67 Mo. 280 | Mo. | 1878
This suit is ejectment for the recovery of certain lands in the county of Cape Girardeau. . The petition is in the usual form, and the answer a general denial. Judgment was rendered for the defendant on the trial, from which plaintiffs have appealed. Both parties claim title through Hiram S. Sloan, as the common source. Plaintiffs assert their right to the laud in question by virtue of their being heirs of said Sloan, and the defendant claims title by virtue of a sheriff’s deed thereto, the sale being made under a decree of the circuit court of said county, for the purpose of partition among the heirs of said Hiram S. Sloan, deceased. The record of the partition suit was put in evidence, from which it appears that plaintiffs, in conjunction with Samuel A. Sloan and Hiram M. Hill and Samuel A. Hill, minors and grand children of Hiram S. Sloan, deceased, were parties defendant. All of said defendants were m'nors except Margaret Brawley. Service was had on Samuel A. Sloan, and an affidavit was made before the clerk in vacation, stating that Margaret Brawley, Sarah A. Sloan and William R. Sloan (who are the plaintiffs in this suit), were non-residents of the State. As to them the clerk made an order of publication which was duly published, and the publication proved. It also appeared that a copy of the petition, and writ directed to
The plaintiffs assail the validity of the judgment in partition, mainly on two grounds: First, because there was no service of notice on Hiram M. and Samuel A. Hill, minor defendants; Second, because there was no legal order of publication of notice ■ as to Margaret Brawley, Sarah A. Sloan and Willian R. Sloan.
As to the first point, it is only necessary to observe that the said Hiram M. and S. A. Hill are not complaining here, but on the contrary the evidence shows that they ratified the proceeding by accepting their distributive share of the proceeds of the sale made under the decree, and under the rule laid down in 44 Mo. 125 ; 49 Mo. 106, and Stafford v. Roof, 9 Cowen 626, their right to question the proceeding might well be doubted. This, however, is not necessary to determine, as they are not complaining.
As to the second point it may be said that both in the interlocutory and final judgment, the statement is
Affirmed.