Mirick v. Heirs
| Decision Date | 05 June 1924 |
| Docket Number | 23634 |
| Parties | M. S. MIRICK v. UNKNOWN HEIRS, DEVISEES, etc., OF STEPHEN BOOTEN; MRS. M. F. SUMMERVILLE, Movent, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court; Hon. Sterling McCarty Judge.
Reversed and remanded (with directions).
W H. Spencer, S. I. Stiles and Sam J. Corbett for appellant.
(1) The court erred in dismissing movent's motion to open the proceedings and modify the decree, and in disregarding the express mandate of the statute. Secs. 1976, 1978, 1980, R. S 1919. (2) The judgment is for the wrong party, and should have been for the movent, decreeing to her an undivided one-seventh interest in the land in question. Phillips v. Broughton, 270 Mo. 365. Plaintiff could not contradict the allegations of his petition. Wilson v. Albert, 89 Mo. 537; Weil v. Posten, 78 Mo. 284; Kuhn v. Weil, 73 Mo. 213.
There was filed in the Circuit Court of Pemiscot County, Missouri, a suit to quiet title, brought by M. S. Mirick, as plaintiff, against the unknown heirs, etc., of Stephen Booten, deceased, returnable to the March term, 1920, of said court. Said petition alleged that plaintiff was the true and lawful owner, in fee simple, of the following described land located in Pemiscot County aforesaid, to-wit: All of the southwest quarter of the southwest quarter of Section 9, Township 16, North, of Range 11, East, containing forty acres more or less. Said petition further alleges that plaintiff verily believed that there are persons interested in the subject-matter of his petition, and who apparently have, or claim to have rights, titles, interests or estates in and to the land aforesaid, whose names he could not insert in said petition, because their names were unknown to him, and were not ascertainable after diligent search and inquiry.
It is further alleged that said parties defendant, whose names are all unknown as aforesaid, derived or claim to derive, their apparent rights, titles, interests or estates in and to said land, as the consort, heirs, etc., of Stephen Booten, deceased; "that Stephen Booten at one time owned the above described land and died intestate, leaving said land to his wife and six children; that his said wife died before said land was partitioned; that one of said children above mentioned has not been heard of nor seen for more than nine years, and that the remaining five children sold all of their right, title and interest in and to said land to the plaintiff." It is further alleged that the defendants, named as such in said petition, claim their respective rights and titles by inheritance from said Stephen Booten, and that plaintiff has acquired all the rights and titles that Stephen Booten ever had in said lands by mesne conveyances, and that plaintiff is now the owner of the land aforesaid; that the claims and titles of said defendants are hostile, prejudicial to plaintiff, and utterly unfounded. The petition concludes with a prayer, in which the court is asked to ascertain and determine the title to said land, etc. Said petition was sworn to by B. A. McKay as attorney for plaintiff.
Von Mayes was appointed attorney for said unknown defendants and, as such, filed an answer in said cause, denying each and every allegation of the petition, except that said unknown defendants claim some right, title and interest in the land aforesaid, and prayed judgment accordingly.
The abstract of record recites that the judgment is in the usual form in cases to quiet title. It shows the appointment of Von Mayes as attorney for the unknown defendants, the filing of his answer, and the allowance of his attorney's fees. It further shows service on unknown defendants by order of publication, in the Pemiscot Argus; that title to said land was decreed to be in plaintiff, and that said unknown defendants had no title or interest therein.
Said judgment was rendered on the 15th of April, 1920, during the March term, 1920, of the Circuit Court of Pemiscot County. Thereafter, on November 15, 1920, and at the regular November term, 1920, of said court, the movent, Mrs. M. F. Summerville, filed her motion in the foregoing cause, and alleged therein, in substance, that she is an heir at law of Stephen Booten, deceased, heretofore mentioned, and claims an interest in said real estate as such heir; that she is entitled, as such heir, to an undivided one-seventh interest in the land aforesaid, and was so entitled at the time of the rendition of the judgment aforesaid; that she was not made a party to said suit by name, but was described as being unknown; that she was never personally served with any notice before the rendition of said judgment as provided in Section 2540, Revised Statutes 1909, did not enter her appearance in said cause, nor did she answer plaintiff's petition, as provided in Section 2541, Revised Statutes 1909; that she had no knowledge of the pendency of said suit, nor of the rendition of said decree, until long after the adjournment of the March term, 1920, of the Circuit Court of Pemiscot County, at which term said decree was rendered. She alleges that the allegations of plaintiff's petition are untrue in the following particulars: Said petition alleges that plaintiff is the true and lawful owner of said land, that he was seized and possessed in fee-simple of said land, and that the unknown heirs of Stephen Booten, deceased, had no title or interest therein, when in fact said plaintiff did not own said land in fee-simple, but the same was held by him under several deeds from other heirs of Stephen Booten than this movent, which deeds conveyed the interest of said other heirs to M. S. Mirick and Ethel Mirick, who are husband and wife, thereby creating an estate by the entirety in M. S. Mirick and Ethel Mirick in and to the interests of said other heirs of Stephen Booten; that said petition was further untrue, in this, it alleged that this movent had no title or interest in said land, when in fact, she was entitled to an undivided one-seventh interest therein. She further alleges that at the time of the rendition of said judgment she had, and now has, a good defense to said petition in this, to-wit: That she then owned and now owns an undivided one-seventh interest in said land as one of the heirs of Stephen Booten, deceased; that she was prevented from making such defense on the trial of this cause, for the reason that she was and is a non-resident of this State, and had no knowledge of the pendency of said suit until long after the term of court at which the cause was tried had adjourned; that she was, at the time of said trial, and now is, a married woman and under the disability of coverture. She further alleges that she has given twenty days notice, next before the filing of this motion to the said M. S. Mirick, together with a copy of this motion, thereby notifying him that said motion would be filed on November 15, 1920, the first day of the November term of said court, to open up the proceedings in this cause, and to modify the judgment heretofore rendered in accordance with the testimony to be produced on said motion. The latter concludes with a prayer, in which the court was asked to open up the judgment aforesaid, and on the hearing of said motion, and the evidence offered in support of same, that the former decree should be modified as rendered on April 15, 1920, according to the evidence adduced herein, and that a decree be entered declaring the movent to be the owner of an undivided one-seventh interest in and to the land aforesaid and for such other relief as may seem just and proper.
The cause was submitted to the court on the above motion, April 13, 1921, at the regular March term, 1921, of said circuit court, and the latter, after hearing the evidence on both sides, took the case under advisement until November 26, 1921, and, on said date, during the regular November term, 1921, rendered judgment on said motion in favor of plaintiff and against this appellant. The court, in its opinion, recites the rendition of the former judgment, the appointment of Von Mayes, as attorney for unknown defendants, and the filing of his answer as such. The judgment on said motion then recites:
The appellant, in due time, filed her motion for a new trial, which was overruled, and an appeal granted her to this court.
The evidence and proceedings in reference to the trial of appellant's motion aforesaid were properly preserved by a bill of exceptions, in which it appears that timely notice was given said plaintiff, as to filing of the above motion, which is in proper form.
Appellant offered in evidence the petition in the case of Mirick v Unknown Heirs of Stephen Booten, deceased, the substance of which is heretofore stated; the proof of publication, which was in the usual form of the publications in suits to quiet title against unknown defendants; and the original decree, heretofore described. The appellant also offered in evidence, a warranty deed from Perry Booten et al. to M. S. Mirick and Ethel Mirick, his wife, conveying an undivided interest in the land in question. It was dated June 12, 1919, and recorded in the...
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