Thornton v. Thornton

• Decision Date: 31 October 1858
• Citation: 27 Mo. 302
• Parties: THORNTON et al., Plaintiffs in Error, v. THORNTON, Defendant in Error.
• Court: Missouri Supreme Court

27 Mo. 302

THORNTON et al., Plaintiffs in Error,

v.THORNTON, Defendant in Error.

Supreme Court of Missouri.

October Term, 1858.

1. Infants may be made parties plaintiff in statutory proceedings for partition. (Johnson v. Noble, 24 Mo. 252, overruled.)

2. Infants cannot appear by attorney; they may appear by guardian.

3. An interlocutory judgment is an action for partition, ascertaining the rights of the parties and appointing commissioners, etc., cannot regularly be rendered, without the consent of the defendant, at the first term at which he is bound to appear.

Error to Washington Circuit Court.

Frissell, for plaintiffs in error.

I. A sale is an entire thing. If void or voidable in part, it is void or voidable as a whole. The judgment is irregular and void as to the infants and Brunk and wife, for the reason that they were not in fact parties before the court. The judgment then is void, and the sale under it a nullity. (11 N. H. 299; Hall v. Williams, 6 Pick. 247; 12 Johns. 434; 5 Wend. 161.)

T. C. Johnson, for defendant in error.

I. The Circuit Court could not set aside the sale on a mere motion, except for causes originating after the judgment, such as the misconduct of the sheriff, or unlawful combination of purchasers. Even then a purchaser would not be affected, unless he was cognizant of the official misconduct or participated in the combination. (Neal v. Stone, 20 Mo. 294.) The purchasers are not affected by the motion, unless they had notice of it. The record does not show such a notice. (16 Mo. 173.) The want of authority in the attorney to use Brunk's name, and the infancy of five of the petitioners, cannot be urged against the sale. At most they would make the judgment erroneous. The sale would still be good. The court, therefore, should have overruled the motion to set aside the sale. The judgment is, however, good and valid, and ought not to be disturbed. The suggestion of Brunk, by affidavit, that his name was signed to the petition without his knowledge or consent, is not sufficient to authorize the court to disturb the judgment. There is no irregularity in the joinder of the infants as parties plaintiff.

RICHARDSON, Judge, delivered the opinion of the court.

This was a proceeding for partition of real estate between the widow and representatives of John Thornton, deceased, commenced in December, 1854. The petition begins--“To the Honorable Circuit Court of Washington county: Your petitioners, John Thornton, Jackson Thornton, John Jennings and Catharine, his wife, John Brunk and Mary, his wife, Mary Thornton, Thomas Hopson, Catharine Hopson, his wife, and James Thornton, Elizabeth Thornton, Cynthia Thornton, Margaret Thornton and Daniel Thornton, by their guardian--the five last named being minors, under twenty-one years of age--say that they are the owners in common and in fee with Joseph Thornton, who is absent in California, and does not join in the petition,” etc.; but the name of the guardian of the infants is nowhere stated, and it does not appear that they had any. The petition purports to be signed by the adult parties, but it is not signed by the attorney, nor by the infants, nor by their guardian, nor any other person for them. The affidavit is made by Mr. Perryman, as attorney for the petitioners, and there is endorsed on the petition a memorandum signed by him that he consented to act as next friend for the minors; but it nowhere appears that his appointment as such was ever requested, or that he was ever appointed by any court or officer. The record states that an order of publication, which had been previously made, was duly proved, and, at the April term of the court, 1855--which we suppose was the first term after the petition had been filed-- there was a judgment ascertaining the rights of the parties and appointing commissioners. At the following October term the commissioners made a report, which resulted in an order of sale, and at the April term, 1856, the land was sold by the sheriff, pursuant to the order, for one-tenth of the purchase money in hand, and the residue on a credit of twelve months; and at the ensuing term in October, Brunk, one of the parties, whose name appears to the petition, filed his motion, supported by his affidavit, to set aside the sale made at the previous term, because his name had been signed to the petition without his knowledge or consent, and he had no notice of the proceedings, and also because the infants, who are represented as appearing by guardian, had no guardian in fact. The court set aside the sale as to the interest of Brunk and his wife and the minors, and overruled the motion as to the other parties.

It is not shown that the purchasers had notice of the motion to set aside the sale; but notice to them was not necessary, as the irregularities in the proceedings were such as affected the validity of the judgment; and, as their title would have been insecure, perhaps, even in a collateral proceeding, it was to their interest, before the purchase money was paid, that the sale, as to all the parties, should be set aside.

We think it is no objection that the infants were joined as plaintiffs; but they could not appear by attorney, and they did not appear by guardian or next friend. The petition is not signed by them, or by any person in any capacity whatever for them, and they only appear as parties to the proceedings by the caption to the petition. Infants can only sue by guardian or next friend; and if these infants had no guardian, one could have been appointed for them before the commencement of the suit, under the ample provisions of the statute for that purpose (R. C. 1845, tit. Partition, sec. 54); and the endorsement by Mr. Perryman on the petition that he consented to act as their next friend amounted to nothing.

It was also irregular to try the case at the first term of the court...