Loring v. Groomer

• Decision Date: 20 June 1892
• Citation: 19 S.W. 950,110 Mo. 632
• Parties: Loring, Appellant, v. Groomer et al
• Court: Missouri Supreme Court

19 S.W. 950

110 Mo. 632

Loring, Appellant, v. Groomer et al

Supreme Court of Missouri, First Division

June 20, 1892

Appeal from DeKalb Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Affirmed.

Samuel G. Loring pro se.

(1) The court erred in admitting in evidence the amended final judgment in the case of Groomer v. Groomer entered of record at April term, 1884. (2) The judgment rendered and entered of record at the March term, 1872, in said case, confirming the commissioners' report in said case, and adjudging the title to the lands described in said report to be in the several parties as therein set forth, was a final judgment. Parkinson v. Caplinger, 65 Mo. 292; Halladay v Langford, 87 Mo. 582. (3) And is binding and conclusive upon all the parties. General Statutes of 1865, sec. 25, p 612; Babb v. Graham, 89 Mo. 200; Halladay v Langford, 87 Mo. 582; 1 Herman on Estoppel, etc., pp. 304-7; Forder v. Davis, 38 Mo. 114; State v. Moore, 18 Mo.App. 410. On infants as well as adults. Rolf v. Timmermeister, 15 Mo.App. 254. (4) It makes no difference how erroneous the judgment may have been. The parties had the opportunity to have the commissioners' report set aside for good cause at the March term, 1872. If there was a good cause, they should have spoken then. Knall v. Moelken, 13 Mo.App. 276; State v. Donegan, 12 Mo.App. 201. (5) The final judgment of partition as between the parties to the suit was the same as that of a deed of general warranty, and all are estopped from saying that they did not in March, 1872, own the south half of the northwest quarter of section 14, township 60, range 30. Forder v. Davis, 38 Mo. 115; Halladay v. Langford, 87 Mo. 582; Freeman on Judgments, sec. 608; Edson v. Munsell, 13 Allen (Mass.) 600. (6) As a general rule, no final judgment can be amended after the term at which it was rendered. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors; but a court at any time may correct a clerical error by the minutes of the judge or some record in the case showing clearly that such a clerical error was committed. Ross v. Ross, 83 Mo. 102; Belken v. Rhodes, 76 Mo. 651; Evans v. Fisher, 26 Mo.App. 547. (7) A judgment nunc pro tunc cannot be made to operate to the prejudice of the rights of third parties acquired in good faith between the time of the rendition of the original judgments and the entry of the judgment nunc pro tunc. McClannahan v. Smith, 76 Mo. 430; Coe v. Ritter, 86 Mo. 287; Koch v. Railroad, 77 Mo. 355.

Alexander & Richardson for respondents.

(1) It clearly appears from an inspection of the record that the final judgment as entered by the clerk was not in conformity with the interlocutory judgment or the commissioners' report, and the court was warranted in acting upon the presumption that it was a clerical mistake, rather than a judicial blunder, and in setting the judgment entry right by an amendment nunc pro tunc. Freeman on Judgments [3 Ed.] sec 70, et seq. If the clerk fails to enter judgment or enters up the wrong judgment, the court may correct the error, and the proper entries may be made at another term, but the records must show the facts which authorize the entry. Saxton v. Smith, 50 Mo. 490; Priest v. McMaster, 52 Mo. 60; Dunn v. Raley, 58 Mo. 134; Allen v. Sales, 56 Mo. 28; Fletcher v. Coombs, 58 Mo. 430; State v. Jeffors, 64 Mo. 376; Belken v. Rhodes, 76 Mo. 643; Freeman on Judgments [3 Ed.] sec. 71, and cases cited. The rule stated, Freeman on Judgments, sec. 72. Such mistake may be corrected at any time. Coop v. Northcutt, 54 Mo. 128. A decree in one instance being entered after a lapse of twenty-three years. Freeman on Judgments, sec. 56, note 1, and cases cited. (2) The court did not err in refusing plaintiff's second declaration of law. (3) One who takes with notice of an equity takes subject to that equity. Major v. Buckley, 51 Mo. 227; Meier v. Blume, 80 Mo. 179. And holds in trust for equitable owner. Widdecombe v. Childers, 84 Mo. 382. And equitable title will prevail, where owner of legal title had knowledge of existence of former, or had such means of knowledge, as to put him on inquiry. Swisher v. Sensenderfer, 84 Mo. 104. The claim of counsel for appellant that defendant is estopped to deny plaintiff's title or set up title in himself is not well founded. Minors are not subject to binding effect of an estoppel. Campbell v. Gaslight Co., 84 Mo. 352. The public is bound to take notice of the records. Freeman on Judgments, sec. 66, and cases cited. A mere inspection of the records in the partition suit would have disclosed defendant's title, as the error was apparent.

Sherwood, P. J. Barclay, J., absent.

OPINION

Sherwood, P. J.

In October, 1888, the plaintiff brought ejectment for an undivided five-sixths of the following described land in DeKalb county, to-wit: The south half of the northeast quarter of section 14, township 60, range 30. The answer put in issue the allegations of the petition.

This litigation grows out of partition proceedings among the heirs of William J. Groomer, who is the common source of title. He left six heirs, Logan P. Groomer, the defendant, being one of them, who, it was admitted, was in possession of the land described in the plaintiff's petition, at the commencement of this action.

Partition of the lands which were described in the original petition was had in 1872, and final judgment entered. But the original petition and all the original papers, as well as the report of the commissioners, were lost. The interlocutory decree, however, showed that the only land in section 14 ordered to be divided among the heirs as tenants in common was the south half of the northeast quarter and the southeast quarter of the northwest quarter of section 14, township 60, range 30.

The record of the final judgment in partition showed that there had been allotted to Logan P. Groomer the south half of the northwest quarter and southeast quarter of the northwest quarter of section 14, etc. And the report of the commissioners, as recorded, showed the same description as that just mentioned, and that said land as thus described had been allotted to the defendant, Logan P. Groomer.

After the partition proceedings were had, the interest of the heirs in the land in suit, except that of the defendant, was conveyed by mesne conveyances to the plaintiff, the first deed being dated in 1874 and others in 1875, 1878 and 1880, which conveyed the legal title to the land in controversy to Sampson F. Jones. In 1881, Sampson F. Jones conveyed the same land by general warranty deed to Henry F. Wilson, trustee for John Wilder, to secure a note for $ 800. In execution of the power contained in the deed of trust, the trustee sold the land to plaintiff in 1888, executing a conveyance in usual form.

In 1883, the defendant discovering the alleged mistake in the description in the land allotted to him, which consisted as already seen in a single word, to-wit, the word "west" instead of the word "east," served notice on all the parties to the original proceedings of his intention to move the court to correct the final judgment in partition in the particular aforesaid. Simon Jones and Sampson F. Jones, both being grantees of said land through mesne conveyances, were also notified respecting said motion; but neither Wilson, the trustee, nor Wilder, the beneficiary, in said deed of trust were thus notified.

In 1884, the circuit court made the correction as prayed, by entering a final judgment nunc pro tunc as of the date of the original judgment rendered in 1872; and this correction it appears was made on the basis of the correctness of the interlocutory judgment of 1871.

From this final judgment entered nunc pro tunc, no appeal was taken. It nowhere appears who, if anyone, was in possession of the land in suit, except as already stated as having been admitted; but this admission obviously does not cover the period of time intervening between the final judgment in partition and the sale made under the deed of trust in 1888. At the close of the evidence the court gave judgment for the defendant, refusing the following declaration of law asked by plaintiff: "The court declares the law that under the judgment entered of record at the March term, 1872, of this court in the case of William R. Groomer and David Groomer, plaintiffs, against Sarah J. Groomer et al., defendants, in proof, this defendant was only the owner and entitled to the possession of one undivided one-sixth of the lands in controversy, and all and every person had a right to, and may safely, rely upon said judgment as then entered upon the records of this court as being absolutely the true judgment in said case, and that the amended judgment in said case, entered of record at the April term, 1884, thereof, through which this defendant claims title to all of said land, is absolutely void and of no effect against this plaintiff, and cannot in anywise affect or prejudice his right to recover in this case, and this court will find for the plaintiff, unless it further finds from the evidence that at the time of the execution of the deed of trust in proof from Sampson F. Jones to Henry C. Wilson as trustee for John Wilder, to-wit, July 26, 1881, the said Henry C. Wilson and John Wilder knew, or had actual notice, both that said judgment entered of record at the March term, 1872, was not the true judgment in said case, and that this defendant then owned all of said land, the proving of all which facts to its satisfaction, by the preponderance of the evidence, rests upon defendant."

The court, however, gave the following declaration of law at the instance of the plaintiff: "The court declares the law that the several deeds read in evidence upon...