Shaw v. Gregoire

• Decision Date: 31 October 1867
• Citation: 41 Mo. 407
• Parties: PHILIP and JOHN SHAW, by their Guardian, Respondents, v. CHARLES GREGOIRE, Appellant.
• Court: Missouri Supreme Court

41 Mo. 407

PHILIP and JOHN SHAW, by their Guardian, Respondents,

v.CHARLES GREGOIRE, Appellant.

Supreme Court of Missouri.

October Term, 1867.

Appeal from St. Francois Circuit Court.

This case was before the court in 35 Mo., 342. After the remanding of the case, the pleadings were amended by both parties. This suit was commenced November 7, 1855. The amended petition recited the proceedings in the suit of Gregoire v. Shaw et als., commenced January 12, 1852, for a partition, &c., and alleged that in said suit no process was served on these, then, defendants, who were minors, living in this State, in Scott county; that a guardian ad litem was appointed by the court at the return term, May, 1852, who entered his appearance but filed no answer; that judgment of partition was rendered and order of sale made at the return term, and prayed that as against the present plaintiffs the partition might be set aside and a new partition made. At the trial it was agreed that Philip and John Shaw were residents of this State, living in Scott county with their father. The original record of the partition suit of 1852, of Charles Gregoire v. Philip and John Shaw, the unknown heirs of Joseph Butcher and Joseph Buckholtz et als., defendants, were presented in evidence.

The petition in the original case contained two counts. The first count was for partition of 1200 arpents of land, setting out the shares of the different parties, alleging that Philip and John Shaw were minors, and praying that a guardian ad litem be appointed. The second count was for an account for contribution by defendants for mouey paid by plaintiff Gregoire in and about the common property, and praying that the defendants be required to pay their share or that the sum paid by Gregoire be deducted from the proceeds of sale if the land should be sold. The record showed that a præcipe was given directing an order of publication in the “Ste. Genevieve Plaindealer,” and that an order was issued and published as against all of the defendants but P. and J. Shaw; that W. E. Brady was by the court appointed as guardian ad litem for the infants; that he entered an appearance, and that judgment and order of sale was entered at return term. The court found that the appointment of Brady as guardian ad litem having been made without service of process upon the infants, gave no jurisdiction to the court, and that the original judgment was void as to the infants.

T. T. Gantt, for appellant.

Upon the record the following points are formally made for a reversal.

I. It was decided in 35 Mo., 342, that the judgment in the partition suit in 1852 was regular, valid and binding. This was decided on the authority of the case of Hite v. Thompson, 18 Mo., 461, which was governed by a statute in all respects like that of 1845--§§ 53 & 54, p. 774, R. C. 1845.

II. There is not in the present record anything calling for or justifying a different rule of law from that pronounced by the Supreme Court in this cause in 1864. The question of value, that of the making of a motion to set aside the proceedings, and the failure of the minors to take their money from their guardian, are all beside the matter.

III. The record is otherwise full of error as to the plaintiffs. The petition is defective--§ 1, pp. 765-6, R. C. 1845. The finding is defective, for it fails to dispose of a material issue (26 Mo. 471; 1 Co. Litt. 696); and if the proceedings of 1852 were a nullity, there are no proper parties to the present action.Whittelsey and J. B. Robinson, for respondents.

I. The original suit was commenced in 1852; the practice therefore was controlled by the Acts of 1845, 1847, 1849 (R. C. 1845, p. 765; Practice Act in Chancery, R. C. 1845, p. 835, and Acts of 1847, p. 106), and Practice Act of 1849.

The Acts of 1847, p. 106, allowed suits in partition simply to be commenced by serving a copy and a notice as prescribed in the partition act of 1845, p. 706, or by suit in the ordinary form. The act of February 16, 1847 (Acts 1847, p. 106), left courts of equity their jurisdiction in partition cases.

As the second count in the petition in the case of Gregoire v. Shaw was for an account between tenants in common in the same suit with the partition, a matter of which only courts of equity could take cognizance, and as the practice at law and in chancery were combined by the act of 1849, it is evident that the suit was not for a partition at law under the statute, but for a partition and account together in equity. As to the jurisdiction of courts of equity, see notes to Agar v. Fairfax, 2 Wh. & Tud. L. C. Eq., P. 1. t. p. 503, Am, ed. 1852; Spitts v. Wells, 18 Mo. 468.

II. No process having been served upon the infants, they were not parties to the suit; the court had no jurisdiction to appoint a guardian ad litem for them, and the judgment as to them was wholly void--Hendricks v. McLean, 18 Mo. 32. The practice Act of 1849 makes no provision for suits by and against infants; the practice was therefore left as prescribed by former statutes. A judgment rendered without proper process is void--Bascom v. Young, 7 Mo. 1; Smith v. Ross, 7 Mo. 463; Anderson v. Brown, 9 Mo. 486; Boonville v. Ormond, 26 Mo. 193; Caldwell v. Lockridge, 9 Mo. 362; Janney v. Spedden, et al., 38 Mo. 395; Smith v. McCutchen. Garn., 38 Mo. 415.

III. Until Brady gave bond as guardian, he was not qualified and had no authority to enter appearance--R. C. 1845, p. 774, §§ 53 & 54.

IV. The suit of Gregoire v. Shaw being at equity and not simply at law under the Practice Act of 1845 the case of Hite v. Thompson, 18 Mo. 461, does not apply to the case as made by the record.

V. The five years allowed for setting aside the judgment had not expired at the commencement of this suit--R. C. 1845, p. 831, § 8.

There is some irregularity in the proceedings, but the merits of the case depend upon the validity of the former judgment in partition as against the plaintiffs.

The petition and amendment may be taken as sufficient to sustain the judgment if otherwise correct. The answer denied the tenancy in common, and alleged that the defendant was holding the premises adversely to the plaintiffs. If this defence had been established it would have put an end to all right to a partition in this suit, and it would have been necessary for the plaintiffs first to establish their title and right to the possession as tenants in common with the defendant by an action of ejectment. This was decided in the case of Lambert v. Blumenthal, 26 Mo. 471. In Forder v. Davis, 38 Mo. 107, the same principles were recognized, and it was held that a disseizin, or an adverse possession amounting to an actual ouster of the co-tenants, destroys the unity of possession and takes away the right of partition; but the possession of one tenant in common would presumptively, and without proof of such actual ouster, be the possession of the co-tenants also. The truth of this defence as a matter of fact was involved in the issues which were tried. The court found in effect, that there had been no such disseizin or actual ouster, nor any such actual adverse possession of the land by the defendant. We do not find that any evidence was offered to prove the fact of such actual adverse possession. The whole matter appears to have been determined as a question of legal seizin by title, and as a matter of law. We must take it that the issue was found against the defendant.

The main question depends upon the validity of the adverse title which the defendant endeavored to establish. For the purpose of showing such title in himself to the whole premises, he offered in evidence the record of a former partition suit between Charles Gregoire, plaintiff, and Philip and John Shaw, Joseph Buckholtz, and others, defendants, in the Circuit Court of St. Francois county. It appeared by this record that the suit was commenced by filing a petition for a partition in vacation on the 12th day of January, 1852, returnable to the next May term of the court; that no summons was issued, but that an order of publication was obtained upon an affidavit filed with the petition on the same day, notifying certain named defendants as non-residents, and other parties unknown, of the institution of the suit. Philip and John Shaw, who were alleged in the petition to be minors, and for whom it was prayed therein that a guardian ad litem might be appointed, were not named in this order of publication. The record did not show that a copy of the petition, accompanied with notice of the proceeding and of the day in term on which the petition would be presented to the court, had ever been served upon them, or upon any legally appointed or natural guardian, nor that a summons or notice of any kind had ever been served upon them. It appeared from the evidence that they were at that time residing with their father in the adjoining county of Scott. It further appeared by the record that when the proof of publication of the order was made, and a default taken against the parties who had been notified, the court proceeded of its own motion, or upon the prayer of the petition only, to appoint one William E. Brady guardian ad litem for these minors, and he accepted and gave bond as such. He filed no plea or answer for them, but submitted their interests to the determination of the court; and thereupon the court ascertained and declared the interests of the parties, and gave judgment that partition be made accordingly. We pass over such defects in the proceedings as might have been matters of error for which the judgment would be reversed on appeal.

It is evident that the suit was not instituted in conformity with any statute then in force. The order of publication would seem to have been obtained under the seventh section of the Partition Act of 1845. It could not have been done under the Practice Act of 1849 (art. 5. §§ 8 & 11), for the reason that there was no allegation in the petition that unknown parties were interested; nor...