Rupp v. Molitor

• Decision Date: 30 July 1928
• Docket Number: No. 26738.,26738.
• Citation: 9 S.W.2d 609
• Parties: MARY RUPP v. WILLIAM B. MOLITOR, JOHN W. MOLITOR and MARY MOLITOR, His Wife, LENA WEINGART and EDWARD J. WEINGART, Her Husband and GEORGE MOLITOR, Appellants.
• Court: Missouri Supreme Court

9 S.W.2d 609

MARY RUPP v. WILLIAM B. MOLITOR, JOHN W. MOLITOR and MARY MOLITOR, His Wife, LENA WEINGART and EDWARD J. WEINGART, Her Husband and GEORGE MOLITOR, Appellants.

No. 26738.

Supreme Court of Missouri. Division One.

July 30, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Franklin Miller, Judge.

AFFIRMED.

Conway Elder and Sievers & Hartmann for appellants.

(1) The granting of the power to plaintiff to convey the fee did not change her character as a life tenant. (a) The filing of the partition suit by plaintiff was not an execution of her power, as donee, to convey the fee granted to her under the will of her husband. 31 Cyc 1088 (C), 1089 (2-B); Garland v. Smith, 164 Mo. 1; Evans v. Folks, 135 Mo. 397; Lewis v. Pitman, 101 Mo. 281; Russell v. Eubanks, 84 Mo. 83; Rubey v. Barnett, 12 Mo. 1. (2) Plaintiff, being a life tenant, could not maintain an action in partition. Gray v. Clement, 286 Mo. 100, 296 Mo. 497: Stockwell v. Stockwell, 262 Mo. 671; Carson v. Heeke, 282 Mo. 580; Atkinson v. Brady, 114 Mo. 200: Throckmorton v. Pence, 121 Mo. 50; Stewart v. Jones, 319 Mo. 614. (3) Plaintiff failed to prove that there was service in the partition suit on Lena Weingart, John Molitor and Gertrude Molitor. Gray v. Clement, 296 Mo. 497: Campbell v. Laclede Gas Co., 84 Mo. 352; Wright v. Hink, 193 Mo. 130.

Frank X. Heimenz for respondent.

(1) Respondent as tenant for life in an undivided one-half interest was entitled to partition of the real estate in controversy against appellants and her children in remainder; as such tenant for life she was a cotenant with appellants. Sparks v. Clay. 185 Mo. 393; Hollis v. Watkins, 181 Ala. 248; Wheat v. Wheat, 190 Ala. 461; Tower v. Tower, 141 Ind. 223; McEachern v. Gilcrist, 75 N.C. 196; Carmeal v. Lynch, 91 Va. 114; Palethorp v. Palethorp, 194 Pa. 408; Fitts v. Craddock, 144 Ala. 437; McQueen v. Turner, 91 Ala. 273; Gayle v. Johnson, 80 Ala. 395: Shaw v. Beers, 84 Ind. 528; Holmes v. Fulton, 193 Pa. St. 270: Korh v. Stege, 192 Ky. 633; Weedon v. Power, 202 Ky. 542: Nitz v. Widmann, 106 Neb. 736; Mussey v. Sanborn, 15 Mass. 155; Craddock v. Smythe, 30 Ky. Law Rep. 455; Turley v. Turley, 193 Ky. Law Rep. 153; Freeman on Cotenancy and Partition (2 Ed.) sec. 455. (2) Service of a summons upon defendants Lena Weingart. John Molitor and George Molitor appears from the whole record in the partition suit, notwithstanding a part of the return of service of the summons was lost and the file mutilated. Adams v. Cowles, 95 Mo. 501. (3) Appellants upon attaining their respective majorities accepted their respective distributive shares in the proceeds of the sale of the land in partition from their guardian, which moneys were retained by defendants and who are therefore estopped to assert title to the land in controversy. Landis v. Overton, 293 S.W. 371; Bogart v. Bogart, 138 Mo. 419; McClanahan v. West, 100 Mo. 323; Meddis v. Kenney, 176 Mo. 200; Fischer v. Sickmann, 125 Mo. 165. (4) The circuit court is a court of general jurisdiction proceeding according to the course of the common law; its proceedings are entitled to every presumption of regularity and correctness; its jurisdiction is presumed until the contrary is made to appear from its own record. Nothing shall be intended to be out of its jurisdiction, but that which expressly appears to be so. It is the first duty of any court to determine whether or not it had jurisdiction in point of fact and it will be presumed that the court did determine it had jurisdiction in point of fact until the contrary is made to appear from its own record. Adams v. Cowles, 95 Mo. 501; McClanahan v. West. 100 Mo. 309; Buddecke v. Ziegenhein, 122 Mo. 239; State v. Hunter, 171 Mo. 435; Meddis v. Kenney, 176 Mo. 200; Gill v. Camp, 209 Mo. App. 71; Kirkman v. Steveson, 210 Mo. App. 386; Viehman v. Viehman, 298 Mo. 362. (5) One questioning the jurisdiction of a court of general jurisdiction has the burden of establishing by the record of the court whose jurisdiction is attacked the lack of jurisdiction. Buddecke v. Ziegenhein, 122 Mo. 244.

GANTT, J.

Suit to quiet title to the following described land:

"A part of lot twelve (12) as laid down on the plat of the division of the Lindell estate by commissioners in Gratiot League Square, more particularly described as beginning at a stone in the southwest corner of lot twelve (12), thence north six (6) chains and thirty-four (34) links to the south of Clayton road (now Clayton avenue), thence castwardly along the south line of Clayton road twelve (12) chains and twenty-six (26) links to the west line of lot number eleven (11), thence south three (3) chains and twenty (20) links to a stone, thence west ten (10) chains to the place of beginning, containing about four and one-half (4½) acres and bounded on the north by Clayton road, on the cast by lot number eleven (11), on the south by property now or formerly of one Waterman and Berthold, and on the west by lot thirteen (13), and

"A part of lot four (4) of United States Survey 2037, township forty-five (45) north, range six (6) east, as laid down on the plat made in the division of the estate of Peter Lindell and appears on said plat as lot number thirteen (13), more particularly described as beginning at a point at the southeast corner of lot thirteen (13), thence running westwardly eighteen (18) chains, thence north eleven (11) chains and eighty-six (86) links to Clayton road (now Clayton avenue), thence in a southeastwardly direction along the south line of Clayton road eleven (11) chains, thirty-four (34) links, thence south six (6) chains and thirty-four (34) links to the place of beginning, containing nine (9) acres, more or less, and bounded north by Clayton road, east by lot twelve (12), south by property now or formerly owned by one Waterman and others, and west by lot number fourteen (14)."

While the petition and joint answer are conventional, by the reply plaintiff claims title to the above-described land as purchaser at a partition sale, and further claims that each of the defendants, after reaching the age of twenty-one, accepted from their guardian the balance due from the proceeds of the partition sale, and thereby was estopped from claiming an interest in the land, and further claims title by adverse possession. Defendants claim the court was without jurisdiction to partition the land and that the judgment is void and subject to collateral attack. Judgment was for plaintiff, and defendants appealed.

It is admitted that on and prior to January 1, 1896, the plaintiff, Mary Rupp, was the owner of an undivided one-half interest in the above-described land for life or during widowhood with power of sale, and that her children. John, Louisa, Wilhelm and Friederich were the owners of the fee subject to the interest of their mother. It is further admitted that at said time William, John, George and Gertrude Molitor and Lena Weingart, children of Anna Molitor, a deceased sister of Mary Rupp, were the owners of the other undivided one-half interest in the above-described land. It is further admitted that the plaintiff, Mary Rupp, instituted a suit in the Circuit Court of the City of St. Louis against her children and the children of Anna Molitor, returnable to the February term, 1896, to partition the above-described land; that the interests of the parties were correctly set forth in the petition; that the defendants were minors, and the court appointed a guardian ad litem, who filed his written consent to serve as such and filed a joint answer for all the defendants, in which be alleged that the defendants had no knowledge or information sufficient to enable them to form a belief as to the truth of the allegations of the petition, and denied each and every allegation therein contained; that the court found the parties to be interested as set forth in the petition and ordered that the land be partitioned by setting off to the Molitor children their one-half interest in kind and by setting off to Mary Rupp and her children their one-half interest in kind; that commissioners were appointed for that purpose, and they reported that division in kind could not be made, and thereupon the court ordered the land sold and the net proceeds divided among the owners according to their respective interests; that the land was accordingly sold by a special commissioner, and the plaintiff, Mary Rupp, being the highest and best bidder, became the purchaser thereof, and on January 4, 1897, said commissioner executed and delivered to her a deed therefor: that she was in continuous possession of the land from that time to the time of the trial of this cause in the circuit court, claiming to be the absolute owner thereof in fee simple; that the pro rata share of the Molitor children in the proceeds of said partition sale was $2039.27; that Mary Rupp, as provided in the will of her sister, Anna Molitor, was appointed guardian of the Molitor children by the Probate Court of the City of St. Louis; that as guardian she received the pro rata share of said children and controlled and managed the same under the direction of the probate court, and as each of said children became of age she paid to them the balance due from the proceeds of the partition sale, and that the youngest of them became of age on March 10, 1910; and that Gertrude Molitor died intestate May 19, 1906, leaving as her only heirs the defendants herein.

Before considering the question presented it should be noted that Anna Molitor devised to her children her undivided interest in fee in the above-described land and prohibited a partition among them until the youngest child became of age. Her children were bound by this provision, but it could not affect the rights of the owners of the other undivided one-half interest.

I. Defendants contend "that Mrs. Rupp being a life tenant could not maintain an action in partition," and that Jurisdiction. judgment in the partition suit was void...