Estes v. Nell
| Decision Date | 11 June 1901 |
| Citation | 63 S.W. 724,163 Mo. 387 |
| Parties | ESTES et al. v. NELL et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Laclede Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
H. C Young and Thos. H. Musick for appellants.
(1) The existence of the deed from plaintiff Estes to F. M Mansfield, being a latent matter of fact unknown to the court and to defendants, the motion in the nature of a writ of eror coram nobis, lies. Marble v. Vanhorn, 53 Mo.App 361; Dugan v. Scott, 37 Mo.App. 666; Randalls v. Wilson, 24 Mo. 76; Walker v. Deavers, 79 Mo. 664; Nunan v. St. Joseph, 126 Mo. 92; Picket v. Ledgerwood, 7 Pet. 144; Arnold v. Sanford, 15 Johns. 534; Campbell v. Bennett, 16 Wend. 48; Bigham v. Brown, 4 Sneed (Tenn.) 432; Phillips v. Russell, 1 Hemp. (C. C.) 62; Hawkins v. Bowers, 9 Gill & J. (Md.) 428; Jeffrey v. Fitch, 46 Conn. 604; Adler v. State, 35 Ark. 517; Sanders v. State, 85 Ind. 318; Fellows v. Griffin, 9 Smeed & M. (Miss.) 362; State v. Calhoun, 50 Kan. 523; Crawford v. Williams, 1 Swann (Tenn.) 341; McLemon v. Dwrivage, 92 Tenn. 482; Merritt v. Parks, 6 Hump. (Tenn.) 332; Crouch v. Mullenix, Heisk. (Tenn.) 478; Tucker v. James, 12 Heisk. (Tenn.) 333; State ex rel. v. Heinrich, 14 Mo.App. 146; Ex parte Page 49 Mo. 291; Ex parte Tony, 11 Mo. 661; Powell v. Gott, 13 Mo. 458; Latshaw v. McNees, 50 Mo. 381; Groner v. Smith, 49 Mo. 318; Heard v. Sack, 81 Mo. 616; Ex parte Gray, 77 Mo. 160; Craig v. Smith, 65 Mo. 536; State v. Horine, 63 Mo.App. 1; McQuillan's Practice, sec. 890; Green & Meyers' Practice, sec. 1153-4-5. (2) The judgment on writ of coram nobis if in favor of plaintiff in error, is that judgment be set aside, and new trial granted. Therefore, defendants in this case are entitled to have the interlocutory judgment set aside, and to have new trial on the merits. Holford v. Alexander, 12 Ala. 286; DeWitt v. Post, 11 Johns. 460; Arnold v. Sanford, 15 Johns. 534; Fellows v. Griffin, 9 Smeed & M. (Miss.) 362; Sanders v. State, 85 Ind. 318; Hirsh v. Weisberger, 44 Mo.App. 506; Latshaw v. McNees, 50 Mo. 381. (3) A valid judgment in partition can not be rendered unless all parties in interest are made parties to the action. Knapp on Partition, p. 103; Lilly v. Menke, 126 Mo. 214; Thompson v. Holden, 117 Mo. 125; Hiles v. Rule, 121 Mo. 248; Dameron v. Jameson, 71 Mo. 99; Burhans v. Burhans, 2 Barb. 407; Aull v. Day, 133 Mo. 346; Bryant v. Russell, 137 Mo. 433; Estes v. Nell, 108 Mo. 172; Harbison v. Sanford, 90 Mo. 477; Raney v. Wall, 6 Wall. 285; R. S. 1899, secs. 4375, 4376, 4386. (4) A mortgagee or any other owner of lien must be made a party in partition. Therefore, Mansfield's claim of being mortgagee is no excuse, and his interest should have been found by the court. Knapp on Partition, p. 89; Loomis v. Riley, 24 Ill. 307; Cheney v. Hicks, 168 Ill. 533; Thompson v. Holden, 117 Mo. 125; Reinhart v. Wendick, 40 Mo. 577; Harbison v. Sanford, 90 Mo. 477; Revised Statutes 1899, secs. 4375, 4376, 4386. (5) F. M. Mansfield having been made a party to the record, it was the duty of the court to try, ascertain and find his interests, particularly as defendants claimed to have a defense against his interests. R. S. 1899, sec. 4386; Smith v. King, 81 Ind. 217. (6) The court should have sustained defendants' motion to be permitted to file their amended and supplemental answer as against said Mansfield, and then have heard evidence on the issue thereby raised. R. S. 1899, secs. 4375, 4376, 4386. (7) If at any time before final judgment it is brought to the knowledge of the court that there are parties in interest who are not parties to the record, the pleadings must be amended and such parties brought in. Lilly v. Menke, 126 Mo. 214; Aull v. Day, 133 Mo. 346; Gudgell v. Mead, 8 Mo. 54; Parkinson v. Caplinger, 65 Mo. 293; Bobb v. Graham, 89 Mo. 207; Hiles v. Rule, 121 Mo. 248; Harbison v. Sanford, 90 Mo. 481; Estes v. Nell, 108 Mo. 172.
R. L. Goode, F. M. Mansfield and W. D. Tatlow for respondents.
(1) A motion in the nature of a writ of error coram nobis, so far as recognized by the precedents in this State -- is limited to the correction of judgments, based on an assumed fact, the existence of which was necessary to the validity of such judgment, and upon which the record was silent, and which was not a litigated or determined fact. The following are instances in which it has been applied: Party dead at time judgment was rendered; Dugan v. Scott, 37 Mo.App. 663; Judgment against insane person; Head v. Sack, 81 Mo. 610; Judgment against infant; Powell v. Gott, 13 Mo. 459; Randalls v. Wilson, 24 Mo. 76; Mehan v. St. Joseph, 126 Mo. 89. Judgment against married women as feme sole; Latshaw v. McNees, 50 Mo. 381; Walker v. Deaver, 79 Mo. 664. Judgment against one of several defendants, who was not served, and appearances of attorney being by mistake and unauthorized; Craig v. Smith, 65 Mo. 536. Judgment against resident on publication as non-resident; State ex rel v. Henrick, 14 Mo.App. 146; State ex rel. v. Horine, 63 Mo.App. 1; State ex rel. v. White, 75 Mo.App. 257. Minor under eighteen sentenced to penitentiary; Ex parte Gray, 77 Mo. 160. (2) There is no case to be found in the books where the writ was sustained on a fact that was in issue on the trial, and the parties appeared to the action and were under no disability. Bronson v. Schulton, 104 U.S. 416; Marble v. Van Horn, 43 Mo.App. 361; Howard v. State, 58 Ark. 229; Halford v. Alexander, 12 Ala. 280; Ingersoll v. Wilson, 3 Johns. 437; Carney v. McDonald, 10 Heisk. (Term.) 234; Birch v. Triste, 8 East, 415; Black on Judgments, sec. 300. (3) The circuit court took judicial notice of the fact that the interlocutory judgment in this case, expressly and affirmatively found that the plaintiffs were at the time of the commencement of this suit the owners of an undivided interest in the land, and this court will do likewise. State v. Jackson, 106 Mo. 175; State v. Daugherty, 106 Mo. 182; State v. Ulrich, 110 Mo. 350; Fears v. Riley, 148 Mo. 49; Dawson v. Dawson, 29 Mo. 521; Ollesheimer v. Mfg. Co., 44 Mo.App. 172. It is so admitted and stated in the answer which appellants ask leave to file and in their statement of the case on page 14 of their brief. Hence, appellants seek to set aside the interlocutory decree in the partition, after the term at which it was rendered, on this motion in the nature of a writ of error coram nobis for an alleged error of fact which was expressly adjudicated and determined by that decree. (4) The interlocutory judgment in partition is conclusive as to any fact which was in issue, and was necessarily decided therein, although there was no express finding thereon. State ex rel. v. Branch, 134 Mo. 592; Short v. Taylor, 137 Mo. 518. All issues that might have been raised and litigated in a case are as completely barred as if they had been directly adjudicated. Donnell v. Wright, 147 Mo. 639.
This is a suit to partition certain lands in Wright county, Missouri, 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 et al., 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 seventeenth 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 defendant 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 defendant's attorneys, of the deed six or eight years before this motion was filed. Col. Musick on being recalled stated he had no recollection of Mr. Mansfield telling him of the execution of the quitclaim, but...
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