Thompson v. McClernon

• Decision Date: 04 April 1910
• Citation: 127 S.W. 384,142 Mo. App. 429
• Parties: THOMPSON v. McCLERNON et al.
• Court: Missouri Court of Appeals

127 S.W. 384

142 Mo. App. 429

THOMPSON v. McCLERNON et al.

Springfield Court of Appeals. Missouri.

April 4, 1910.

1. PARTITION (§ 100) — ACTIONS FOR PARTITION — SALE — NATURE — "PARTITION SALE."

A "partition sale" as the result of an action brought for that purpose is not a sale in invitum like an ordinary sheriff's sale under execution, but is a sale by the act of the parties themselves.

2. INFANTS (§ 39) — ACTIONS FOR PARTITION — JUDGMENT — COLLATERAL ATTACK.

Rev. St. 1899, § 4380 (Ann. St. 1906, p. 2414), permits the guardians of minors' estates to bind their wards by the division of land. In an action to partition land belonging to minors, the minors were served with process and represented by a guardian ad litem who answered. Their regular guardian consulted with the minors, their attorneys, and guardian ad litem, and appeared in court and was appointed commissioner to sell the land. The guardian received the money resulting from the sale, used a portion of it for the benefit of his wards, and as they became of age paid to each his share of the fund. Plaintiff's grantor was the youngest of the minors, and he received the amount due him, knowing that it had been derived mainly from the sale of the land. Held that, the court having obtained jurisdiction of the minors and the subject-matter, the rights of the minors were governed by the partition act and not the general practice act, that the guardian acted within the scope of his powers, that no injury accrued to the minors from their being represented by a guardian ad litem who was not their general guardian, and, there being no collusion, that the sale was valid and conveyed the interest of plaintiff's grantor.

3. PARTITION (§ 109) — SALE — TITLE OF PURCHASER — IRREGULARITIES — EFFECT.

If an adult sued in partition participates in the proceedings resulting in a sale of the land without filing any answer, is present at the sale, makes no objections on account of irregularities in the suit, and accepts the proceeds of the sale, the purchaser acquires a good title free from attack by such adult on account of any irregularities.

4. PARTITION (§ 21) — CONSTRUCTION OF WILL —TIME FOR BRINGING PROCEEDINGS.

A will provided that land devised to certain minors should remain intact and be used for their benefit, until the oldest child should become of age. Prior to the time when the oldest child became of age, she began a suit for partition; but nothing more was done in the matter until she became of age, when she filed an amended petition and prosecuted the suit, and the land was sold under an order therein. Held, that the land was not partitioned in contravention of the will.

5. PARTITION (§ 77) — CONSTRUCTION OF WILL — DIVISION OF LAND OR PROCEEDS.

Under a will devising land to certain minors, which provides that the property shall be kept intact until the oldest child becomes of age, when it may be divided share and share alike, the property need not be actually divided, but may be sold in partition and the proceeds divided among the minors.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by John B. Thompson against Hugh McClernon and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Hamlin & Seawell, for appellant. Frank S. Heffernan, for respondents.

GRAY, J.

On the 14th day of March, 1892, the respondents, by their warranty deed properly executed, sold to appellant a tract of land in Greene county, Mo. That deed contained the usual covenants found in general warranty deeds in use in Missouri. In 1909 the appellant obtained a quitclaim deed to the land from one Joseph G. Danforth, who claimed to have an interest therein paramount to the title conveyed by the respondents. This deed was obtained for the reason that appellant had a purchaser for the land and who claimed that appellant's title was not good on account of an outstanding interest in said Joseph G. Danforth. The appellant paid Danforth for his deed the sum of $300. This suit was brought in the circuit court of Greene county to recover from respondents money paid for this deed, on the theory that respondents were liable by reason of their warranty deed aforesaid. There was a trial by the court and judgment rendered in favor of the defendants, and plaintiff has appealed.

The court, at the request of the defendants, made a special finding of facts, and which we believe to be supported by the evidence. It will not be necessary to set forth this finding of facts in full, but the substance thereof is as follows: That Priscilla A. Danforth at one time was the owner of the property in controversy. That by her will made prior to the year 1889 she devised to the defendants, children of Josiah G. and Priscilla A. Danforth, the land in controversy. The devisor, Priscilla A. Danforth, was the grand-aunt of the devisees. The will provided that the land should remain intact and be used for the benefit, education, and support until the oldest child (Ada R. Danforth) should become of age. Prior to the time when said Ada R. Danforth became of age, she commenced a suit for partition of the property. Nothing was done with this suit until 1890, when the plaintiff therein had become of age. The minor defendants, having been duly served with process, were represented by a guardian ad litem, Hon. John P. McCammon. At that time one A. B. Appleby was the regular guardian of the minor defendants; but he filed no answer, although he was the principal actor in all the partition proceedings. He consulted with the mother of the minors and with the attorneys, the guardian ad litem, and appeared in court in person, and was appointed commissioner to sell the property and to lay it off into lots, and it was through his supervision, judgment, and business ability that the property was finally, sold to the different purchasers for about $15,000. This money he took as guardian and kept it and used it for the benefit, education, and maintenance of the minors under various orders made from time to time by the probate court of Greene county, until about 1899, when he surrendered his guardianship and turned over the funds to his successor, Dr. J. R. Bartlett. As the minor devisees became of age, the proper proportion of the money was turned to them until the last (Josiah), who had made the deed to the plaintiff in this case, became of age, when a settlement was made and he received $797. Of the amount turned over to him, all but about $135 was money from the partition proceedings. In the partition proceedings there was a misdescription of some of the property, especially in the notice of sale, and that while the property was not properly described, legally and technically, yet the property was marked off and measured into lots and parcels, and the purchasers as well as the commissioner, guardian of the minors, knew the parcels they were buying, and there was no mistake or misunderstanding between them.

The court further found there was no fraud in the sale of the property; that it brought a fair price; that McClernon, one of the respondents, became the purchaser at the commissioner's sale of the piece of property in controversy, and afterwards sold and conveyed with covenants of warranty to the plaintiff, Thompson; that Thompson, after holding the property some years, desired to sell it, and had a purchaser in view. The purchaser was willing to buy at the price, but, on an examination of the abstract, the defects in the partition suit became apparent, and that an adverse opinion by the attorneys on behalf of the purchaser caused him to refuse to take the property; whereupon Thompson sought out and found said Josiah Danforth and procured from him a quitclaim deed for $300, and the price so paid was reasonable, provided the said Josiah had one-sixth interest in the property, which was indicated by the lapse in the record. The court also found that said Josiah received his money in the hands of his guardian after becoming of age, and that at...