Troll v. City of St. Louis

CourtUnited States State Supreme Court of Missouri
Citation168 S.W. 167,257 Mo. 626
PartiesHARRY TROLL, Administrator in Charge of Estate of MURDOCH & DICKSON, Plaintiff in Error, v. CITY OF ST. LOUIS et al
Decision Date04 May 1914

Error to St. Louis City Circuit Court. -- Hon. W. M. Kinsey, Judge.


John M Dickson for plaintiff in error.

(1) Real estate and other property in possession of an administrator is in possession of the court. Cowen v Mueller, 176 Mo. 98; Bank v. Field, 156 Mo 310; Brown on Jurisdiction, sec. 54; Byers v McAuley, 149 U.S. 614; Youley v. Lavender, 88 U.S. 280. No person purchasing land in the custody and control of the court of competent jurisdiction can assert an adverse possession against the court or its officer; and any attempted sale thereof pending the litigation, is wholly destitute of effect on the court's control, possession and jurisdiction. The interest in the realty here was, before and ever since the deed to Priest, at the time Harrison conveyed to others and they to successive grantees, and now is in the custody, control and possession of the probate court and its officer. That administration and winding up proceeding was at all times and still is pending. 21 Am. & Eng. Ency. Law (2 Ed.), 601; Bennett on Lis Pendens, p. 251. No person purchasing pendente lite can claim adverse possession to the parties to the proceeding in which the land is directly involved, while the suit is in progress and until its complete and final determination; and the proceeding in the probate court, substituted by statute for courts of equity in the same behalf, was a proceeding pending involving this interest in land, which was subject to sale and accounting there in precisely the same manner as would be a winding up proceeding in a court of equity jurisdiction between living persons until the final order or decree therein. The pretended deed of Murdoch to Priest was void and barren of effect upon the title or jurisdiction. Harrison and his grantees claim under Priest's void deed. Ibid.; 1 Am. & Eng. Ency. (2 Ed.), 818; Hanley v. Gore, 4 Dana, 133; Bennett on Lis Pendens, p. 212. In support of the rule that no person purchasing pendente lite can claim adversely to the ultimate decree a court may make in respect of real estate directly involved in the proceeding, or to rights as fixed or determined thereby, see Bailey v. Winn, 113 Mo. 165; O'Reilly v. Nicholson, 45 Mo. 166; Turner v. Babb, 60 Mo. 348; Stoddard v. Myers, 8 Ohio 203; McIlwrath v. Hollander, 73 Mo. 113; Holloway v. Holloway, 103 Mo. 283; Burnham v. Smith, 82 Mo.App. 47; 21 Am. & Eng. Ency. (2 Ed.), 647; 27 Am. & Eng. Ency. (2 Ed.), 597; Union Tr. Co. v. So. Isl. Nav. Co., 130 U.S. 565; Jackson v. Pearson, 60 F. 113; Dodd v. Lea, 57 Mo.App. 171; Herrington v. Herrington, 27 Mo. 560; Miller v. Hall, 1 Bush (Ky.), 229; Land & Cattle Co. v. Miller, 152 F. 21. Neither can a purchaser pendente lite, or while the land is in legal custody -- that is, where it is either involved in the determination of any suit and not in legal contemplation in custodia legis, or where it is in legal contemplation in custodia legis, make any claim adverse to the true owner as fixed by the proceeding or decree, or make any demand for improvements made and taxes paid; since such purchaser cannot claim to be bona-fide. Hoole v. Atty. Gen., 28 Ala. 190; Cable v. Ellis, 120 Ill. 136; Asher v. Mitchell, 9 Ill.App. 335; Henderson v. Pickett, 4 T. B. Mon. (Ky.) 54; Haren v. Adams, 8 Allen (Mass.), 363; Patterson v. Brown, 32 N.Y. 81; Shand v. Harley, 71 N.Y. 319; Harle v. Langdon, 60 Tex. 555; Willie v. Ellis, 28 Tex. Civ. App. 462; Harm v. Keller, 79 Va. 415; McGee v. Johnson, 85 Va. 161. The proceeding in the probate court for the winding up, accounting and settlement of the partnership estate is still in progress, and until finally disposed of by that court no possession adverse to plaintiff here, or to the probate court, can be asserted. (2) Where a court lacks jurisdiction over subject matter, no consent, express or implied, no acquiescence, no delay, no estoppel predicated upon such consent, delay or acquiescence, or from anything else, can give to such unauthorized proceedings any validity whatever, or bind, in any way, any of the parties to such proceeding. Cooley, Const. Lim., pp. 575, 576; Brown on Jurisdiction, pp. 47, 48 and 49; Wells on Jurisdiction, sec. 66; Hawes on Jurisdiction, secs. 10, 11; 11 Cyc. 673; Black on Judgments, sec. 217; Black on Const. Law, p. 426; Bigelow on Estoppel, 206; Fields v. Maloney, 78 Mo. 176; Bk. v. Doak, 75 Mo.App. 336; Ladd v. Forsee, 163 Mo. 506; Freeman on Judgments, sec. 117; Fithian v. Monks, 43 Mo. 521; Russell v. Grant, 122 Mo. 180; 17 Am. & Eng. Ency. (2 Ed.), p. 1046. (3) In every partition suit, whether strictly at law, under the statute, or equitable in its nature, all persons having any interest in the real estate sought to be partitioned, must be made parties plaintiff or defendant, and if not so joined, the proceedings are wholly void as to such interests. Hiles v. Rule, 121 Mo. 228; Shields v. Barrow, 17 How. (U.S.) 130; Barney v. Baltimore, 6 Wall. 284; Freeman on Co-tenancy (2 Ed.), sec. 463; Holloway v. Holloway, 97 Mo. 628; Thompson v. Holden, 117 Mo. 118; Johnson v. Johnson, 170 Mo. 34. (a) The rule that requires advantage to be taken of defect of parties, if such defect appears on the face of the petition, or by an answer or plea, if it does not so appear, has no application to partition suits. Sec. 4375, R. S. 1899. A court can acquire no jurisdiction from the filing of a petition for partition or by the service of summons thereunder, when the plaintiff is a total stranger to the title. And to confer jurisdiction upon the court to entertain such suit, or to make a decree of partition, it must appear from the face of the petition that the plaintiff has a legal or equitable interest in the land and is in possession as a joint tenant, tenant in common or co-parcenary, in fee, for life, for years, or is a tenant by the curtesy or in dower. Sec. 4373, R. S. 1899; Freeman on Cotenancy, chap. 21. Neither Harrison nor his grantees can claim to be innocent purchasers under the pretended partition proceedings, or to hold adversely to plaintiff as purchasers under the order of sale therein, as they are purchasers pendente lite that proceeding, and that proceeding is still pending and no final judicial termination thereof has yet been had. A purchaser pendente lite can not claim that he holds possession as purchaser under an interlocutory order of sale. He holds it subject to any orders, amendments or changes in the interlocutory decree the court may make. He is a pendente lite purchaser and the court's control of the cause does not cease until the final judgment, which is the approval of the sale and the order of distribution. Collier v. Lead Co., 106 S.W. 978. (b) The record shows that Priest did not by his petition disclose that he had any interest of any kind in the land. That he was a sham plaintiff. By his petition he did not invest the court with jurisdiction to adjudicate, and under it the court was without power to decree partition. Wonderly v. Lafayette Bk., 150 Mo. 635; Argument in Kingston Case, 20 How. St. Tr. 478; 15 Ency. Pl. and Pr. 468; Att'y-Gen. v. Tel. Co., 30 Beavan, 287; Baxter v. Baxter, 43 N.J.Eq. 82, 44 N. J. L. 298; Life Ins. Co. v. Lanier, 5 Fla. 110, 58 Am. Dec. 448; Dix v. Ins. Co., 22 Ill. 272; Shoemaker v. Grant, 36 Ind. 175; Townsend v. Townsend, 5 Hare, 127; Stoddard v. Mix, 14 Conn. 12; Story, Eq. Pl., sec. 259; Story, Eq., secs. 256, 262; 1 Beach, Eq. 105; Sec. 4373, R. S. 1899; Freeman on Cotenancy, chap. 21; 2 Hughes Proc. 772; Johnson v. Johnson, 170 Mo. 34. (c) The record shows that the interlocutory decree rendered was of date April 9, 1875, before the death of Renick was suggested. It further shows that the court adjudged at that time that Renick had parted with his interest in the land to Oliver D. Filley before suit brought. If it had power to so determine, then it ceased to have jurisdiction to decree partition, as Renick was the only real plaintiff stating an interest in the land, and upon such finding the only power in the court was to dismiss the proceeding. Ibid.; Hiles v. Rule, 49 Mo.App. 628, 121 Mo. 248; Sec. 761, R. S. 1899. (d) If the foregoing propositions are true, then the court's duty in the partition suit yet awaits it, viz., to set aside all orders, judgments and decrees it assumed to enter, either after the date of its finding that Renick, the only real plaintiff stating an interest in his petition, had in fact parted with his interest before suit brought, or after the suggestion of death, showing he died before the submission and interlocutory decree. All such are necessarily void, and after setting them aside the cause is still pending, awaiting dismissal. Windsor v. McVeigh, 93 U.S. 274; Keele v. Keele, 118 Mo.App. 262. (4) Priest was not the legal successor of Murdoch, derived no title or interest in the assets by his deed. By said deed and Priest's qualification thereunder the jurisdiction of the circuit court over the estate and the accounting did not attach. The assignment being void and creating no assignment of which the circuit court could take jurisdiction, and the deed leaving the estate in the probate court with the jurisdiction of that tribunal unimpaired, the whole pretended accounting in the circuit court was void, and no court could consider any pretended accounting there or any single item of any account there for the purpose of changing, modifying or in any way affecting the true accounting already begun in the probate court. Everything done in any proceeding under the assignment in the circuit court was outside of that court's jurisdiction. Hence Priest was in no sense whatever a representative of...

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