Payne v. Masek

• Decision Date: 14 March 1893
• Parties: PAYNE et al. v. MASEK.
• Court: Missouri Supreme Court

21 S.W. 751

114 Mo. 631

PAYNE et al. v. MASEK.

Supreme Court of Missouri, Division No. 2.

March 14, 1893.

PARTITION OF MINOR'S ESTATE — APPEARANCE BY CURATOR.

Rev. St. 1879, § 3346, relating to partition, provides that the guardians and curators of the estates of minors are authorized to do anything respecting the division of lands as therein directed, which shall be binding on such ward, and be as valid as if the same had been done by such ward after his disabilities are removed. Section 3345 provides that all proceedings in partition shall be as in ordinary civil actions. Held, that a minor defendant in such proceedings, on whom no service of process has been made, is bound by the judgment of the court, where his appearance was entered by his general curator.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Proceeding under the statute by Fannie E. Payne and others against William J. Masek for partition of real estate. There was judgment for defendant, and plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by GANTT, P. J.:

This is a proceeding under the statutes of this state for partition of certain real estate in the city of St. Louis. Plaintiffs claim to own three twelfths of the land, and alleged that defendant owns the remaining nine twelfths, and pray for a sale. The answer is a general denial, and a plea of ownership of the whole tract by defendant, which was denied in the reply. The cause was submitted to the circuit court upon the following agreed statement of facts: "Fannie E. Payne et al., Plaintiffs, vs. William J. Masek, Defendant. It is agreed by and between the parties hereto that the following are the facts of this case, and it is further agreed that this case shall be submitted upon these facts, and none other, viz.: That theretofore, to wit, on or about April, 1888, a partition suit was brought in this court, and to the June term, 1888, thereof, wherein Margaret Payne, Alfred H. Payne, and wife, were plaintiffs, and Edward H. Payne, Narcissa J. Payne, Fannie E. Payne, a minor, Mary A. Payne, a minor, and Thomas J. Payne, a minor, and Robert H. Payne, curator of said minors, and Rochester Ford, administrator of Thomas J. Payne, deceased, were defendants, said three minor defendants being plaintiffs in this suit; which said partition suit was numbered 76,759, and was brought to make partition of the land in controversy here, and other lands. That at the time of the institution of said suit the plaintiffs herein, viz. Fannie E., Mary A., and Thomas J. were each the owners in fee of an undivided one twelfth of the land in controversy, and that they are still the owners of such interest, unless the same has been divested by the sale hereinafter mentioned as having been made in said partition suit. That no process of any kind was ever issued in said partition suit for, or served on, these said plaintiffs, at any time, nor was there any order of publication made or published in said case at any time. That these said plaintiffs were then all minors, and resided with their mother in the state of Illinois. That said plaintiff Fannie E. is now no longer a minor, having reached her majority shortly before this suit was begun, but the other said plaintiffs herein are both minors, and the plaintiff William A. Rutledge is their duly appointed, qualified, and acting curator, as alleged in the petition in this case. That at the time of the commencement of said suit for partition, to wit, No. 76,759, brought to the June term, 1888, of said court, said Robert H. Payne was the general curator of the estate of said Fannie E., Mary A., and Thomas J. Payne, plaintiffs herein, he having been long prior thereto appointed as such by the probate court of the city of St. Louis. That after the institution of said suit in partition, (No. 76,759,) the said Robert H. Payne, as curator, entered the appearance of said Fannie E., Mary A., and Thomas J. Payne, his said wards therein, without any process having been issued for or served on either of them, and without any order from any court so to do, and without an order of publication ever having been made or published in said cause. That afterwards such proceedings were had in said partition cause (No. 76,759) as that said premises were sold, and the defendant in the case at bar bought the same at said partition sale, and paid the sheriff, who made said sale, full value therefor, and defendant now holds the same by virtue of such title as he acquired at said sale, and the confirmation of said sale by the court; but, as before stated, at no stage of said case was there any process issued or served upon Fannie E., Mary A., and Thomas J. Payne, nor was there ever an order of publication made in said cause. That said Robert H. Payne died in October, 1889. That the property in question is not susceptible of partition in kind. That subject to objections by the defendant, for irrelevancy and incompetency, it is admitted that these plaintiffs herein never received from any source any portion of the purchase price of said premises, nor did said Robert H. Payne ever account to them in any way for the same, or any part thereof." The finding and judgment of the court was for defendant, and the plaintiffs filed their motion for a new trial, alleging as grounds therefor that the finding and judgment of the court was for the wrong party; that they should have been for plaintiffs, instead of defendant; that the finding was against the law and facts; which motion having been overruled, and all exceptions properly saved, the plaintiffs bring the case here by appeal.

Seneca N. Taylor and H. M. Pollard, for appellants. John N. Straat, for respondent.

GANTT, P. J., (after stating the facts.)

This record presents the sole question whether under the partition law of this state in force in 1888, in a suit for partition of lands, a minor defendant in such suit could appear by his or her general curator, without service of process on such minor defendant, so as to be bound by the judgment of the court. It is conceded by both sides that the Revision of 1879 contains the laws governing the proceedings in the suit in question in this case. Section 3345, Rev. St. 1879, provides that "all pleadings and proceedings under this chapter shall be had as in ordinary civil actions." Section 3346, that "the guardians and the curators of the estates of minors and persons of unsound mind, appointed according to law, are hereby authorized, in behalf of their respective wards, to do and perform any matter or thing respecting the division of lands, tenements, or hereditaments, as herein directed, which shall be binding on such ward, and deemed as valid to every purpose as if the same had been done by such ward after his disabilities are removed." This latter section was first adopted November 2, 1808, by the legislature of the then territory of Louisiana. It has been retained, with some amendments, in every revision of our laws from that date to the present time. The amendment simply included curators, where the section originally applied to guardians only. Territorial Laws to 1824, p. 205, § 5; Rev. St. 1845, p. 774, § 53; Rev. St. 1855, p. 1119, § 51; Gen. St. 1865, p. 616, § 48. It is essential to bear in mind this section and its history as we proceed to the further examination of this case. The defendant does not controvert the proposition that in all actions and proceedings under our statutes, whether at law or in equity, except in a suit for partition under the statute, unless the minor defendant is served with process, or duly notified as the law requires, the...