act of 1825, notice to non-resident defendants, either by publication or by personal service, was necessary. (R. C. 1825, tit. Partition, § 1.)

I. Notice was necessary to give the court jurisdiction, (11 Wend. 647; 4 Monroe, 545,) and must be shown by the record. (Peake v. Redd, 14 Mo. 83.) There being no notice, the partition sale was a nullity, and is to be so regarded, even in a collateral proceeding.

II. The act of 1825, authorizing the sale of land in partition, is in derogation of the common law, and must be construed strictly. On this principle, the sale could only take place in the manner pointed out by the act, and a private sale did not divest the title of the heir. (20 Wend. 249.)

III. The deed from the commissioners to Wilcox was void, because executed before the report and confirmation of the sale and before there was any order to convey. The fourth section of the act makes the report, the confirmation and the order of conveyance, all conditions precedent to the execution of the deed. These acts are all necessary to the validity of the deed. The deed being void, when executed, no subsequent confirmation of the sale could make it valid.

Pratt & Redd, for defendants in error.

I. Partition is a proceeding in rem. The court had jurisdiction of the subject matter, and its judgment and proceedings cannot be questioned in a collateral proceeding. (6 Peters, 729-30; 1 Peters, 340; 2 Peters, 169; 11 Mass. 226-7; 11 Serg. & Raw. 427-8.)

II. The court had jurisdiction of the parties. The manner of acquiring jurisdiction, under the act of 1825, is by publication or the service of notice on a minor defendant (whether resident or non-resident) or on his guardian. Section 1. The court had power to appoint a guardian for the purposes of partition. Sec. 7. The acts of the guardian are as binding on the ward as if done by himself after arriving at full age. Sec. 7. Among the acts which the guardian may do, is the appearing and answering for the ward, which confers jurisdiction as fully as the service of notice could do. In this case, the general guardian was before the court, and out of abundant caution, a guardian adlitem was appointed, who appeared and answered.

III. However erroneous the proceedings may have been, the error ca only be taken advantage of in a direct proceeding.

RYLAND, Judge, delivered the opinion of the court.

1. The only questions...