King v. Theis
| Decision Date | 03 December 1917 |
| Parties | JAMES C. KING et al., Appellants, v. HENRY THEIS |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court. -- Hon. A. H. Waller, Judge.
Affirmed.
Kenneth McC. DeWeese and Bailey & Hart for appellants.
(1) Upon the marriage of Fanny E. Cooper the devise made in item three of the will of David Cooper, was to the four children as a class, and the devise was to them and the bodily heirs of each of them, thereby entailing the real estate upon them. Long v. Timms, 107 Mo. 519; Faris v. Ewing, 183 S.W. 280; R. S. 1909, sec. 2874. (2) The survivor of the four children of David Cooper, Sallie A. King, took the whole estate as a life tenant, and upon her death the plaintiffs herein took the estate in fee simple as purchasers under their grandfather's will, and not as heirs at law of their mother, Sallie A. King. R. S. 1909, sec. 2872. (3) After the partition proceedings, the deed of trust executed by Joseph D. Cooper, the trustee's deed made under foreclosure, and the mesne conveyances thereafter made through which the defendant claims, conveyed no greater estate than that of which Joseph D. Cooper was possessed, and as he was not the surviving life tenant, and died leaving no bodily heirs, the estate conveyed by all said deeds terminated with his death, and his share passed under the will. (4) Plaintiffs could maintain no action until after the death of Sallie A. King. (5) A judgment in ejectment is not res adjudicata, and persons who were not parties or privies to a cause of action are not bound by a judgment rendered therein. Crowl v. Crowl, 195 Mo. 338. (6) A judgment not based upon a sufficient record, to which it must be responsive, is coram non judice, and void. Charles v White, 214 Mo. 187. (7) Sec. 2092, R. S. 1889, was repealed in 1897. The suit of Louis L. Lynn against these plaintiffs and others was brought in 1900, and the judgment and proceedings in said case, which was brought under said section are void. Merriwether v. Love, 167 Mo. 514; Hudson v. Wright, 204 Mo. 412. (8) The Statute of Limitations, and the doctrine of adverse possession, as defense, must be pleaded in all cases except ejectment, and this for the eminent reason that a judgment is res judicata in all matters save ejectment. Johnson v. Ragan, 265 Mo. 420, 447; Stevenson v. Smith, 189 Mo. 466. Possession during a life tenancy cannot be adverse to the remainderman, who is not entitled to possession until the termination of the life estate.
J. H Denny and Roy D. Williams for respondent.
(1) Joseph Cooper died January 1, 1899, leaving no wife or children. The land then, under the statute or under the will -- it is immaterial which -- vested in his surviving sisters, Eliza Woods and Sallie King. The land at this time was in the open, notorious and adverse possession of Lynn and has remained so in him and his grantees ever since. Dyer King, the husband of Sallie King, died December 25, 1904. Eliza Woods died February 9, 1908. This suit was begun March 28, 1914. Therefore, Sallie King had only ten years from the time of the adverse possession, provided she were free from disability, in which to assert her right to the possession of said land. Said land, therefore, is vested in defendant by virtue of the Statute of Limitations. Sec. 1881, R. S. 1909; Rutter v. Corrothers, 223 Mo. 648; Gray v. Yates, 67 Mo. 601; Bird v. Sellers, 113 Mo. 580. Likewise all claims to the interest of Eliza Woods were barred in three years after her death. She died February 9, 1908. Sec. 1883. R. S. 1909; DeHatre v. Edmonds, 200 Mo. 246; Rutter v. Corrothers, 223 Mo. 648; McKee v. Downing, 224 Mo. 132. (2) The devise was not a joint one to the children of David Cooper as a class and to the survivor for life, and to the heirs of the body of such survivor. Charles v. White, 214 Mo. 196; Peterson v. Jackson, 63 N.E. 643; Sec. 2878, R. S. 1909. Under the Statute de donis, upon the death of Joseph Cooper without leaving heirs of his body, this land would revert to the estate of the testator, and the title would vest in his two surviving daughters, Sallie A. King and Eliza J. Woods. 16 Cyc. 608; Peterson v. Jackson, 63 N.E. 645; Lewis v. Barnhart, 43 F. 864. The same result would follow under the statute of 1855 abolishing estates tail. Clarkson v. Clarkson, 125 Mo. 381; Brown v. Rogers, 125 Mo. 392; Clarkson v. Botten, 143 Mo. 47. (3) The division of the land by commissioners appointed by the circuit court in the partition suit, in which the persons then interested were made parties, is binding upon the remaindermen, and those who might take the estate under the will upon the death of Joseph Cooper. The land was held in severalty by the devisees after this partition suit. Accord v. Beatty, 244 Mo. 226; Stockwell v. Stockwell, 262 Mo. 682. (4) The plaintiffs in the present suit were all parties to the partition suit in 1878 and are bound by the judgment of the court rendered in that case. Sparks v. Clay, 185 Mo. 393; Reindeers v. Koppelman, 68 Mo. 482; Hart v. Stedman, 98 Mo. 452; Porter v. Davis, 38 Mo. 113; Ketchum v. Christian, 128 Mo. 42; Real Estate Co. v. Lindell, 142 Mo. 83; Secs. 25 and 34, chap. 104, Wagner Stat. 1872. (5) The judgment is partition estops the parties to the suit from setting up any adverse claim afterwards. And this applies to married women the same as to other persons. Ketchum v. Christian, 128 Mo. 43; Truesdail v. McCormack, 126 Mo. 39. (6) A judgment against an infant is binding, however irregular the proceedings, until set aside on appeal or by a direct proceeding for that purpose. Castleman v. Perry, 50 Mo. 583; Shields v. Powers, 29 Mo. 315; Hite v. Thompson, 18 Mo. 461; Shaw v. Gregoire, 35 Mo. 342; Freeman on Co-tenancy & Partition (2 Ed.), p. 626. The guardian ad litem of an infant is clothed with full powers of his ward after removal of disabilities. LeBurgoise v. McNamara, 82 Mo. 189. (7) The plaintiffs are estopped by their answer in the suit to quiet title, in which they not only disclaimed any right, title or interest in this land in themselves, but further, that the title was in their mother, Sallie A. King, and their aunt, Eliza J. Woods, in fee simple. Michalski v. Grace, 151 Mo.App. 631; 16 Cyc. 795, 797; Bensieck v. Cook, 110 Mo. 182. (8) The plea of limitation is admissible under a general denial. Johnson v. Calvert, 169 S.W. 81; Johnson v. Calvert, 260 Mo. 280; Stoeker v. Green, 94 Mo. 280; Coleman v. Drone, 116 Mo. 391; Bledsoe v. Sims, 53 Mo. 307; Campbell v. Light Co., 84 Mo. 352; Nelson v. Braddock, 44 Mo. 601; Stevenson v. Smith, 189 Mo. 447; Fairbanks v. Long, 91 Mo. 628; Pattison's Code Pldg. (2 Ed.), sec. 684.
I. This is an action in two counts, one for an ejectment and the other to try title. The subject of the suit is twenty-six acres of land lying in Howard County, which were a part of the farm of David Cooper, who died in 1869, leaving four children, to whom he devised the land in question by the following clause of his will:
The four children mentioned in this clause of the will died respectively in 1897, 1899, 1908 and 1912, none of them leaving any issue except Sallie A. King, who left six children, the plaintiffs in the present suit.
In April, 1878, three of the devisees mentioned in the above clause of the will brought an action against the other devisee, Sallie King, and her husband and children (the present plaintiffs), to partition the land of which their father died seized, including the twenty-six acres in controversy. Partition was prayed according to the provisions of the will. The present plaintiffs (then minors) were made defendants and were represented by a guardian ad litem, a decree in partition was granted, and the land divided into four parcels, numbered 1, 2, 3 and 4, and allotted in severalty to each of the four children of David Cooper.
Thereafter Joseph D. Cooper, executed a trust deed to secure a note for $ 500, in favor of L. L. Lynn, on forty acres allotted to him by the decree in partition and which includes the twenty-six acres in controversy.
The defendant of the present action claims by mesne conveyances from L. L. Lynn, to whom the land was conveyed by the trustee under the foreclosure of said trust deed.
In June, 1900, L. L. Lynn, in virtue of his purchase of said land, brought a suit under section 2092, Revised Statutes 1889, making all of the present plaintiffs parties, and they were duly served with process, but after taking legal advice, declined to appear in said action. But the attorney who represented other defendants, also filed an answer on behalf of the present plaintiffs, wherein they disclaimed any interest in the land. In that case the prayer of the petition filed by L. L. Lynn was granted. On the trial of the present suit defendant relied on these prior suits as creating an estoppel, the Statute of Limitations, and his paper title.
A judgment was rendered in his favor, from which plaintiffs have duly appealed.
II. The true intent and meaning of the will of David Cooper was first, to devise an estate for life or until her marriage to Fannie E. Cooper in the entire farm; second, in the event of her marriage, to devise the entire farm to her and his three other children as tenants in...
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