89 Mo. 263 | Mo. | 1886
This was a suit for the partition of certain real estate. The pleadings disclosed adverse claim of the defendants, George W. Hart and Nelson R. Collins, to the one-third interest formerly owned by Henry P. Hart. There was an order of sale of the whole of the premises, the court reserving the right to determine
George W. Hart filed answer to the petition of Collins, and in that he alleges that the deeds from Henry P. Hart to Spelman, and from the latter to Collins, were made and contrived by the parties thereto-to defraud the creditors of Henry P. Hart. Collins replied by general denial. The court found the issues-for Collins, and ordered the money to be paid to him.
1. Upon filing a transcript of a justice’s judgment-with the clerk of the circuit court, the judgment from that time becomes a lien upon the real estate of the defendant, and execution may issue thdreon from the-circuit court, and the judgment may be revived the-same as judgments of the circuit court, R. S., secs. 2998-9. As the deed [from Henry P. Hart to Spelman was made and recorded after the filing of the transcript,.
The conclusion is irresistible, from these statutes .and adjudications thereon, that the effect of the appeal is to vacate and set aside the judgment of the justice, •save where the appeal, not the suit, is dismissed. Or, as was said in Turner v. Northcut, supra, when considering the right of the plaintiff to dismiss his suit after it reached the circuit court: “ When an appeal is taken
2. The evidence on the issue of fraud is conflicting. No instructions were asked or given, and if this issue of fact is to be treated as one at law, then the finding of the trial court is conclusive; if as one in equity, then we may examine the evidence. It is the duty of the court in partition suits to ascertain and declare the rights of the parties from the evidence, or from the verdict by which any issue of fact shall be determined, and to give judgment that partition be made. R. S., sec. 3352. When any of the parties claim the same share adversely to each other, “the court may either decide upon such adverse claim,” or direct the share to be set off, subject to the controverted claims. Sec. ° 3355. If the share to which there are adverse claims be sold, then the money is to be retained by the officer, subject to the future order of the court. Sec. 3383. Other sections provide how the issues shall be made up in order that the court may determine to whom the money belongs; and section 3386, among other things, declares with reference to the issues thus made:
The judgment of the court of appeals is reversed and the cause remanded, to the end that the judgment of the circuit court may be affirmed.