Holton v. Towner

• Decision Date: 30 April 1884
• Citation: 81 Mo. 360
• Parties: HOLTON et al. v. TOWNER et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

81 Mo. 360

HOLTON et al.

v.TOWNER et al., Plaintiffs in Error.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Linn Circuit Court.--HON. S. P. HUSTON, Special Judge.

REVERSED.

A. W. Mullins for plaintiffs in error.

The court erred in admitting in evidence the deed of John S. G. Burt from William W. Gitt; said deed was not the act and deed of Joseph Jay by Gitt, as attorney in fact, but it is the deed of Gitt. Story on Agency, (5 Ed.) 148, and note; Endsley v. Strock, 50 Mo. 508; Bobb v. Barnum, 59 Mo. 394. The application for and appointment of Frank L. Binford next friend to Thomas J. Holton during the progress of the trial, were irregular and unauthorized by law. The sheriff's deed to defendant Towner, and the judgment offered in connection therewith, should have been admitted in evidence. The deed is formal, and the judgment recited in it, although some of the defendants were married women, was not void. The judgment may have been erroneous and reversible for error, but unless it was absolutely void, the sale of the land under it and its purchase by Towner and the sheriff's deed vested in him the title as against the judgment defendants. Hoskinson v. Adkins, 77 Mo. 537; Lenox v. Clarke, 52 Mo. 115. The judgment against Thomas J. Holton, Jr., although a minor, and no guardian was appointed, was not void. Jeffries v. Robideaux, 3 Mo. 33; Fulbright v. Cannefax, 30 Mo. 435; Gott v. Powell, 41 Mo. 416; Townsend v. Cox, 45 Mo. 401. Plaintiffs' possession was insufficient to authorize a recovery. Bledsoe v. Simms, 53 Mo. 305; Dunn v. Miller, 75 Mo. 260; Crockett v. Morrison, 11 Mo. 3.

C. L. Dobson for defendants in error.

The infant plaintiff, Thos. J. Holton, Jr., having recovered judgment in the court below, no advantage can be taken of his having appeared by attorney in seeking the appointment of a next friend. 2 Wag. Stat., § 19, p. 1036; R. S., § 3582; Robinson v. Hood, 67 Mo. 660. Besides, the disability of infancy is now removed. He is of full age and appearing by attorney in this court. He is now twenty-three years old. The evidence tended to prove prior possession in the plaintiffs, and the finding of the court below, under the instructions given, was a finding of that question of fact in plaintiffs' favor, and is not subject to review in this court on that point.

The evidence offered by defendant shows that plaintiffs and defendants claim under the same source of title, and, therefore, the only question presented to this court is the correctness of the ruling of the court below in excluding the sheriff's deed and judgment offered by defendants. This deed and judgment were treated by the circuit court as nullities, because they showed upon their face that the defendants in error, Susan M. Walker, Maria M. Clark and Julia M. Fisher, were all married women at the time of the rendition of the judgment. The evidence of James W. Walker, read by plaintiffs, proved the same thing. For this reason the judgment and deed are nullities. Corregan v. Bell, 73 Mo. 53; Hargadine v. Van Horn, 72 Mo. 370; Robinson v. Hood, 67 Mo. 660; Jackson v. Bowles, 67 Mo. 609; Weil v. Simmons, 66 Mo. 617; Gage v. Gates, 62 Mo. 412; Wernicke v. Wood, 58 Mo. 352; Lincoln v. Rowe, 64 Mo. 138; Higgins v. Peltzer, 49 Mo. 152; Covenant Ins. Co. v. Clover, 36 Mo. 392. A judgment at law against a married woman, is not an irregularity. Jones v. Hart, 60 Mo. 356; Tidd's Prac., 512, 513. It is absolutely void. Fithian v. Monks, 43 Mo, 502, and authorities cited. The judgment being void as to the married women who were sued, it is void as to all. The judgment is an entirety. Covenant Ins. Co. v. Clover, 36 Mo. 392; Freeman on Judg., § 136; Hulett v. Nugent, 71 Mo. 131; Green v. St. Clair, 52 Mo. 327; Smith v. Rollins, 25 Mo. 411; Rush v. Rush, 19 Mo. 441. A judgment erroneous as to one or more defendants, and not as to others, cannot be reversed in part and affirmed in part. It must be reversed or affirmed as to all. By what rule can a judgment absolutely void as to three defendants, be held valid as to one or more others? The judgment offered in evidence by defendants, and recited in the sheriff's deed, was against the three married daughters of Thomas J. Holton, deceased--Mrs. Walker, Mrs. Clark and Mrs. Fisher--his widow, Sabina B. Holton, and one Elijah H. Holton. The two latter are not parties to this suit. Elijah H. Holton does not appear to have had any interest in the land in controversy. So the only persons in any wise interested in the land against whom the court had any power to render a judgment at law, under any circumstances, were the widow, Sabina B. Holton, and the minor, Thos. J. Holton, Jr. But the dower interest of the widow in the real estate in controversy, being unassigned, was not subject to levy and sale either under attachment or execution.

HOUGH, C. J.

This is an action of ejectment to recover the possession of the northwest quarter of the southwest quarter, and the south half of the southwest quarter of section 2, township 57, range 18, in Linn county. The petition is in the usual form. The answer contains, first a general denial, second, an allegation that one of the plaintiffs, Thos. J. Holton, is a minor, under the age of twenty-one years, and has no legal capacity to sue; and third, that the defendant, Towner, had acquired, by sheriff's deed, the plaintiffs' title to the land in question.

The plaintiffs introduced in evidence a patent from the United States to Joseph Jay for the land in question, and sundry mesne conveyances, through which they attempted to establish title in Joseph J. Holton, who died in 1859, leaving the plaintiffs, with the exception of the husbands of the female plaintiffs, as his heirs at law. It appears from the testimony, that in 1859, Thomas J. Holton rented the land to one Cash; that in 1867 one of the plaintiffs erected a house on the land which was rented for the plaintiffs by an agent until 1871 or 1872, when one Love took possession, claiming under some pretended title. It further appears that Love was put out of possession in 1875 or 1876 by the plaintiffs through some proceeding instituted by them to recover the possession, and that no one occupied the land thereafter until Towner, the defendant, took possession. He put a tenant in the house, and fenced a large part of the land. The precise date, when Towner went in, is not shown. This suit was instituted in October, 1877; the ouster of the plaintiffs is laid in June, 1877, and the defendants were shown to have been in possession at the institution of the suit. It also appears that Thomas J. Holton paid taxes on the land from 1846 or 1847, until his death in 1859, and thereafter, and up to the time of trial, the plaintiffs paid taxes. The defendants offered in evidence a deed from the sheriff of Linn county to the defendant, Towner, for the land in question which was dated on June 7th, 1877, and recites that, “on the 13th day of December, 1876, judgment was rendered in the circuit court of Linn county and State of Missouri, in favor of John Nutter and against Sabina B. Holton, Elijah H. Holton, J. W. Walker and Susan M. Walker, his wife, Martha M. Clark and A. D. Clark, her husband, Thomas J. Holton, Julia M. Fisher and Robert J. Fisher, her husband, for $124.10 for debt” and for costs; that an execution was issued on said judgment, March 3rd, 1877, which was levied by the sheriff on the land in question, March 10th, 1877, and at the June term, 1877, of the circuit court of Linn county, under and in pursuance of said execution and levy, and notice of sale duly given, the said land was sold by the sheriff and the defendant, Towner, was the purchaser at and for the price and sum of $75.00.

The following judgment, in said deed recited, was also offered in evidence. “John Nutter, plaintiff, against Sabina B. Holton, Elijah H. Holton, J. W. Walker and Susan Walker, his wife, Martha M. Clark and A. D. S. Clark, her husband, and Thomas J. Holton, Julia M. Fisher and Robert J. Fisher, her husband, defendants.

Now at this day comes the plaintiff by his attorney, and the defendants, although summoned by publication in all things according to law, an interlocutory judgment having been rendered herein at the last term of the court, and the defendants still failing to appear, and the suit of the plaintiff being founded upon an instrument of writing and the amount of plaintiff's demand ascertained by said instrument, the court doth...