Lillibridge v. Ross

• Decision Date: 28 February 1875
• Citation: 59 Mo. 217
• Parties: ISAAC LILLIBRIDGE, Respondent, v. JOHN A. ROSS, et al., Appellants.
• Court: Missouri Supreme Court

59 Mo. 217

ISAAC LILLIBRIDGE, Respondent,

v.JOHN A. ROSS, et al., Appellants.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Andrew Circuit Court.

Heren & Rea, for Appellants.

I. The case of Peak vs. Laughlin, (49 Mo., 162.) is a case directly in point and settles this case. Lillibridge's rights in this case were no more effected by Ross using his name without his knowledge or consent, than if his name had not been used at all in the partition suit. In either case the decree and sale under it were void as to him, and he could successfully attack them in any collateral proceeding. (Smith vs. Ross & Strong, 7 Mo., 463; Galahan vs. Gates, 20 Mo., 236; Edgell vs. Sigerson, 20 Mo., 494; Smith vs. McCutchen, 38 Mo., 417; Higgins vs. Peltzer, 49 Mo., 152; 15 Johns. [N. Y.], 121.)

Bennett Pike, with J. D. Strong, for Respondent.

The case of Peak vs. Laughlin (49 Mo., 162), is clearly distinguishable from the case at bar. In that case, the party seeking relief, had not been party to the partition suit and proceedings, and was not affected by them. But plaintiff here was unwittingly a party, and could not assail the judgment collaterally.

WAGNER, Judge, delivered the opinion of the court.

This was an equitable proceeding to set aside a judgment rendered in partition and a sale made thereunder.

It was alleged in the bill in substance that the plaintiff and some of the defendants were owners, as tenants in common, of a piece of land, and that defendant, Ross, caused a suit in partition to be brought and a decree rendered for the sale thereof, and that the same was sold without any notice, legal or otherwise, having been given to plaintiff, and that plaintiff had no knowledge thereof, until he ascertained the fact after the sale, and that the decree was procured by the fraudulent acts of the defendant Ross.

The court below gave judgment in accordance with the prayer of the petition, set the decree in partition aside, and adjudged the sale under it to be void.

We think the evidence fully warrants and sustains the action of the court. The facts are that Ross, without any knowlege or authority from the plaintiff, instituted the proceeding for partition, in which he joined the plaintiff here as a co-plaintiff with himself. The evidence strongly tends to establish that this was done to keep plaintiff in ignorance, and prevent his offering any resistance. As he had no authority for joining him as a plaintiff, he ought to have made him a defendant, but in that event, notice would have been necessary, and the purpose had in view would probably have been defeated. As it was, the plaintiff was not advised of either the suit or the sale, till after it had taken place and his property was sold for less than half its value.

But the counsel for the defendants...