Scott v. Royston

• Decision Date: 27 November 1909
• Citation: 123 S.W. 454,223 Mo. 568
• Parties: JOSHUA A. SCOTT et al., Appellants, v. CHARLES T. ROYSTON et al
• Court: Missouri Supreme Court

123 S.W. 454

223 Mo. 568

JOSHUA A. SCOTT et al., Appellants, v. CHARLES T. ROYSTON et al

Supreme Court of Missouri, First Division

November 27, 1909

Appeal from Daviess Circuit Court. -- Hon. Frank Sheetz, Special Judge.

Reversed and remanded.

H. A Kerr for appellants.

(1) That a judgment may be valid and binding, the court rendering it must have jurisdiction of the persons of the parties involved. A judgment without jurisdiction is void. Wyth v. Lang, 54 Mo.App. 147; Caffery v. Mining Co., 95 Mo.App. 180. Judgment void unless party is properly brought into court and made a party to the suit. Trust Co. v. Railroad, 195 Mo. 669; Graton v. Land and L Co., 189 Mo. 322; Turner v. Gregory, 151 Mo 100; Vincent v. Means, 184 Mo. 327; Spars v. Land Co., 186 Mo. 656; Gillingham v. Brown, 187 Mo. 181; Evarts v. Lumber and Mining Co., 193 Mo. 433. (2) In a valid judgment the court must have jurisdiction of the subject-matter of the action. The circuit court has no jurisdiction over the sale of land of a deceased person to pay his debts. Marcy v. Stark, 116 Mo. 481; Camden v. Plain, 91 Mo. 129; French v. Stratton, 79 Mo. 560; Priest v. Spier, 96 Mo. 111; Dodson v. Scroggs, 47 Mo. 285. Equity has no jurisdiction where there is a plain, adequate and complete remedy at law. Matson v. Pearson, 121 Mo.App. 129. "Jurisdiction over all probate matters, pertaining to probate business, is taken out of the jurisdiction of the circuit courts and vested in the probate courts." Strode v. Gilpin, 187 Mo. 391. (3) The appearance of an attorney for a party in Missouri is only prima-facie and can be rebutted and shown to be unauthorized. Patterson v. Yancy, 97 Mo.App. 695; Marx v. Fore, 51 Mo. 70; Talbot v. Roe, 171 Mo. 134. (4) Nearly all courts of last resort, hold that judgment procured by fraud or collusion or by the unauthorized appearance of an attorney is void and may be so shown by evidence dehors the record. Harshey v. Blackmarr, 20 Iowa 161; Shelton v. Tiffin, 47 U.S. 163 (6 How. 163); Critchfield v. Porter, 3 Ohio 518; Reynolds v. Fleming, 30 Kan. 106; Masten v. Gray, 19 Kan. 458; Lawrence v. Jarvis, 32 Ill. 304; Arnott v. Webb, 1 Dill. 362; Price v. Ward, 1 Dutch. 225; Pennywit v. Foote, 27 Ohio St. 600; Dobbin v. Dutree, 39 Ga. 394; Wiley v. Pratt, 23 Ind. 628; Weatherby v. Weatherby, 20 Wis. 526; Ferguson v. Crawford, 70 N.Y. 253; Clark v. Little, 41 Iowa 497; Hoffman v. Hoffman, 46 N.Y. 30; Kerr v. Kerr, 41 N.Y. 272; Borden v. Fitch, 15 Johns. 121; Leith v. Leith, 39 N.H. 20; Pollard v. Wegener, 13 Wis. 569; Thompson v. Whitman, 18 Wall. 457; Knowls v. Gaslight Co., 19 Wall. 58; Rape v. Heaton, 9 Wis. 328; Aldrich v. Kinney, 4 Conn. 380; Starbuck v. Murry, 5 Wend. 148; Shumway v. Stillman, 6 Wend. 447; Hall v. Williams, 6 Pick. 232; Carleton v. Bickford, 13 Gray 191; Pollard v. Baldwin, 22 Ia. 328; Norman v. Cobb, 15 Tex. 500; Elliott v. Piersoll, 1 Pet. 328; Hickey v. Stewart, 3 How. 750; Williamson v. Berry, 8 How. 495; Webster v. Reid, 11 How. 437. (5) The sale of land of a deceased person to pay his debts has been confided by law to our probate courts and they have exclusive jurisdiction over the administration and settlement of estate of deceased persons. Matson v. Pearson, 121 Mo.App. 128; Marcy v. Stark, 116 Mo. 481; Camden v. Plain, 91 Mo. 129; Robbin v. Boulware, 190 Mo. 33; French v. Stratton, 79 Mo. 560; Priest v. Spier, 96 Mo. 111; Titterington v. Hooker, 58 Mo. 593; Pearce v. Calhoun, 59 Mo. 274; Reed v. Robertson, 45 Mo. 580; Coner v. Ward, 47 Mo. 289; In re Powell Estate, 157 Mo. 151; Constitution, sec. 3, art. 16, and R. S. 1899, sec. 1753. Our statute, section 1674, divides circuit court jurisdiction into three sections and defines the same: 1st, original exclusive jurisdiction; 2d, original concurrent jurisdiction; 3d, appellate jurisdiction, and control over guardian and administrators is placed under the section of appellate jurisdiction, and even this is limited by our administration law. Miller v. Woodward, 8 Mo. 169; Overton v. McFarland, 15 Mo. 313; Powers v. Blakely, 16 Mo. 439. (6) On the death of a homesteader the homestead descends to and vests a life estate in the widow and an estate for years in the minor children or until each become of legal age. Boyles v. Cox, 153 Mo. 242; Creech v. Childers, 156 Mo. 342; In re Powell's Estate, 157 Mo. 155; Keene v. Wyatt, 160 Mo. 9; Banking Co. v. Brown, 165 Mo. 39; Huffschmidt v. Goss, 112 Mo. 649; Snodgrass v. Cooper, 203 Mo. 295; Hardy v. Atkinson, 136 Mo.App. 595; Stevens v. Stevens, 172 Mo. 24; Rhorer v. Brockhage, 86 Mo. 544; Brewington v. Brewington, 211 Mo. 49; Kochling v. Daniel, 82 Mo. 54. (7) An estate of a deceased person that descends to his widow and minor children cannot be partitioned until the younger child becomes of legal age. Huffschmidt v. Goss, 112 Mo. 649; Stevens v. Stevens, 172 Mo. 24; Rhorer v. Brockhage, 86 Mo. 544; Brewington v. Brewington, 211 Mo. 49; Kochling v. Daniel, 82 Mo. 54; Quail v. Lomas, 200 Mo. 687. (8) A guardian ad litem cannot appear for his minor ward unless the minor is personally served with summons and a judgment on such appearance is void. Smoot v. Judd, 184 Mo. 555; McMurtry v. Fairley, 194 Mo. 512; Gibson v. Chouteau's Heirs, 39 Mo. 536. (9) The heirs cannot be called upon in equity to restore what they never received. Bone v. Tyrrell, 113 Mo. 186. (10) Caveat emptor applies to judicial sales. Stephens v. Ells, 65 Mo. 456; McVey v. McVey, 51 Mo. 46.

John C. Leopard for respondent.

(1) Guardian may appear for wards. R. S. 1899, sec. 4380; Hite v. Thompson, 18 Mo. 461; Smith v. Davis, 27 Mo. 298; Le Bourgeoise v. McNamara, 82 Mo. 189; Payne v. Masek, 114 Mo. 631. (2) Sale may be made by special commissioner. R. S. 1899, sec. 4425. (3) Partition in chancery may be had of an equitable estate. Reed v. Robertson, 45 Mo. 580. (4) Ex parte proceedings in partition may be had and infants may be made plaintiffs. Waugh v. Blumenthal, 28 Mo. 462; Larned v. Renshaw, 37 Mo. 458; Thornton v. Thornton, 27 Mo. 303. In a partition sale where widow is plaintiff and minor children defendants appear by guardian ad litem, and no claim of homestead is set up, passes free title to homestead. Rolf v. Timmereister, 15 Mo.App. 249. Every person having any interest in land sought to be partitioned, whether in possession or otherwise, shall be made a party to such petition. R. S. 1899, sec. 4376. The court did not err in striking out the testimony of Rebecca J. Sloan, Joshua A. Scott, and R. M. Barnett, for the reason that the decree rendered by the circuit court of Daviess county, imparts verity and cannot be attacked in a collateral proceeding like this. Livingston v. Allen, 83 Mo.App. 294; Myers v. McRay, 114 Mo. 377; Cochran v. Thomas, 131 Mo. 258; McDonald v. Frost, 99 Mo. 44; Yates v. Johnson, 87 Mo. 213.

OPINION

WOODSON, J.

The plaintiffs brought this suit in the circuit court of Daviess county to determine title to the lands described in the petition. The court found for the defendants and entered judgment accordingly, from which plaintiffs duly appealed.

The facts are few and simple, and are substantially as follows:

One Andrew J. Scott in his lifetime owned and occupied the land in controversy as a homestead, which contained one hundred and seven acres, not exceeding in value the sum of $ 1500. There was a school fund mortgage for the sum of $ 65.35 existing against fifty acres of the homestead, bearing six per cent interest. A judgment for $ 229 had been rendered against Scott, which was claimed to be a lien upon all of said homestead.

Said Scott died September 9, 1881, intestate, in said county, leaving surviving him his widow, Mary Ann Scott, two adult children, Joshua A. Scott and Rebecca Jane Sloan, and the following minor children, namely, Robie, Ruth, John, Dora, Effie and Clarence Scott. These children of Andrew J. Scott are plaintiffs in this case, and claim title to the land in controversy as his heirs at law. The defendant, Charles T. Royston, claims title thereto through A. D. Scott, who purchased said land at the sale to be presently mentioned.

On February 3, 1885, John A. Dunn was by the probate court of Daviess county duly appointed guardian (but not curator) of the estates of Robie, Ruth, John, Dora, Effie and Clarence Scott, the minor children of said Andrew J. Scott.

On February 4, 1885, the widow, Mary Ann Scott, Joshua Scott and Rebecca J. Sloan, the adult children of Andrew J. Scott, and Isaac N. Goodvin, the owner of the judgment before mentioned, and all of said minor children, by their guardian, John A. Dunn, as ex parte plaintiffs, filed in the circuit court of said county a petition, of which the following is a copy (formal parts omitted):

"1st Plaintiff states that the above named plaintiffs, Robie Scott, Ruth Scott, John Scott, Dora Scott, Effie Scott and Clarence Scott are the sole minor heirs at law, and Joshua Scott and Rebecca J. Sloan are the sole adult heirs at law, and Mary Ann Scott is the widow, of Andrew J. Scott deceased, who died on the 9th day of September, 1881.

"2d. That at the time of the death of Andrew J. Scott he was seized, possessed and occupied as a homestead the following described real estate situate in Daviess county, Missouri, to-wit: The west half and the southeast quarter of the northeast fractional quarter of section nine, township sixty, of range twenty-seven, containing 105 acres, and not exceeding in value the sum of fifteen hundred dollars. That the said homestead at the death of the said Andrew J. Scott passed to and vested in said widow and said minor children as is provided by statute concerning homesteads.

"3d. That said Clarence is four years old, the said Effie is six years old, and the said Dora is about eight years old, and the said John is about ten...