Phillips v. Broughton
| Decision Date | 16 March 1917 |
| Citation | 193 S.W. 593,270 Mo. 365 |
| Parties | MURRAY PHILLIPS, Appellant, v. NANNIE E. BROUGHTON et al |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.
Affirmed.
Oliver & Oliver for appellant.
(1) Where a court has jurisdiction over the subject-matter of a suit and of the parties, its judgment is binding on the parties until set aside or annulled by appeal. Such a judgment may be irregular and voidable, but it is not void and cannot be attacked collaterally. Chouteau v Gibson, 76 Mo. 46; Murphy v. DeFrance, 101 Mo 151; Hardin v. Lee, 51 Mo. 244; Reed Bros. v Nicholson, 158 Mo. 631; State v. Wear, 145 Mo. 203; Black on Judgments, sec. 170. (2) This is true, although the defense sought to be set up in the second suit was not set up in the first suit, provided such defense came within the scope of the inquiry of the first suit. Donnell v. Wright, 147 Mo. 647; Railroad v. Traube, 59 Mo. 362; Tuttle v. Harritt, 85 N.C. 456; Hotel Assn. v. Parker, 58 Mo. 327; Hamilton v. McLean, 169 Mo. 51; Railroad v. Levy, 17 Mo.App. 507; McCalley v. Wilburn, 77 Ala. 549; 2 Black on Judgments, sec. 697; Freeman on Judgments (4 Ed.), sec. 36. (3) The issues tendered by plaintiff's petition to quiet title in 1908 were: 1st, ownership in fee of the land described; 2nd, possession of the land described by plaintiff; 3rd, assertion that defendants set up some claim to the lands described, adverse to the plaintiff. These were the jurisdictional and issuable averments in the plaintiff's petition. They conform to the requirements of the statute. To these charges no denial was interposed or made by either of the adult defendants. The minor defendant did deny them. The cause was submitted on the testimony offered by the plaintiff, and the court found all of the facts set up in plaintiff's petition to be true. Judgment was entered, quieting the title in the plaintiff, and enjoining and prohibiting the defendants from further asserting claim or title to the lands. The defendants could have denied: (a) plaintiff's ownership of the land; (b) plaintiff's possession of the land; and: (c) averred ownership by adverse possession for ten years, if they had so elected; refusing to plead, they are estopped and barred from doing so in this case. Hamilton v. McLean, 169 Mo. 73, and authorities cited under point one. (4) In an action to quiet title, all matters affecting the title of the parties to the action may be litigated and determined, and the judgment therein is final and conclusive. A general finding of title in the plaintiff and consequently of no title in the defendant is a conclusive and binding decision against the defendant on the question of title from whatever source it may be derived, and forever estops him from asserting a claim of title which existed at the time of the finding and the judgment. This is the very purpose of the statute. 2 Black on Judgment, sec. 664, p. 800; Sec. 650, R. S. 1899; Sec. 2535, R. S. 1909. (5) The petition in the suit to quiet title was in accord with the provisions of the statute, except the prayer. The circuit court of New Madrid County, however, disregarded so much of the prayer as was inappropriate and unauthorized under the averments of the petition and the law, and entered a decree quieting title in plaintiff. The court had the right to grant plaintiff any relief "consistent with the case made by the plaintiff and embraced within the issues." The character of an action is determined by the facts stated in the petition and not by the prayer for relief. Sec. 76, R. S. 1899; Sec. 2100, R. S. 1909; Sec. 767, R. S. 1899; Sec. 2091, R. S. 1909; State ex rel. v. Land & Lumber Co., 161 Mo. 671; Sharkey v. McDermott, 91 Mo. 657; Reed v. Bott, 100 Mo. 67; Commings v. Railroad, 48 Mo. 517; Lumber Co. v. Jones, 220 Mo. 197. (6) The judgment of the circuit court of New Madrid County of September, 1908, adjudging that the plaintiff was the owner in fee of the land in suit, and further adjudging and decreeing that the defendants and each of them be forever enjoined, restrained and forbidden from asserting any right, title, claim or interest in and to the land, is just as binding as any other judgment affecting real estate. The statute specially provides that such a judgment "shall have the same force and effect as a judgment obtained under the provisions of the Code of Civil Procedure." Sec. 651, R. S. 1899; Sec. 2536, R. S. 1909.
I. R. Kelso and J. G. Miller for respondents.
(1) A suit to quiet title does not contemplate a judgment for possession, and that a writ of ouster go. "The precise point has been ruled upon and is no longer open." Mann v. Doerr, 222 Mo. 11. (2) The Act of 1897, concerning suits to quiet titles, by declaring that it is enacted for the purpose of "taking the place of statutes which fail in their object," expressly repeals Sec. 2092, R. S. 1889 (Sec. 647, R. S. 1899), since there is no other section to which it can refer. Merriweather v. Love, 167 Mo. 514. (3) We call attention to some of the cases decided by the courts of this State under Section 2092, above mentioned, and under which appellant attempted to institute suit to quiet title after this statute had been repealed. (a) In order to institute a proceeding under this section the petition must be in actual possession of the premises. Von Phul v. Penn, 31 Mo. 333; Rutherford v. Ullman, 42 Mo. 216; McGrath v. Mitchell, 65 Mo.App. 626; Root v. Mead, 58 Mo.App. 477; Chaffin v. Clark, 33 Mo.App. 99; Thompson v. Newberry, 93 Mo. 18. (b) A proceeding instituted under this section is not for the purpose of settling the title to the premises in the first instance, but is only preliminary to an action which the defendant or adverse claimant may be ordered to bring for that purpose. See cases above cited; also Colline Assn. v. Johnson, 120 Mo. 299. (c) On the trial of the issues formed on the petition, evidence showing title in fee in the plaintiff, is not proper; it being only necessary for him to show actual possession of the premises, claiming either an estate of freehold, or an unexpired term of not less than ten years. Dyer v. Baumeister, 87 Mo. 134. (d) A possession by the plaintiff that is merely nominal, or wrongfully obtained for the purpose of instituting a suit so as to require the defendant to bring a suit to assert his title, is not sufficient to justify an order against the defendant to institute a suit. See last case above cited. (e) This section was not intended to authorize a proceeding that would be a substitute for the action of ejectment.
This is a suit in ejectment to recover the north fractional half of the southwest fractional quarter of fractional section 13, township 22, range 13 east, containing 141.1 acres, situated in New Madrid County, Missouri. The suit was transferred on change of venue from the New Madrid Circuit Court to the Butler Circuit Court, where trial was had before the court, without a jury, resulting in a judgment for the defendants. Plaintiff duly perfected an appeal.
The petition is in usual form.
The answer is in five counts, admits possession of the property in defendants, but denies each and every other allegation in the petition. The ten-year and thirty-year Statutes of Limitation are also pleaded as defenses.
The fifth count of the answer is in the nature of a cross-bill, and alleges that the defendants are the owners of and in possession of said land and that they are informed and believe that plaintiff claims some title or interest in said land, the nature and character of which is unknown to defendants, but that defendants are informed that plaintiff is basing his claim to said land on a decree entered in the circuit court of New Madrid County at the September Term, 1908, in a proceeding wherein Murray Phillips was plaintiff and these present defendants were defendants. It is alleged that said decree is void because the court entering the same had no jurisdiction over the property described in said decree, and that said decree was not responsive to the petition attached to the copy of the summons served on the defendants, but wholly failed to describe the property as set out in said decree; that defendants failed to file any answer or appear in any manner in said suit because they, in good faith, believed that said suit was not intended and did not in any manner affect any of the land described in this suit. In the prayer the court is asked to cancel and set aside said decree and to ascertain and determine the title to said land.
The reply denied the new matter set up in each count of the answer.
Plaintiff introduced evidence showing that the paper title to said land was in the plaintiff. The evidence further shows that said land was timbered land and none of it was prepared for cultivation and that a short time prior to the institution of this suit the record owner had some men on the land clearing it and that about six or eight acres had been cleared when defendants ordered said men off the place and took possession of the same. The disputed land is situated between the land owned by plaintiff and land owned by the defendants. Plaintiff testified that he did not know that this woodland, around which the defendants had a fence, was a portion of his land until a surveyor (the date of the survey is not given) ran a line and it was discovered that the defendants' fence extended a quarter of a mile too far south; that it is wood land and unoccupied.
The evidence upon the part of the defendants tended to establish the following facts:
The plaintiff was recalled for further cross-examination and testified that the suit which he had formerly instituted in New Madrid County against the same defendants involved the same property...
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