Virgin v. Kennedy

• Decision Date: 13 October 1930
• Docket Number: No. 28952.,28952.
• Parties: SALLIE VIRGIN, Appellant, v. MEDORA KENNEDY, JOHN W. TAYLOR and JAMES F. TAYLOR; MEDORA KENNEDY, Appellant.
• Court: Missouri Supreme Court

32 S.W.2d 91

SALLIE VIRGIN, Appellant, v. MEDORA KENNEDY, JOHN W. TAYLOR and JAMES F. TAYLOR; MEDORA KENNEDY, Appellant.

No. 28952.

Supreme Court of Missouri, Division Two.

October 13, 1930.

Appeal from Cass Circuit Court. — Hon. C.A. Calvird, Judge.

AFFIRMED.

D.C. Barnett, J.R. Nicholson and W.M. Anderson for appellants.

(1) Cause No. 4701, vested the fee simple title in the land in question in the inheritors of Owen Moffit and Martha P. Taylor, subject to the life estate of William B. Taylor. (2) Where a judgment is offered in evidence to prove prior adjudication of the question involved, it is the duty of the court to construe the judgment and to interpret its meaning the same as any other written instrument offered in evidence. Raney v. Home Ins. Co., 246 S.W. 57. (3) In construing a judgment reference must be had to the pleadings in the case in which it was rendered. Raney v. Home Ins. Co., 246 S.W. 57. (4) Portion of a judgment not warranted by the pleadings is subject to collateral attack, in the absence of estoppel or equitable rights growing out of the judgment. Raney v. Home Ins. Co., 246 S.W. 57; Charles v. White, 214 Mo. 187, 21 L.R.A. (N.S.) 481, 127 Am. St. 674; Gray v. Clement, 246 S.W. 940. (5) The minority of the remaindermen rendered them incapable either of acquiescing in the life tenant's conduct or legally objecting to the same. Gray v. Clement, 286 Mo. 110, 227 S.W. 111; Gray v. Clement, 246 S.W. 994. (6) Limitations and adverse possession do not run against remainderman in favor of life tenant during the life estate. Hall v. French, 165 Mo. 430; Keith v. Keith, 80 Mo. 125; Rothwell v. Jenison, 147 Mo. 601; Fischer v. Sieckmann, 125 Mo. 165; Colvin v. Hanenstein, 110 Mo. 575; Thomas v. Black, 113 Mo. 67; Null v. Howell, 111 Mo. 273; Sherwood v. Baker, 105 Mo. 472; Hickman v. Link, 97 Mo. 482; Salmon's Admr. v. Davis, 29 Mo. 176; Charles v. Pickens, 214 Mo. 212; Manning v. Coal Co., 181 Mo. 359. (7) Life tenant by declarations, acts or claims of greater or different estate cannot make it adverse so as to enable him or those claiming under him to invoke the statutes of limitations. Keith v. Keith, 80 Mo. 125; 29 Mo. 176; Keith v. Keith, 109 Mo. 130. (8) Respondents, John W. Taylor and James F. Taylor, as devisees of William B. Taylor, acquired no greater or different right or title than that possessed by him at the time of his death. (9) At the time of the partition of the Owen Moffit and Martha P. Taylor estates the minor heirs-at-law of Owen Moffit and Martha P. Taylor, were incapable by reason of their minority of consenting to take other land in lieu of their share of the estate of Martha P. Taylor. Gray v. Clement, 246 S.W. 942; Carson v. Hecke, 282 Mo. 580, 222 S.W. 850.

T.N. Haynes for respondents.

(1) William B. Taylor, plaintiff in the former partition proceedings, as survivor of his wife, Martha P. Taylor, under the deed from James Moffit, heir of Owen D. Moffit, owned and held title in fee to a share in the 200 acres of land, partitioned therein; and he, as such husband, also, owned a life estate by the curtesy in the share therein so owned in fee by his said deceased wife; and as such owner of interests therein, he had the right to have partition of said lands between himself and the others in interest. Atkinson v. Brady, 114 Mo. 200; Reinders v. Koppelmann, 68 Mo. 501; Preston v. Brant, 96 Mo. 552. (2) Under Sec. 3346, R.S. 1879, being Sec. 48, p. 616, G.S. 1865, it is provided a general guardian could put his ward under the jurisdiction of the court, by appearing for him in his capacity as guardian without service of process on the ward, in partition proceeding, and thereby bind the ward by the judgment rendered. Payne v. Mesek, 114 Mo. 631; LeBourgeoise v. McNamara, 82 Mo. 192. In partition proceedings guardians derive their powers from the partition act, and the general rule that a guardian ad litem has no power to admit material facts in the conduct of the trial, so as to bind his ward, does not cover partition proceedings. Payne v. Mesek, 114 Mo. 631; LeBourgeoise v. McNamara, 82 Mo. 189; Kite v. Thompson, 18 Mo. 461. (3) Although Sallie Virgin and Medora Kennedy were minors at the time of the former partition proceedings, they were legally served with process, as was their guardian, who filed answer in their behalf, and also, filed exceptions to the commissioners' report, thereby directly raising the issue as to the right of William B. Taylor to have assigned and set off to him, by title in fee, the two twenty-acre tracts of land in dispute. The judgment of the court so rendered on such issues, was against the said Sallie and Medora, and the title in fee simple thereto was confirmed and adjudged to be in said William B. Taylor, and that judgment is res adjudicata of the issues raised by appellants in this case, and bars their claim as set up in their petition. Edwards v. Harrison, 288 Mo. 240, 236 S.W. 328; Rupp v. Moliter, 9 S.W. (2d) 609; Bobb v. Graham, 89 Mo. 200; Holliday v. Langford, 87 Mo. 577; Jackson v. Miller, 288 Mo. 232, 232 S.W. 104; First National Bank v. Bowman, 15 S.W. (2d) 851; 34 C.J. 511, 953; Jennings v. Cherry, 257 S.W. 440; Bobb v. Kier, 246 S.W. 928. (4) William B. Taylor was owner of a share and interest in said 200 acres, partitioned in said former proceeding, in fee, and was entitled to have set off and assigned to him a share in fee therein, and his share in fee was properly assigned to him; but if it had been that he was entitled to a life estate only therein, and there had been assigned to him a share in fee, the judgment, having become final, is binding on all parties thereto and their privies. Edwards v. Harrison, 288 Mo. 240, 236 S.W. 328; Bobb v. Graham, 89 Mo. 200; Holliday v. Langford, 87 Mo. 577. (5) Where, in partition proceedings, one of the parties is awarded a share in fee instead of for life, and the court approves the award, the judgment so awarding and defining the title, is binding on all the parties to the proceeding and their privies, including unborn persons of their class; and such judgment is not subject to collateral attack. Edwards v. Harrison, 288 Mo. 240, 236 S.W. 328; Holliday v. Langford, 87 Mo. 577; Jackson v. Miller, 232 S.W. 105. (6) Sec. 2023, R.S. 1919, which has always been the law in this State, provides, that if no cause for disapproval of the commissioners' report be shown, the report shall be confirmed, and final judgment rendered thereon, which judgment shall be binding and conclusive upon all parties to the proceedings, and all persons claiming under them. Collier v. Lead Co., 208 Mo. 246; Spitts v. Wells, 18 Mo. 471; Bushman v. Bushman, 279 S.W. 123; Forder v. Davis, 38 Mo. 107; Hart v. Steedman, 98 Mo. 456; Smith v. Liene, 231 Mo. 215; Yates v. Johnson, 87 Mo. 217. (7) If the partition was unequal or unjust, it should have been corrected when the commissioners made their report, but it was adjudged by the court to be equal and just, and all parties in interest abided thereby, and accepted and received the benefits, and appellants sold and disposed of their shares, and are barred from further litigating the issues involved. Spitts v. Wells, 18 Mo. 468. (8) The appellants, having received and accepted the allotments to them made in the former partition proceedings, and disposed of them, and remained silent for more that fifty years, are estopped and barred from now claiming any interest to the lands set apart to others. Bogart v. Bogart, 138 Mo. 419; Fischer v. Sieckmann, 125 Mo. 165; Clyburn v. McLaughlin, 106 Mo. 521; Austin v. Loring, 63 Mo. 19; Jones v. Patterson, 307 Mo. 462. (9) William B. Taylor was clearly entitled to have assigned to him out of the lands partitioned by former proceeding, a share in fee simple, and the two twenty-acre tracts in controversy were so assigned to him; and by his acts in giving deeds of trust thereon, devising same to respondents, making expensive and lasting improvements thereon, it is shown that he, at all times, claimed and asserted title in fee from 1873 to the date of his death in 1925, — more than fifty years, in the exclusive possession of same adverse to appellants and every one else, and respondents, as his devisees have title by limitation, if not otherwise. Bryant v. West, 219 S.W. 359; Huntington Real Estate Co. v. Megaree, 217 S.W. 305; Hendricks v. Musgrave, 183 Mo. 300; Whitaker v. Whitaker, 175 Mo. 1; Dunlap v. Griffith, 146 Mo. 283; Coulson v. La Plant, 146 Mo. 283; Swope v. Ward, 185 Mo. 316.

COOLEY, C.

Action to determine title to and for partition of forty acres of land. The judgment below, in the Circuit Court of Cass County, was for defendants John W. Taylor and James F. Taylor, adjudging them to be the owners in fee of the land. Plaintiff Sallie Virgin and defendant Medora Kennedy are both named as appellants here. The record certified to this court shows that while they both joined in the bill of exceptions the appeal was taken by plaintiff only, which fact, however, in the view we take of the case, makes no difference in the disposition of the appeal. As counsel on both sides refer to plaintiff and defendant Medora Kennedy as appellants, we shall for convenience so refer to them herein.

This case involves primarily the effect of a partition suit tried about 1873. The land in controversy is forty acres, the west half of the southwest fourth of the southwest quarter of Section Twelve, and the south half of the southeast fourth of the southeast quarter of Section Eleven, all in Township Forty-five, Range Thirty-one, in Cass County, and constituted part of two hundred acres of land owned by Owen D. Moffit at his death. Moffit is the common source of title. He died intestate about 1862, seized in fee simple of the two hundred acres, leaving a widow, Martha, and seven children. Three of the children, Elizabeth, William and James, as we understand the record, were by a former marriage. Martha thereafter married one William B. Taylor...