Roberts v. St. Louis Merchants' Land Improvement Co.

• Decision Date: 05 February 1895
• Parties: Roberts v. St. Louis Merchants' Land Improvement Company, Appellant
• Court: Missouri Supreme Court

29 S.W. 584

126 Mo. 460

Roberts v. St. Louis Merchants' Land Improvement Company, Appellant

Supreme Court of Missouri, First Division

February 5, 1895

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

""John H. Overall and ""Lubke & Muench for appellant.

(1) The court, by its decree in the partition case, found that defendants were all "duly notified" in accordance with its previous order of publication. This recital is not disputable collaterally. So held in the following cases ""Latrielle v. Dorlegne, 35 Mo. 233; ""Lenox v. Clark, 52 Mo. 116; ""Freeman v. Thompson, 53 Mo. 183; ""Rumfeldt v O'Brien 57 Mo. 569; ""Brawley v. Ranney, 67 Mo. 280. (2) The partition statute then in force authorized proceedings against unknown owners and provided for their being notified by publication. G. S. 1865, page 612, secs. 5, 7; see, also, sec. 16, page 655, G. S. 1865. (3) Here the plaintiff adopts the partition decree in part, and is, therefore, claiming subsequent to it. ""Forder v. Davis, 38 Mo. 107; ""Hart v. Steedman, 98 Mo. 452. (4) When the partition case was instituted and the sale was had under which the defendant now claims, the General Statutes of 1865 controlled. They provided as follows: "That all costs and charges incurred in proceedings for partition should be taxed against all parties interested in proportion to their respective rights and interests therein." Sec. 56, p. 616. See, also, ""Cooper v. Garesche, 21 Mo. 151. That a fee-bill for such costs might issue against the parties liable. Sec. 22, p. 689. That execution issue for such costs. Sec. 32, p. 691. That an attorney's fee, not exceeding $ 100, should be allowed to the attorney bringing the suit, the same to be taxed and paid as other costs in the case. Sec. 55, p. 616. That appeals and writs of error to review the final judgments in partition should lie as in other suits. Sec. 58, p. 617. That all persons having an interest in the premises should be made parties. Sec. 4, p. 611. (5) When one tenant in common has alone occupied the common property, this is not sufficient to make him liable for rents and profits. ""Dodd v. Barry, 15 Mo.App. 595. (6) The court erred in its instructions given for plaintiffs.

""Seddon & Blair for respondent.

(1) The judgment for costs in the partition suit of Jennings against unknown heirs of Ashley was a personal one, and the service was by order of publication against such unknown heirs of William H. Ashley, deceased. There having been no personal service, there could be no valid proceedings under that suit resulting in an adjudication that the property of the unknown heirs should be sold to satisfy the bill of costs incurred in that suit or to satisfy any other personal demand. The proceedings, therefore, to sell the land of the unknown heirs of Ashley were void. Gen. Stat. 1865, sec. 22, p. 689; sec. 56, p. 618; sec. 32, p. 691; R. S. 1889, sec. 2936; ""Pennoyer v. Neff, 95 U.S. 714; ""Foote v. Sewall, 81 Tex. 659; ""Fithian v. Monk, 43 Mo. 502; ""Janney v. Spedden, 38 Mo. 395. (2) After two years and a half elapsing after the term at which the final judgment in the partition proceedings, Jennings v. unknown heirs of Wm. H. Ashley, deceased, was entered the court had no jurisdiction founded on the original service, whether personal or constructive, to make an order of sale of the property of the defendants to satisfy a demand for costs or any other personal demand. Freeman on Judgments, sec. 143; ""Hoffelman v. Franke, 96 Mo. 533; ""Parker v. Johnson, 22 Mo.App. 516; ""George v. Meddough, 62 Mo. 549. (3) After an ouster a cotenant is entitled to damages against his co-owner for said ouster and retention of the property. ""Childs v. Railroad, 117 Mo. 414. (4) The record shows that the counsel for appellant has made an oversight in claiming that judgment for the respondent should have been for two eighths, instead of two sixths, of the property described in the judgment. The property sued for is an undivided interest in the property set off to the "Unknown Heirs of Wm. H. Ashley, deceased," in the partition suits of Jennings. There were six branches of those unknown heirs. Plaintiff, representing in his recovery two of those branches, is entitled to recover by sixths and not by eighths.

OPINION

Macfarlane, J.

The suit is ejectment to recover a tract of land in the city of St. Louis. The answer is a general denial. Both parties claim title under William H. Ashley, deceased.

The record of a suit for partition of a larger tract, of which that in question is a part, was first read in evidence. The petitioners in said suit were Robert H. Jennings and William H. Jennings, who claimed, each, an undivided one fourth of the land as grantees of certain of the heirs of the said Ashley and the defendants were others of his heirs. The petition charged that there were other heirs of the said Ashley who had an interest in the land, who were unknown and whose interests could not be described or names given. An order of publication was made as to these unknown parties. The court found that "said defendants, although duly notified and solemnly called, come not but make default," and judgment was rendered against them by default. Commissioners were thereupon appointed who afterward made report setting off to said unknown heirs the land in question. On June 7, 1870, the following judgment was entered of record in that case:

"Now at this day it appearing to the court that the report heretofore filed of the commissioners in this cause has laid over for more than five days under the rule of this court, and no objection to the confirmation thereof being made is, therefore, on motion of plaintiff's attorney, ordered and adjudged by the court that said report be, and the same is, in all things, hereby confirmed and held as firm and effectual forever. The sum of $ 100 is allowed W. H. Clopton for professional services herein."

On November 26, 1872, a motion by said petitioners was filed. This motion recited substantially that said partition suit had been brought; that the defendants were nonresidents; that "notice was had on the defendants by publication in the 'Missouri Republican;'" that in June, 1870, the property in litigation was allotted to the defendants as "the heirs of Wm. H. Ashley;" that the sheriff had collected of plaintiffs their proportion of costs, and that a fee bill for costs against the defendants had been returned nulla bona. Plaintiffs, therefore, petitioned for an order of sale of said property, or of so much thereof as would satisfy said costs. Upon this motion the following judgment was entered:

"The plaintiffs, by motion in open court, having prayed for a sale of so much of defendant's property as might be necessary to meet the costs of a suit in partition assessed against them, it having appeared from the sheriff's return on the fee bill number 14,426, issued by the clerk of the circuit court of St. Louis county, that they have no personal property within the jurisdiction of the court, it is hereby ordered and decreed that the sheriff of St. Louis county proceed to advertise and sell so much of the following described real estate situate in the county of St. Louis and state of Missouri, to wit: (Here follows a description of the property in litigation) as may be necessary to pay the costs charged against them in said partition suit, and the costs of this proceeding, and that the surplus, if any, of the proceeds of the sale hereby ordered, be reported to this court, and invested for the benefit of the above defendants. And it is further ordered that the purchase money be paid in cash at the day of sale."

The land was sold under execution upon this judgment and the petitioner, William H. Jennings, became the purchaser for $ 250 and obtained a sheriff's deed conveying to him the land. Defendant claims title through this sheriff's sale and deed.

The foregoing evidence was introduced by plaintiff in order to prove a common source of title.

The evidence of plaintiff, in proof of his title, showed that William H. Ashley died in 1835, seized of the entire tract known as the "old reservoir," leaving his widow and two sisters, Martha and Nancy, who were his only heirs. The widow took one half of the estate, which was set off to her, in a previous partition, leaving to the sisters and their heirs the tract divided in the partition suit brought by Jenkins. Martha conveyed her interest to the said petitioner Robert H. Jennings. Nancy married Francis Steger, who died in 1835. Nancy Steger died in 1845, intestate, leaving surviving her as her only heirs at law, four sons, Wade Steger, Jefferson Steger, Scott Steger and William Francis Steger, and three daughters, Ann Steger (spinster), Elizabeth Steger (spinster), who died May, 1891, Susan H. Steger (who married in 1841 with William H. Palmore, who died March, 1882), and the children of a deceased son, Giles Steger, to wit: William Ashley Steger, Wade M. Steger, Susan S. Judd, Martha M. Morton and Alexander Steger (who died about July, 1863, intestate and unmarried). Wm. Francis, son of Nancy Steger, deceased, died, intestate, forty years ago, leaving surviving him a widow, who died in 1864, and one descendant, his only heir at law, Sarah E. Hill, who married Wm. F. Hill, November 16, 1866. Elizabeth Steger died May, 1891, leaving a will, and as her devisees, Wm. Francis, Edward Scott, Wade M., John D. and Marth Ann Palmore and Susan H. Palmore and Bettie M. Stokes, infant, described in, but not named in, the will. Plaintiff then introduced evidence showing that Susan H. Palmore (widow), owning one sixth of the property in dispute; Sarah E. Hill and husband, owning one sixth; Wade M. Steger, owning one twenty-fourth, and the devisees of ...