McClanahan v. West

• Decision Date: 22 March 1890
• Citation: 100 Mo. 309,13 S.W. 674
• Parties: McCLANAHAN et al. v. WEST et al.
• Court: Missouri Supreme Court

13 S.W. 674

100 Mo. 309

McCLANAHAN et al. v. WEST et al.

Supreme Court of Missouri.

March 22, 1890.

JUDGMENT — VACATING — PARTITION.

1. A domestic judgment rendered by a court of general jurisdiction cannot be impeached by a party thereto, merely because the record is silent as to the service of process on such party.

2. Where the files show affirmatively that there was no service of process, judgment may be impeached thereby; and in case of their loss, proof of their contents may be made.

3. Where a party to a suit has agreed to the admission of an affidavit as evidence for the purpose of trial, to prevent a continuance, he is estopped from assigning its admission as error.

4. Where one has taken the proceeds of a partition sale, and receipted therefor, with knowledge of the source of the proceeds, she cannot repudiate the transaction, though the partition proceedings were void for irregularities.

5. Where a judgment in partition proceedings is void on its face, there is no necessity for an equity suit to set it aside; there is an adequate remedy in ejectment.

Error to circuit court, Jackson county; TURNER A. GILL, Judge.

This proceeding, an equitable one, was instituted by plaintiffs in May, 1885, whereby they sought to set aside and hold for naught a judgment and sale in partition, the sheriff's deed, and subsequent conveyances, on various grounds set forth in the petition, which, in substance, alleged: William K. Anthony died in 1853, the owner of the land described in the petition; that he left, as his only heirs at law, Robert G., Marion, George, Jackson, Lewis, Lillie, and Nancy T.; that, soon after the death of said William K. Anthony, his daughter Marion married Thomas West; that in 1854 a proceeding was begun in the circuit court of Jackson county for the partition of these lands, to which all the heirs were made parties; that at the March term, 1855, an order of sale of the lands was made by the court, and at the March term, 1857, the sheriff filed his report of sale, which was presented to be confirmed. It is alleged that the judgment and proceedings are void on their face; that said Thomas West pretended to purchase said lands at said sale for a nominal price; that the plaintiff Nancy T., who some time before the bringing of this suit married her co-plaintiff McClanahan, had no notice of the pendency of said partition proceedings; that she was not served with any process, and as to her they were void; that the suit was instituted by the said Thomas West, who conspired with Robert, one the Anthony heirs, to cheat and defraud the plaintiff Nancy out

of her share of her father's estate; that she was then a small girl, and after the close of the war she inquired of Thomas West and his wife, Marion, what had been done with her father's land, and was told by them that it had been sold for debt, and that West had bought it at sheriff's sale. It is further alleged that she believed these statements, and placed special trust and confidence in them, and was thus thrown off her guard, and prevented from making further inquiry. It is further alleged that West made these false representations with the view to cheat and defraud the plaintiff, and that, in order to conceal his deceit and fraud, he forbade intercourse with her relations and friends, and induced others to keep quiet, and lest she might discover the fraud he sent her into Morgan county, telling her that there was a little money coming to her from her father's personal estate, and that her guardian would send it to her when she arrived at her majority. It is further alleged that plaintiff Nancy never learned of said fraud and concealment until within two years immediately preceding the filing of this petition, when a copy of the petition filed by the Kansas City Belt Railway Company, for a condemnation of a part of the land, was served upon her. This aroused her suspicions. It was further stated that Thomas West died in 1873. The petition further states that her guardian, at his settlement in 1870, asked her for receipts, which she gave, but she disclaims any knowledge of their purport. She alleges that she did not understand that she was receipting for her share of her father's land, and she asks, if any receipt or conveyance of her share in her father's land is offered in evidence, it may be declared void, as she supposed she was receiving only her share of her father's personal estate. It is further alleged that said partition suit was never prosecuted to a final end; that the record shows that no order of distribution was ever made; and that no deed to the purchaser under the sale therein appears to have been acknowledged in open court, as required by law. The heirs of Thomas West are made parties to the bill, and it is alleged that the widow, Marion, and the children have sold part of the lands to defendant Shaefer, who purchased for defendant Blair. Allegation is further made that West in his life-time, and his widow and children since, have pretended to purchase or have caused to be purchased by others, for their benefit, the interest of the heirs of the said William K. Anthony, except that of the plaintiff Nancy, and that they tried to purchase hers, and by so doing admitted her right to one share, as tenant in common, to one-seventh of the lands. It is further alleged in the bill that the decree in the partition suit is incomplete, fraudulent, and void, and that all mesne conveyances from the pretended sale thereunder are fraudulent and void, and plaintiffs claim that they are entitled to the possession of the one undivided seventh part of said lands, and pray for a decree of possession. Further prayer is that the said judgment in partition, and the sale made in pursuance of the same, and the deed, be declared null and void, and be set aside, especially as to them; that all intermediate conveyances be declared fraudulent, null, and void, especially as to the plaintiffs; and that the possession of the undivided one-seventh part of said lands be adjudged to the plaintiffs; and for other relief. The answers of the adult defendants were in fact, or in effect, (1) general denials; (2) pleas of the statute of limitations; (3) an estoppel arising from the receipt by the plaintiff Nancy after she arrived at her majority, with full knowledge of the facts, of her proportion of the proceeds of the partition sale. The replies were general denials. The answer of the guardian ad litem of the minors was as usual in such cases. Having heard the testimony in the cause, the lower court dismissed the petition, and plaintiffs brought error.

James A. Spurlock, for plaintiffs in error. Johnson & Lucas, C. O. Tichenor, W. J. Ward, and Gage, Ladd & Small, for defendants in error.

SHERWOOD, J.

The petition in this cause does not charge that any fraud was used in obtaining the judgment of partition. If this had been done; if it had been charged that fraud was used in the very "concoction" of that judgment, — it would have been admissible to establish such fraud in the present proceeding; regarding it, in that event, as a direct attack on that judgment. Bigelow, Fraud, 86-88, 90, 94, 95, 636; Bigelow, Estop. (3d Ed.) 162, 163; Payne v. O'Shea, 84 Mo. 129. The authorities differ on the point whether a judgment can be attacked collaterally for fraud, or...