Estes v. Nell

• Decision Date: 11 June 1901
• Citation: 163 Mo. 387,63 S.W. 724
• Parties: ESTES et al. v. NELL et al.
• Court: Missouri Supreme Court

63 S.W. 724

163 Mo. 387

ESTES et al. v. NELL et al.

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

PARTITION — TRANSFER OF PLAINTIFFS' TITLE — REOPENING JUDGMENT.

1. A judgment in partition for plaintiffs was affirmed on appeal. On remand defendants filed a motion in the nature of a writ of coram nobis, asking the court to set aside its judgment, which had been affirmed, and its order appointing commissioners, and open up the whole case on an allegation that plaintiffs had made a quitclaim deed to their attorney prior to and pending the partition proceedings, and after the plaintiffs' interest in the land had been adjudged in a judgment. There was no evidence when the deed to plaintiffs' attorney was recorded. Defendants testified that they knew nothing of its existence. Plaintiffs' attorney testified that he had mentioned it to defendants' attorney, who did not deny such statement, and that the deed had been made some six or eight years before the motion, and had been made to secure his fee. Held that, as the record of the deed might have imported notice of its existence to defendants before they filed their answer, and as actual notice was given to defendants' attorney as to such deed, the relief sought will be denied.

2. Where, after judgment in partition was affirmed on appeal, it appeared that pending partition plaintiffs had transferred their interest in the lands to their attorney to secure his fee, and such attorney disclaimed any interest in the lands set off to defendants, or any interest in the lands set off to plaintiffs other than to secure such lien, it was not error to overrule a motion to open up the case.

Appeal from circuit court, Laclede county; L. B. Woodside, Judge.

Action by Agnes Estes and others against Samuel Nell and others. From the judgment entered, the defendants file a motion in the nature of a writ coram nobis. From the judgment entered, defendants appeal. Affirmed.

This is a suit to partition certain lands in Wright county, Mo., between plaintiffs and defendants. An interlocutory decree was entered in the circuit court of Laclede county, to which the cause had been certified on a petition for a change of venue. From that decree the defendants prosecuted an appeal to this court, and the judgment of the circuit court was affirmed. Estes v. Nell, 140 Mo. 639, 41 S. W. 940. Prior to the commencement of this partition proceeding, plaintiffs had commenced and prosecuted successfully an action of ejectment against these defendants, whereby the interest of plaintiffs in the lands was settled. On the trial of the partition suit the statute of limitations was interposed as a defense, but this court upon the authority of Snell v. Harrison, 131 Mo. 495, 32 S. W. 37, held the statute of limitations was not applicable, because the judgment in ejectment broke the continuity of the alleged adverse possession. After the partition cause was remanded, and on the 17th day of February, 1898, the defendants filed what they denominated a motion in the nature of a writ of coram nobis, the substance of which was and is that at the time plaintiffs brought this suit for partition they had no interest in the lands they sought to partition, but had, previously to the commencement of this suit, conveyed the same by quitclaim deed to F. M. Mansfield, Esq., their attorney in said suit. This motion was filed after the commissioners had been appointed and had made their report in accordance with the interlocutory decree. Upon the filing of said motion, Mr. Mansfield filed his disclaimer of any and all interest in the lands set off and assigned to defendants by the commissioners. The circuit court heard the evidence offered in support of the motion, from which it appeared that plaintiffs J. J. and Agnes A. Estes and S. C. and Mary Estes had executed a quitclaim deed to part of the lands in suit to F. M. Mansfield, June 1, 1886. The two attorneys for defendants testified they had no knowledge or information of the existence of this deed until December, 1897. On the part of plaintiffs Mr. Mansfield testified that after the recovery of the judgment in ejectment he commenced the suit in partition for plaintiffs. They had paid him a portion of his fee, but complained they were unable to pay all of it, and thereupon he took the quitclaim to a part of their interest as a security for his fee. It was treated by plaintiffs and himself simply as an equitable mortgage to secure his fee. He testified further that he told Col. Musick, one of defendants' attorneys, of the deed, six or eight years before this motion was filed. Col. Musick, on being recalled,...