41 Mo. 416 | Mo. | 1867
delivered the opinion of the court.
This was an action brought by the plaintiff against the de
Prom the facts as agreed upon it appears that the plaintiff in this case sued one James W. Powell, brother of the defendant here, in the Montgomery Circuit Court, in an action of trespass, and at the April term, 1841, obtained a judgment against him for one hundred dollars and his costs of suit. At the time of obtaining the judgment, James W. was an infant not over seventeen years of age. The defendant appeared to the action only by attorney, no general guardian or guardian ad litem having been appointed for him, and the question of minority was not brought to the attention of the court. In May, 1841, Gott caused an execution to be issued on his judgment against the defendant, and proceeded to sell all the right, title and interest of the said land in controversy, in October, 1841. At the sale Gott became the purchaser of the land for thirty-three dollars. Gott was acquainted with the defendant, and knew at the time of the commencement of the suit, and at the time of the sale by the sheriff, that he was under 21 years of age. Before the land was sold, and on the same day in the presence and hear-of Gott and others at the sale, it was publicly announced by John, a brother of the defendant, and by others, that the judgment under which the land was about to be sold had been rendered against the defendant while he was an infant and that he was still an infant; that he had not been defended by guardian and that the judgment was void, and that the sale would pass no title. James W. and William L. Powell, who owned the other half of the tract of land, it being 160 acres, together with their mother and her family, remained on the land, claiming the same as their own, until a short time after James arrived at age, when he sold his interest to Thomas J. Powell for four hundred dollars; after which
Had the defendants insisted on their demurrer it is perfectly clear that it should have been sustained, for the petition contained a misjoinder of causes of action and was multifarious. And when one is in possession of land asserting an exclusive title thereto, an action for partition cannot be maintained against him by one out of possession who claims a common title thereto; the claimant must first establish his title in an action in ejectment—Lambert v. Blumenthal, 26 Mo. 471. As the defendants proceeded to trial on the facts without pressing their demurrer, they must be regarded as having waived the same.
The only question, then, before us is whether Gott has any title on which he can maintain an action. He does not stand in the position of an innocent third party purchasing under an erroneous judgment, whose rights will be protected, for he was a party to the record and cognizant of all the facts, n Cow. & Hill’s Notes to 2 Phil, on Ev. it is said: “ If
The restitution to which, the party is entitled upon the reversal of an erroneous judgment is everything which is still in the possession of' his adversary. Where a man recovers land in a real action, and takes possession or acquires title to land or goods by sale under execution, and the judgment is afterwards reversed, so far as he is concerned his title is at an end, and the land or goods must be restored in specie— not the value of them, but the things themselves. There is an exception where the sale is to a stranger bona fide, or where a third person has bona fide acquired some collateral right before the reversal—Bac. Abr., tit. Error, M. 13; Dater v. Troy Turnp. & R.R. Co., 2 Hill, 629; Lovett v. The Germ. Ref. Ch., 12 Barb. 67; McTilton v. Love, 13 Ills. 486; Bank of U. S. v. Bank of Washington, 6 Pet. 8; Clark v. Pinney, 6 Cow. 297; Hubbell v. Broadwell, 8 Ohio, 120; Green v. Stone, 1 H. & J. 405; St. John’s College v. Murcott, 7 T. R. 259.
Upon the reversal of the judgment in the Montgomery Circuit Court, Powell was entitled to full restitution of the land, the equity of no stranger having intervened, and Gott’s title entirely ceased.
Judgment affirmed.