O'Reilly v. Nicholson

• Decision Date: 31 October 1869
• Citation: 45 Mo. 160
• Parties: MICHAEL B. O'REILLY et al., Appellants, v. ISAAC NICHOLSON and ISAAC WHITE, Respondents.
• Court: Missouri Supreme Court

45 Mo. 160

MICHAEL B. O'REILLY et al., Appellants,

v.ISAAC NICHOLSON and ISAAC WHITE, Respondents.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Hitchcock & Lubke, for appellants.

I. The recitals in the decree, being upon a matter collateral and incidental to the issues, are not conclusive. (15 N. H. 17; Minor v. Walter, 17 Mass. 237; 2 Am. Lead. Cas. 792-813.)

II. A decree is not constructive notice to any persons who are not parties to it. (1 Sto. Eq., §§ 405-407.)

III. The decree itself, so far as it undertook to convey the two-ninths interest of Mrs. Lount and Julia White to the other parties to that suit, was void for want of jurisdiction. (2 Smith's Lead. Cas. 676-7; King v. Chase, 15 N. H. 9.)

IV. This is not a case of election. (2 Story's Eq. § 1086.)

Garesche & Mead, and Mortell, for respondents.

I. A purchaser pendente lite was bound by the decree. (2 Sugd. on Vendors, 104, § 19; 1 Story's Eq. 393, § 406; Kern v. Hazelrigg, 11 Ind. 446; Harrington v. Slade, 22 Barb. 166.)

II. The land court had jurisdiction over both of the parties and of the subject-matter. (2 R. C. 1855, p. 1592, § 2; Buchanan v. Dersaimet, 21 Mo. 585; Wohlien v. Speck, 22 Mo. 310; Segond v. Garland, 23 Mo. 547; City, to use of Lohrum, v. Coons, 37 Mo. 44; Patrick v. Abeles, 27 Mo. 184; Mulloy v. Lawrence, 31 Mo. 583.)

BLISS, Judge, delivered the opinion of the court.

The plaintiffs bring ejectment against defendants, claiming two-ninths in a twenty-acre tract of land in St. Louis countv, as heirs of John O'Reilly, deceased.

The record shows that Isaac White, father of defendant, died in 1841, and was the owner of the land. He left it by will to Sophia, his wife, for life, remainder to his children in fee, who, during her life, all released to her except Virginia, who became the wife of Samuel S. Lount, and Julia S. In 1858, Sophia White, the widow, died, having made a will by which she gave $800 each to said Virginia and Julia, to be paid at once, and $1,000 each, in addition, to be paid on the settlement of her estate; and she directed the sale of her property, and division of its proceeds among six of the other children, naming them. Virginia and Julia each received their $800, according to the will, and soon after their mother's decease, in June, 1862, W. L. Thirwell, executor of the will, presents to the St. Louis Land Court his petition setting forth the will, the partial settlement of the estate, describing all the real estate, including the twenty acres, as belonging to said Sophia at her death, averring that said Virginia (then married to Samuel S. Lount) and Julia are entitled to $1,000 each, not yet paid them, and that the balance of the estate belongs to six of the other seven children, naming them, and asks judgment that the property belonging to the estate be sold for the purpose of carrying out the will, and also asks for partition. Samuel S. Lount, Virginia Lount, and Julia White answer and deny that said Sophia owned said real estate, but aver that two-ninths of it belonged to said Virginia and Julia, as heirs of their father, the said Isaac White. The record shows none of the proceedings in the case until the decree which was rendered in May, 1863, only as the decree, which is long, refers to evidence submitted. The decree, after describing all the real estate in full, finds, among other things, that the said Julia and Virginia and said Sophia believed that she, said sophia, the mother, owned in fee the entire estate, with full power to dispose of it, and that she intended to give said Virginia and Julia the said $1,800 each, “as their full share and just proportion of the real estate,” as well as personalty. It also recites that the personal estate is insufficient to pay the $1,000 each due said Julia and Virginia; and, after further reciting that they appear in open court and relinquish all title and claim to the real estate, orders that all the interest had by them at the commencement of the suit or now, be divested out of them and invested in the other heirs, subject to the payment of said $1,000 each; and that the executor proceed to sell sufficient of said real estate to pay the $2,000, etc., and make report of his proceedings, etc. At the same term, and two days after the decree, and while the matter was pending, the said Virginia and Julia “filed in said suit” their release of their interest in the estate, except so far as it is chargeable with the payment of their legacies. The decree was entered under date of May 21, and the release filed May 23; and the record shows further that on the 22d of May, Samuel S. Lount and his wife, the said Virginia, and said Julia, for the consideration of ninety-nine dollars, executed to one Bernard a deed of their interest of two-ninths of said twenty acres of land. The deed was acknowledged by John S. Bowman and filed for record, according to the recorder's certificate, at half-past 9 o'clock, May 23. Bowman testifies that he, and not Bernard, was the real purchaser, and that the consideration was a credit upon Lount's account for the ninety-nine dollars; and afterwards Bernard deeded to him, and he sold to John O'Reilly for $600. The plaintiffs, as his heirs, bring this suit. The judgment below was for the defendants.

The case seems to have turned upon the validity and legal effect of the decree, and upon the notice to the plaintiffs of its existence. First, plaintiffs' counsel contend that the decree itself was a nullity, and that it can hence be impeached collaterally. But the decree is not a nullity. It is true the petition hardly lays the foundation for the relief given; but the court had jurisdiction both of the subject-matter of the petition and the subject-matter of the decree. The object of the petition was for authority to raise money out of the land to pay the legacies, and the court added to the order sought, substantially, an election by the legatee to take the legacy and release the land, with an order carrying out that election. The court had a right to do both; and, if the petition did not lay a foundation for both, the decree is simply erroneous, but can not be impeached collaterally. A judgment, though informal, even to the extent of granting a relief not contemplated in the petition, when parties are before the court and the relief is within its jurisdiction, is not a void proceeding.

Let it be considered, as the plaintiffs' counsel claims, that the paper filed had not the requisites of a conveyance, still it was evidence of an election, and their appearance in court and the declaration there as recited in the decree was also an election, and the doctrine of election applies to just such a case as this. The record does not show what evidence was before the court, but there was enough to satisfy it that the testatrix had devised the interest of Virginia and Julia in certain lands to other members of the family, and had also devised to these, then...