Lindell Real-Estate Co. v. Lindell

• Citation: 142 Mo. 61,43 S.W. 368
• Parties: LINDELL REAL-ESTATE CO. v. LINDELL et al.
• Decision Date: 07 December 1897
• Court: United States State Supreme Court of Missouri

43 S.W. 368

142 Mo. 61

LINDELL REAL-ESTATE CO. v. LINDELL et al.

Supreme Court of Missouri, Division No. 1.

December 7, 1897.

PARTITION — TITLE — DECREE — PETITION FOR REVIEW — JURISDICTION — EFFECT OF REVIEW — LACHES — LIMITATIONS — MARRIED WOMEN — ESTATE.

1. Rev. St. 1889, §§ 2217, 2220, provide that defendant in an action in which he has not been summoned and has not appeared, but is brought in by publication, and in which an interlocutory judgment has been made final, may, within three years after rendition of such final judgment, appear, have same reviewed, and, for good cause, set aside; but, in order to obtain such review, it devolves upon such defendant to show that the petition on which such judgment was procured is untrue in some material matter, or that he has, and then had, a good defense thereto, which shall be set forth. Held, that a petition for review, by one who had been served by publication only, stating that the purported assignee of an interest in certain property sold under an interlocutory judgment of partition, which was afterwards made a final judgment, claimed same under a conveyance from one who held the title thereto in trust for petitioner, which conveyance was a breach of trust, of which breach the assignee at the time had notice, and that said assignee did not take for value, sets forth such an interest in the real estate in question as entitles

the petitioner to a review of the judgment as to the part claimed by the assignee.

2. Rev. St. 1889, §§ 1996, 6864, permitting a married woman to sue and be sued in her own name, the same as a feme sole, do not by implication repeal the part of section 6767 that exempts a married woman from the running of the statute of limitations, since mere ability to sue does not impose an obligation to do so.

3. Nor do said statutes abrogate the common-law rule that a married woman cannot be guilty of laches.

4. Where property has been conveyed to a trustee in trust for a married woman, and jus disponendi is conferred on him, she does not own a separate estate therein.

5. Where the transaction has not become obscure by the lapse of time, and no party or witness has died since the cause of action accrued, and no lasting or valuable improvements have been made upon the property in question, and no expense has been incurred by defendant, by reason of the delay in bringing suit, laches will not be imputed to one, under the disability of coverture, who failed for 11 years after the cause of action had accrued to bring an action for an interest in a remainder in real estate, the life tenant of which was still living.

6. Under Rev. St. 1889, §§ 7145, 7148, providing that in partition suits the court shall ascertain and declare the rights, titles, and interests of the parties, and give judgment accordingly, and that, in case parties claim the same portion adversely, the court may determine their rights, the court has jurisdiction to determine questions of title; and hence a judgment against one who has been made defendant in partition suit, and has failed to set up any adverse interest, is a bar to a subsequent suit between the same parties regarding the same subject-matter.

7. Where a final decree in partition is reviewed on petition, such review does not disturb the decree, as to the rights of any co-tenants, except such as are charged by plaintiff in the petition for review with holding adversely to him.

8. Under Rev. St. 1889, § 2224, providing that a judicial sale shall not be affected by setting aside any judgment regularly made, the purchasers at a sale under a decree in partition would be fully protected against any action subsequently taken by parties on a petition for review of the judgment.

9. Under Rev. St. 1889, § 2219, providing that, if a petition to review a judgment making final an interlocutory judgment be not filed within three years after rendition of such final judgment, the same shall stand absolute, such judgment does not become final until after the three years have elapsed; and therefore a party to a partition suit, whose interest is disputed by a petition for review filed in due time, is subject to the jurisdiction of the court, and can be required to make such disposition of the interest in dispute as to the court seems just.

Appeal from St. Louis circuit court.

In a suit by the Lindell Real-Estate Company against Jemima Lindell and others, a judgment in partition was rendered. From an order striking out her petition for a review of the judgment, Ellen Davis, one of the defendants, appeals. Reversed.

T. J. Rowe and Jos. S. Laurie, for appellant. John D. Davis and Jos. W. Lewis, Jr., for respondents.

ROBINSON, J.

On August 30, 1892, a suit between the devisees of Jesse G. Lindell, deceased, and their heirs and assigns, for the partition of certain real estate in St. Louis (subject, however, to the life estate of Jemima Lindell, the widow of said Jesse G. Lindell), was instituted. On February 23, 1893, an interlocutory judgment of partition, defining the respective interests of the parties, and ordering a sale of the property, was rendered. Afterwards the property was sold by a special commissioner, whose report of sale was duly approved, which was followed on May 27, 1893, by final decree. April 1, 1895, the appellant in this proceeding, Ellen Davis, a married woman, and one of the defendants in said cause, appeared in court, and filed her petition for review, verified by affidavit, under the provisions of sections 2217 and 2220 of the Revised Statutes of 1889. Mrs. Davis is now, and was then, a nonresident, and was not summoned and did not appear to said action, but was brought in by publication. Plaintiff then moved to strike the petition for review from the files, for the following grounds: "(1) The petition does not set forth facts constituting a good defense to the allegations contained in plaintiff's petition. (2) It appears from the facts stated in said petition for review that more than ten years have elapsed since the alleged cause of action accrued, and the action is therefore barred by the statute of limitations. (3) It also appears from the facts stated in said petition for review that the petitioner has been guilty of such laches that she is not entitled to assert any claim to the property described in plaintiff's petition." Which so-called motion is, in effect, a demurrer to the petition, and has been so treated by all the parties. The petition for review is in words and figures following, omitting the caption:

"Now comes your petitioner, Ellen Davis, and states to the court: That she was made a party defendant in the above-entitled cause, which was an action instituted in this court on July 30, 1892, by and between the devisees of the late Jesse G. Lindell, and their heirs and assigns, for the partition of the real estate therein described, subject to the life estate therein of the said Jemima Lindell. That your petitioner, said defendant, was at the institution of said suit, and now is, a nonresident of the state of Missouri, and was not summoned in said action, neither did she appear to said suit, nor was she made a party as a representative of any one who had been summoned or appeared, but was brought in by publication, in accordance with the provisions of the statute relating to nonresident defendants. That, as to her, a default was granted in said cause, and the allegations of the petition taken as confessed; and on the 23d day of February, 1893, an interlocutory judgment of partition and an order for the sale of the property were entered. That said judgment undertook to define the respective interests in and to said real estate of the parties therein designated, and directed that, inasmuch as partition in kind seemed impracticable, a sale of said property be made by a special commissioner then and there appointed by the court, and that the proceeds of such sale be distributed by said commissioner to the parties mentioned and described, according to their respective interests as defined by said judgment. That on March 23, 1893, said special commissioner made his report of the sale of said property, which was duly approved by the court; and on May 27, 1893, said special commissioner made his final report, showing that the whole amount of the purchase money had been paid to him, and that he had distributed the same (amounting to $67,089, net) to the parties designated by the court, according to their respective interests. That said report was duly approved on March 27, 1893, and a final judgment in the cause was then and there entered accordingly. The petitioner in said cause alleged that your petitioner (defendant therein) claimed to be entitled to the interest in said property which Jesse G. Lindell, Jr., the nephew or grandnephew of Jesse G. Lindell, deceased, acquired under the will of said testator, but that said interest had, by mesne conveyances, passed to William F. Ferguson, deceased (whose heirs and administrators were made defendants therein), and was owned and held by said estate, subject, however, to whatever right thereto may be finally adjudged in favor of Edward C. Dameron, also defendant therein, under and by virtue of a certain written agreement between William F. Ferguson and one William C. Jamison, concerning which a suit was then pending, on appeal, in the supreme court of Missouri. The judgment or decree of this court so adjudged, and found that your petitioner no longer had any interest in the premises. Said allegations of the petition touching the right, title, and ownership of that interest in said property which said Jesse G. Lindell, Jr., acquired under and by virtue of the will of the late Jesse G. Lindell are untrue; and your petitioner has, and then had, a good defense to such action, whereby it will appear that she is and was entitled to be adjudged the owner of the interest in said property acquired by the said Jesse G. Lindell, Jr., under said will, the...