Pullen v. Hart
| Decision Date | 14 March 1922 |
| Citation | 238 S.W. 437,293 Mo. 61 |
| Parties | TIMOTHY PULLEN, CAROLINE REYNOLDS and ELLEN RANSDALE v. R. B. HART, LINN HUNTER, Trustee, and WILLIAM HUNTER; WILLIAM HUNTER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. W. S. C. Walker, Judge.
Reversed and remanded.
Ward & Reeves for appellant.
(1) The court erred in admitting incompetent, immaterial and irrelevant evidence. Development Co. v. Clayton, 219 S.W. 601; Bell v. Brinkman, 123 Mo. 270. (2) A court cannot partition land unless all the heirs and all parties interested in the land are before the court. Even the petition must show they have all the heirs in court, and every person having interest in such premises must be made a party, and in the trial if it is shown that all parties are not interested then judgment cannot be had. Secs. 1997, 1998 R. S. 1919; Hills v. Rule, 121 Mo. 248; Johnson v. Johnson, 170 Mo. 34; Rogers v. Miller, 48 Mo. 378; Dameron v. Jamieson, 71 Mo. 97; Robertson v. Brown, 187 Mo. 452; Troll v. St Louis, 257 Mo. 721; Harper v. Hudgin, 211 S.W 63. And this defect of parties is never waived. Hyles v. Rule, 121 Mo. 248. (3) The judgment and finding of the court is wrong, ordering partition, because plaintiffs have no title. (a) Joint tenancy being in issue, plaintiffs must show they and defendants hold the land as tenants in common. It is only when the land is held in joint tenancy, tenancy in common, or coparcenary that partition will lie under our statute, and unless such holding be established there is an end of the partition. Forder v. Davis, 38 Mo. 115. (b) Again, parties seeking partition must have either actual or constructive possession of the land sought to be partitioned. Chamberland v. Waples, 193 Mo. 96. (c) Plaintiffs, having no actual possession must rely upon constructive possesion before they can partition, and constructive possession depends upon plaintiffs having title. And plaintiffs, having no interest in the land, cannot maintain an action for partition. Hyles v. Rule, 49 Mo.App. 630. (d) Plaintiffs showed no title in themselves to this land; for where they have no possession, and title is denied, "the plaintiff must prove his interest in the land beginning with the Government." In other words, if he relies upon a paper title, such paper title must be complete and adequate. Nall v. Conover, 223 Mo. 488. (e) Plaintiffs, however, might show title beginning with a common source; but in this case, where plaintiffs claim under one source of title, and defendants claim under that and two or more other sources of title, then there is no common source of title. Nall v. Conover, 223 Mo. 477; Bishop v. Bloker, 235 Mo. 617; Hunter v. Land & Coop. Co., 246 Mo. 135. (f) The after-acquired title of Hunter through sheriff's deed of April 12, 1917, would not inure to the benefit of plaintiffs, who were not holding under Hart. Development Co. v. Clayton, 219 S.W. 601; Dunavant v. Bloker, 188 Mo.App. 90; Lockwood v. Meade, 71 Kan. 741; Powell v. Crowe, 204 Mo. 489. (g) Plaintiff's ancestors never had any title and therefore plaintiffs never inherited any. Maynor v. Land & Tbr. Co., 236 Mo. 722. (h) The tax title obtained by William Hunter on April 12, 1917, conveyed the title of R. B. Hart, Silas Cummings, Horace S. Stephens, John M. Cummings, et al. The suit was also against the unknown heirs, unknown devisees, etc., of Silas Cummings, Horace S. Stephens and John M. Cummings. The record owner of this land was the two Cummings and Stephens. They were sued as non-residents and also suit against their unknown heirs, etc. And suit may be prosecuted in that way and the judgment is good. Organ v. Bundell, 184 S.W. 102; Peltier v. St. Louis, 237 Mo. 168; Hambel v. Laury, 264 Mo. 168; Schmitzer v. Rankin, 192 Mo. 35; Simonson v. Dolan, 114 Mo. 176; Sec. 12945, R. S. 1919. (i) Appellant William Hunter was not bound by the judgment had quieting title brought by these plaintiffs against R. B. Hart. Neither was he bound by the interlocutory judgment in the partition suit by these plaintiffs against R. B. Hart, and neither was he bound by the judgment of R. B. Hart against these plaintiffs in the quiet-title suit, for the reason, in neither of those cases was William Hunter a party. No one is barred by a judgment unless made a party to the suit. Forder v. Davis, 38 Mo. 116; Bell v. Brinkman, 123 Mo. 27; Development Co. v. Clayton, 219 S.W. 601.
N. C. Hawkins for respondent.
(1) This (an action in partition under the statute without equitable issues) is an action at law. Franke v. Franke, 213 S.W. 41. (a) At the close of the plaintiffs' evidence in chief, the defendant William Hunter offered a demurrer to the evidence which was refused and he saved his exception. But he did not stand on this demurrer and waived the same, in that, after it was refused he offered evidence in his own behalf. Riley v. O'Kelley, 250 Mo. 660. (b) Moreover, defendant failed to assign this action of the court as error in his motion for a new trial, wherefore the same is not now for review. Lusk v. Commission, 210 S.W. 72; Maplegreen v. Trust Co., 237 Mo. 362-63. (c) Defendant did not by demurrer or answer or orally at the trial sugest to the court that any party not a party to the action might be interested in the property involved herein. Hence the point that all interested parties are not before the court is waived and comes too late. Sanders v. Kaster, 22 S.W. 133. (d) Defendant failed to offer a demurrer to the evidence at the close of all the evidence. This is an admission that there was substantial evidence, if competent, to sustain the issues the plaintiffs were required to sustain. "It is a theory defendant cannot be allowed to take back on appeal." Lumber Co. v. Neidermeyer, 187 Mo.App. 186; Heller v. Ferguson, 189 Mo.App. 492. (e) Moreover, this court will not, in the absence of a demurrer to the evidence at the close of the case, review the evidence to ascertain whether or not it was substantial. Dooden v. Woolen Mills, 216 S.W. 534. (f) A jury was waived. The defendant asked no declarations of law or finding of facts and none was given. The finding of the judge sitting as the trier of the facts is therefore conclusive, is based on competent evidence (the evidence having been admitted to be substantial by failing to offer a demurrer). Trust Co. v. Hill, 223 S.W. 434; Reader v. Williams, 216 S.W. 738; Hunter v. Weil, 222 S.W. 472. (2) If Hart owned any title by inurement the judgment of August 10, 1917, after the possible inurement was conclusive as to him. If Hunter was the owner of the true title from Hart, the judgment of March 11, 1915, was conclusive as to him (as privy to Hart). Case v. Sipes, 217 S.W. 309; State ex rel. v. Patton, 271 Mo. 559; Lukens v. Ins. Co., 269 Mo. 574; Hutchinson v. Patterson, 226 Mo. 182-83-84; Armor v. Frey, 253 Mo. 475; 23 Cyc. 1253, sec. 5, b; 1256, f; 1257 (III) (A); Sugg v. Duncan, 238 Mo. 422. (a) These judgments foreclosed the issue of title both as to Hart and as to Hunter and prevented them side-stepping the issue on trial. If the true paramount title was in Cummings, Stephens and Cummings or any one else except Hart at the time of the tax sale that title inured to Hart under Hunter's warranty deed of March 3, 1911, and Sec. 2266, R. S. 1919, and the judgment of March 3, 1915, and August 10, 1917, after the tax deed of April 12, 1917, concluded Hart. (3) The three judgments show conclusively that the issue of title between the parties hereto is not a proper subject of further litigation and has been improperly injected and forced into the case by the appellant, so that the plaintiffs were not required to show a title in themselves or a title by common source. The subject-matter of the three former judgments was title, the same as here. However, if the element of res adjudicata be discarded and plaintiffs thrown upon their proof of title or common source, it is apparent they were not required to establish a conclusive or invulnerable case of either title or a common source. At the utmost all they could be required to do would be to establish a prima-facie case of one or the other, by evidence or evidence coupled with presumptions of law. Brooks v. Roberts, 220 S.W. 13; State ex rel. v. Ellison, 268 Mo. 243. (4) Where title is properly drawn in issue in a strictly legal action, unless a common source of title be assumed, admitted or shown, the plaintiff must show a paper title or title by limitations in himself or those under whom he claims; that is, he must adduce substantial evidence tending to show one or the other of such facts. In this case it is admitted that plaintiffs did adduce such substantial evidence in that defendant did not offer a demurrer to the evidence at the close of the case. Dooden v. Woolen Mills, 216 S.W. 524. (5) The tax deed of April 12, 1917, is a nullity. It was a farce. It was a perversion of the processes of the law to improper purposes. Under a proper proceeding defendant might be adjudged entitled to reimbursement from plaintiffs for their pro rata part paid out in good faith in quieting the title in this way, but he may not base a title on titleless claim which he extinguished by a fiction of law in the payment of his own tax. Kohle v. Hobson, 215 Mo. 213; 38 Cyc. 40, sec. D; p. 48, sec. 2.
This is a suit in partition. The subject of partition is eighty acres of land in Pemiscot County. The petition is an ordinary one in partition, averring, however, that the plaintiffs are only entitled to one-eighteenth interest each in the lands, which interests had been fixed by judgment in a previous suit. They also averred that partition in kind could not be made without great prejudice to their interests, and asked that the land be sold and the proceeds...
To continue reading
Request your trial