Estes v. Nell

• Decision Date: 06 July 1897
• Citation: 41 S.W. 940,140 Mo. 639
• Parties: Estes et al. v. Nell et al., Appellants
• Court: Missouri Supreme Court

41 S.W. 940

140 Mo. 639

Estes et al. v. Nell et al., Appellants

Supreme Court of Missouri, Second Division

July 6, 1897

Appeal from Laclede Circuit Court. -- Hon. C. C. Bland, Judge.

Affirmed.

Mead & Loy and Thomas H. Musick for appellants.

(1) The petition can not be sustained because of multifariousness. Robinson v. Rice, 20 Mo. 229; Bank v Bayless, 41 Mo. 274; Mead v. Brown, 65 Mo. 552; Peyton v. Rose, 41 Mo. 257. (2) The decree of the circuit court in this cause erroneously fails to consider or dispose of the interest of Cu. Edna Nell. (3) This whole matter is res judicata by reason of the judgment of the circuit court of Greene county and the mandate of this court in the case of Estes et al. v. Nell et al., 108 Mo 172; Keith v. Keith, 109 Mo. 130; Boogher v Frazier, 99 Mo. 325; Pitkin v. Shacklett, 117 Mo. 548; Stump v. Hornback, 109 Mo. 277; Treadway v. Johnson, 39 Mo.App. 176; Chouteau v. Allen, 74 Mo. 58; Lackland v. Smith, 5 Mo.App. 579; Lackland v. Smith, 75 Mo. 307. (4) As the court made no order for continuance nor for summons to the infant defendants, there was no authority in the clerk to issue summons to them, the service of such summons was void, they were never properly in court, the court had no jurisdiction over them, had no authority to appoint guardian ad litem for them and such guardian ad litem had no authority to enter appearance or answer for them or enter any consent or make any admissions for them. Shaw v. Gregoire, 41 Mo. 407; Revely v. Skinner, 33 Mo. 98; McClure v. Farthing, 51 Mo. 109; Ins. Co. v. Bangs, 103 U.S. 435. Every allegation must be proven against infants. Revely v. Skinner, 33 Mo. 98; Hendricks v. McLean, 18 Mo. 32. (5) The infant defendants living on the premises with their mother had no such character of possession as made them proper parties to an ejectment suit. (6) The wife is not a proper defendant in ejectment even for her own lands, and even when she is widowed, in possession, after suit brought, by death or divorce of the husband, the suit must be dismissed. Bledsoe v. Simms, 53 Mo. 305; Meegan v. Gunsollis, 19 Mo. 417; Hunt v. Thompson, 61 Mo. 154; Evans v. Kunze, 128 Mo. 671; Spitts v. Wells, 18 Mo. 468. (7) The original answer in the ejectment suit was a general denial and did not and could not state an equitable defense. Hickerson v. City of Mexico, 58 Mo. 61; Sutton v. Dameron, 100 Mo. 141; Packet Co. v. Sickles, 5 Wall. 550. (8) There is no evidence submitted even tending to show that the amended answer in which it is claimed that an equitable defense was made, was put in for the minor defendants or that it was filed by the guardian ad litem at all. Revely v. Skinner, 33 Mo. 98; Sutton v. Dameron, 100 Mo. 141; Wood v. Jackson, 8 Wend. 10; Lawrence v. Hunt, 10 Wend. 80; Hart v. Steedman, 98 Mo. 452; Kimmel v. Benna, 70 Mo. 62; Avery v. Fitzgerald, 94 Mo. 207; Ekey v. Inge, 87 Mo. 493; Foster v. Evans, 51 Mo. 39; Towns v. Nims, 20 Am. Dec. 378; Russell v. Place, 94 U.S. 606. (9) If both an equitable and a legal defense were raised and passed upon in the ejectment, while the equitable issue would be res judicata the legal defense would not be so; the equitable defense could not be retried but the legal defense might be. Rogers v. Brown, 61 Mo. 187; Pim v. City of St. Louis, 122 Mo. 654; Cunningham v. Snow, 82 Mo. 587. (10) Judgment in ejectment on a legal title is not res judicata. In this action legal issues may always be resubmitted and retried. Kimmel v. Benna, 70 Mo. 52; Swope v. Weller, 119 Mo. 556; Sampson v. Mitchell, 125 Mo. 217; Callahan v. Davis, 125 Mo. 27. (11) The purchasers under the power conferred by the will hold in privity with Henry Nell, and not in privity with his heirs. Osgood v. Manhattan, 3 Cow. 612; Alsop v. Mathis, 21 Am. Dec. 703; McLean v. Meek, 18 How. 16; Valsain v. Clotier, 22 Am. Dec. 179; Hill v. Tucker, 3 How. 466; Stacy v. Thrasher, 6 How. 44. (12) The requirements of the will wrought an equitable conversion of the four forties into money which was not and could not be represented by Henry Nell's heirs. They were foreign to it, and held no privity toward it. Craig v. Leslie, 3 Wheaton, 563; Roland v. Miller, 100 Pa. St. 47; Brolasky v. Gally, 51 Pa. St. 509; Ray v. Monroe, 47 N.J.Eq. 352; Underwood v. Curtis, 127 N.Y. 523; Collins v. Camp, 61 Am. Dec. 179. (13) When the sale was made by Henry Nell's administrator with will annexed, it related back to Nell's death and the proceeds were personalty from that event. Loftis v. Glass, 15 Ark. 680; Pratt v. Taliaferro, 3 Leigh (Va.), 419; Brolasky v. Gally, 61 Pa. St. 509; Roland v. Miller, 100 Pa. St. 47. (14) Neither these purchasers nor anyone under or through whom they claim or with whom they are in privity ever had a day in court in the ejectment and therefore the judgment in that action can be no estoppel upon them. Crane v. Bolles, 24 A. 391; Collins v. Camp, 61 Am. Dec. 179.

F. M. Mansfield and Goode & Cravens for respondents.

(1) The question of title between the plaintiffs and Catherine Ruckle, Della, William, Elmer and Samuel Nell is res adjudicata. It was determined in the ejectment suit and the judgment therein is binding and conclusive against those parties and everyone claiming under them. Foote v. Clark, 102 Mo. 394; Nave v. Adams, 107 Mo. 414; Bank v. Bartle, 114 Mo. 276. (2) In such case the finding of the court as to the facts pleaded in such defense becomes binding and conclusive and may be set up against a subsequent attempt to raise the same issue. Preston v. Ricketts, 91 Mo. 320. (3) Ejectment suits should and must be brought against the party actually in possession. The statute is express to that effect. R. S. 1889, sec. 4629; Ins. Co. v. Cummings, 90 Mo. 267; Shaw v. Tracy, 83 Mo. 224. (4) An equitable conversion of the land into money by the executor occurs where there is a positive direction to sell, and the time by which the executors are to comply is made certain and fixed by the will without any discretion being left with them. Compton v. McMahan, 19 Mo.App. 494; Throckmorton v. Pence, 121 Mo. 50; Bouton v. Thomas, 46 Hun. (N. Y.) 249; Snowhill v. Snowhill, 3 Zab. (N. J.) 447; Jackson v. Barr, 9 Johns. 104; Jackson v. Schamber, 7 Cowen, 187. (5) Musick as administrator of Henry Nell could only sell such land as his testator owned when he died. Throckmorton v. Pence, 121 Mo. 57. (6) It was not necessary to make the husband of Della Faulkner a party to this suit. Cochran v. Thomas, 131 Mo. 258. (7) There is not a word of evidence in the record tending to show Cu. Edna was living when the judgment in ejectment was rendered. That being true the presumption will be indulged in favor of the decree that the interest had been inherited by her brothers and sisters prior to the judgment. Brand v. Cannon, 118 Mo. 595; Smith v. Johnson, 107 Mo. 494; Miller v. Leeper, 120 Mo. 466; State ex rel. v. Maloney, 113 Mo. 367; Flynn v. Neosho, 114 Mo. 567; Halsey v. Meinrath, 54 Mo.App. 335. (8) As to the contention that the bill is multifarious it would be sufficient to say that no such point was raised in the lower court so far as the record shows, and therefore can not be raised here. Hall v. Johnson, 57 Mo. 521; Bank v. Gallaher, 43 Mo.App. 482; Mellor v. Railroad, 105 Mo. 455. (9) Actual possession is not necessary to enable a tenant to maintain partition against a cotenant. To defeat such action there must have been an ouster by such cotenant. Rozier v. Griffiths, 31 Mo. 171; Wommack v. Whitmore, 58 Mo. 448. (10) The record does not affirmatively show that the heirs of Manning Harris, that is, the plaintiffs, were parties to the tax suit which led up to the tax deed. This must appear for their interests to pass by it. Gitchell v. Messmer, 87 Mo. 131; Boatmen's Bank v. Grewe, 84 Mo. 377. (11) It is elementary law that a judgment of nonsuit or dismissal, while a final judgment, is never a bar. Freeman on Judgments [3 Ed.], secs. 264-562; National Water Works Co. v. School District, 23 Mo.App. 227; Lee v. Kaiser, 80 Mo. 431.

Burgess, J. Gantt, P. J., and Sherwood, J. concur.

OPINION

Burgess, J.

This is an action for the partition of the following described land in Wright county, Missouri, to wit, the southeast quarter of the northeast quarter and the east half of the southeast quarter of section 8, and the west half of the southwest quarter of section 9, in township 29, of range 12, containing in all two hundred acres. The suit was begun in the circuit court of said county, but the venue was subsequently changed to the circuit court of Laclede county, where a trial was had resulting in a judgment in favor of plaintiffs, from which defendants Thomas H. Musick, Della Nell, now Faulkner, Catharine Ruckle, John Ruckle and Lewis E. Musick appeal.

The parties all claim title under Manning Harris, deceased. The plaintiffs claim the undivided two thirds of said land as the children and heirs of said Harris. The defendants Elmer Nell, Samuel Nell, Shelly Musick and D. L. Benson answered, disclaiming any interest. The defendants Della Faulkner, formerly Nell, Catharine Ruckle, formerly Nell, Thomas H. Musick and Lewis E. Musick answered separately, each claiming to be the legal and equitable owner of certain portions of the land described in their respective answers and disclaiming all interest in the balance of the land.

Manning Harris was the owner of all the land involved in this litigation. Some time in the year 1860 he traded it to one D B. Lawrence for a part of a stock of goods, who in pursuance of the trade took possession of the land, but never received any deed or other evidence of title from Harris for it. Said Harris died in March, 1862, leaving as his only heirs the plaintiffs Agnes and Mary, and one Thomas H. Harris. In 1868, one Henry Nell by mesne conveyance acquired the...