Sparks v. Clay

• Decision Date: 23 November 1904
• Citation: 185 Mo. 393,84 S.W. 40
• Parties: SPARKS v. CLAY.
• Court: Missouri Supreme Court

84 S.W. 40

185 Mo. 393

SPARKS v. CLAY.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

PARTITION — JURISDICTION — JUDGMENT — FINAL ORDER — AFTER-BORN REMAINDERMAN.

1. The owner of an undivided interest in land instituted a suit for partition, and a judgment entered in 1854 found that such owner should have an undivided one-fourth during her life, and after her death in fee simple to her heirs, and partition was decreed accordingly. Commissioners were appointed to carry out the order and report, and in 1855 the commissioners reported the land incapable of division in kind, and an order of sale was entered, which was executed in 1856, and, on sheriff's return made in 1858, the court ordered distribution of the proceeds. Under the acts then in force (Rev. St. 1845, p. 764), it was the court's duty to order the sale of lands not susceptible of division in kind, and the sheriff was to pay out the proceeds to the parties as their interests appeared. Held, that the judgment in 1854, and not the order of distribution in 1858, was the final judgment, and hence the proceedings were not void on the ground that an heir born after the judgment of 1854, and before the order of distribution in 1858, was not a party.

2. The court's failure to order the portion of the proceeds of such owner to be invested and the interset paid to her for life, and after her death the fund to go to her heirs, was only a matter of error, and did not deprive the court of jurisdiction.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Ejectment by Mollie Sparks against Green Clay. From a judgment for defendant, plaintiff appeals. Affirmed.

George Robertson, for appellant. Fry & Rodgers, for respondent.

MARSHALL, J.

This is an action in ejectment to recover 10.13 acres of land in the city of Mexico, Audrain county; it being a part of the west half of the northwest quarter of the northeast quarter of section 35, township 51, range 9. The petition is in the usual form, and the ouster is laid as of the ____ day of February, 1902. The answer is a general denial, with a plea of the statute of limitations. At the close of the whole case the court directed a verdict for the defendant, and from the judgment thereon the plaintiff appealed.

The facts in judgment are these: George F. Muldrow is the common source of title; he having acquired the land by a patent from the United States government on August 30, 1838. By a quitclaim deed dated October 19, 1853, George F. Muldrow and wife conveyed certain land, of which the land in controversy is a part, to his two sons, John G. Muldrow and Charles A. Muldrow, and to his two daughters, Sarah I. Muldrow (plaintiff's mother) and Mary L. Clark, née Muldrow. The conveyance to the sons was of an undivided one-fourth to each in fee. The conveyance to the daughters was "for their use and benefit during their natural lives, and in fee simple to their heirs." On October 25, 1853, Mary L. Clark and her husband and Sarah I. Muldrow instituted in the circuit court of Audrain county a suit for the partition of the land so conveyed, against George F. Muldrow and his wife, Charles A. Muldrow, and George H. and Mary Bell Clark, the minor children of Mary L. Clark. George F. Muldrow and his wife entered their appearance. Charles A. Muldrow was a minor, and was served with process. The judgment, dated October 25, 1854, recites that the court found that the defendants had been duly served with process issued from the court, and the circuit court appointed guardians ad litem for each of them (John P. Clark being appointed guardian for his minor children), and the guardians filed answers for the minors, and the court found the interest of the parties in the land to be as follows: To Margaret Muldrow (wife of George F. Muldrow) and to Charles A. Muldrow each one undivided one-fourth interest in fee, and to Sarah I. Muldrow and Mary L. Clark each one undivided one-fourth in the land, "during their natural lives, and after their death in fee simple to their heirs," and decreed partition accordingly, and appointed commissioners to make partition in conformity therewith and to make report. On April 20, 1855, the commissioners filed their report that the land could not be divided in kind, and thereupon, on April 23, 1855, the court ordered that the sheriff sell the land on 12 months' credit. This order was not executed, but on October 23, 1855, the court entered a renewed order of sale, to be executed at the next term of the court. The sheriff executed this order and sold the land on April 29, 1856, and John P. Clark, the husband of the plaintiff Mary L. Clark, became the purchaser of the land in controversy here. The sheriff made no return upon the order of sale until May 7, 1858. At some date between the renewed order of sale and the report of sale, not clearly shown by the record, but stated to be in 1856, Sarah I. Muldrow married A. A. Sparks, and on July 11, 1857, the plaintiff was born, and she is the only child and heir of Sarah I. Muldrow. On June 12, 1858, the court ordered the then late sheriff, who had sold the land while sheriff, to make distribution of the proceeds of sale as follows: "To Mary L. Clark and her heirs, and to Sarah I. Sparks, formerly Sarah I. Muldrow, and her heirs, each one-fourth part thereof for their use and benefit during their natural lives, and at their death in fee simple to the heirs of their body, and to the said Margaret Muldrow and Charles A. Muldrow each the one-fourth part thereof in fee simple." The order then directed that the costs of the case be paid by the parties according to their respective interests, and then concluded as follows: "And afterwards, to wit, on the same day, John P. Clark produced his bond as guardian of the heirs of Mary L. Clark, which bond was examined by the court and approved and ordered to be entered of record. And also on the same day came Aquilla A. Sparks, and produced his bond as guardian of the heirs of Sarah I. Sparks, which was by the court examined, approved, and ordered of record." The bond was shown to be among the files of the papers, and filed for record on May 7, 1858. It recites the appointment of A. A. Sparks by the circuit court as guardian for Mollie Eliza Sparks, infant under 21 years, and only child of Sarah I. Sparks. The record in this case does not show how the sheriff executed the order of distribution, but concludes with a statement that the record in the partition case contained the following order: "November 3, 1858. This day the report filed herein by William Hendrix, sheriff, is by the court approved, and this cause is stricken from the docket." Sarah I. Sparks, the life tenant and the plaintiff's mother, died on February 14, 1902, and this action was brought to and tried at the June term, 1902. The plaintiff claims one undivided one-fourth interest in the land as remainderman in fee under the deed of her grandfather George F. Muldrow, dated October 19, 1853. The defendant claims by mesne conveyances from John P. Clark, the purchaser at the partition sale.

As stated, the circuit court directed a verdict for the defendant, and the plaintiff appealed.

The position of the plaintiff is thus stated by her counsel: "Plaintiff's contention is that these partition proceedings, as to her, are utterly void, not only because of the failure to comply with the law for procedure in partition suits, but, having been born during the progress of the case, and before the land was disposed of to John P. Clark, any sale had under said proceedings could carry only her mother's life estate, and did not affect her interest in the remainder."

The first contention of the plaintiff is that the judgment in partition is void, because the plaintiff came into existence before it was rendered, and was not made a party to the proceedings or served with process, and therefore the appointment of a guardian for her was coram non judice. This contention is predicated upon the theory that the order of distribution of June 12, 1858, was the final judgment in the partition suit. The judgment finding the interests of the parties, decreeing partition, and appointing commissioners to divide the land, was entered on October 25, 1854. The order of sale to the sheriff was dated October 23, 1855, and was executed by the sheriff on April 29, 1856. Plaintiff's mother was then unmarried. She married some time in 1856, and plaintiff was born July 11, 1857. The order of distribution was made on June 12, 1858. When the judgment was entered on October 25, 1854, and when the land was sold on April 29, 1856, the plaintiff was not in esse, and therefore could not have been made a party defendant or served with process. She came into existence on July 11, 1857, the order of distribution was made on June 12, 1858, and the sheriff's deed to the land was executed on May 7, 1858, and filed for record on June 10, 1858. The plaintiff contends that the order of distribution of June 12, 1858, was the final judgment, while the defendant contends that the judgment entered on October 25, 1854, was the final judgment, and that there was no authority in the court, under the law in force at that time, to make the order of distribution, but that the sheriff was charged with the power and duty to make distribution according to the provisions of the judgment of October 25, 1854. An analysis of the statute in force at that time is necessary to determine these contentions.

When the judgment of October 25, 1854, was entered, the act of February 21, 1845, was in force (Rev. St. 1845, p. 764). That was the revision of 1845. That act was made up of the various acts in force prior thereto, together with various new provisions, and the result was an act the provisions of which were not harmonious. For the purposes of this case, it is only necessary to refer specially to the following inconsistencies: Sections 56, 57, 58, 59, and 60 of chapter 128 of the Revised Statutes of...