118 Mo. 476 | Mo. | 1893
This is an action of ejectment brought to the April term, 1887, of the DeKalb circuit court for possession of three undivided sevenths of two hundred acres' of land in said county, described as the west half of the southwest quartion of section 35 in township 59, and the west half of the northwest quarter and the southeast quarter of the northwest quarter of section 2 in township 58, all in range 31. Both parties claim under one Lewis Hamer, who died in 1853, seized of the lands in controversy, together with eighty acres of other land in the same county (all of which he acquired in 1852), leaving eight children, one of whom died soon afterwards, unmarried and without issue. The other seven are still living. Five of these children were minors at home at the time of the death of their father, three of whom became of age before June 27, 1860.
Lewis Hamer left a will, the material provisions of which are as follows:
“I give and bequeath unto my beloved wife, Susannah Hamer, all of my property and estate, real, personal and mixed, that may be remaining after the payments of my just debts and funeral expanses, dur
The plaintiffs on the trial proved title in Lewis Hamer to the northwest quarter of the northwest quarter, and the southeast quarter of the northwest quarter of section 2, and introduced a deed from Andrew Hamer and wife to Lewis Hamer for all the remainder of the lands in controversy, and proved that in 1852 said Lewis took possession of all of the said land, and remained in possession until his death; that his widow, Susannah Hamer, who afterwards married one William Daken, continued to reside on the land until 1857 or 1858, when she removed to Maysville, where she resided until her death, which occurred July 22, 1883; that defendant had been in possession of all the land for about twenty years, and the value of the monthly rents and profits. They also introduced the will of Lewis Hamer, and proved that plaintiffs, Andrew Hamer,
The defendant introduced a sheriff’s deed from Daniel Ransom, sheriff of DeKalb county,' duly acknowledged in open court, on the twentieth, day of March, 1868, which recited that “on the ninth day of September, 1863, a decree and order of sale was ordered and made in the circuit court of the county of DeKalb, in favor of William Daken and Susannah Daken, and against Andrew Hamer, Jerome Hamer, Stephen Hamer, Jessie Hamer, Thomas A. Busby, Mary Busby, Sarah Hamer, and Susannah Hamer, for the sale of the lands in controversy (describing them), formerly owned by Lewis Hamer, deceased, a copy of which said decree and order of sale * * was, on the fourteenth day of February, A. D. 1868, issued or made out by the clerk of the said court, on the fourteenth day of February, A. D. 1868, said copy of said decree and order of sale was to me, the sheriff of the county of DeKalb aforesaid, delivered.”
The deed then recites all the facts relating to notice and sale upon the terms mentioned in the order which would be necessary in case of a sale under execution; that Ira Brown was the highest and best bidder at the price and sum of $3,000, the payment of the purchase price, purports to convey to said Brown all the right, title, interest and estate which the said Lewis Hamer, at the time of his death, or the said parties since his death had or have of, in and to the said real estate. The defendant proved that all the right, title and interest of said Brown in and to said lands had, on the fifth day of May, 1869, become vested in defendant.
The decree of the DeKalb circuit court, under which the sheriff’s sale was made, was introduced in evidence. It was made and entered on the ninth day of September, 1863.
“Now on this day comes here into court the plaintiffs, by their attorney, and' the defendants,' although being solemnly cabed, come not, but make default, and this cause being submitted to the court for a hearing, and the court on hearing the evidence, and being fully advised in the premises, orders and decrees that a sale be made of the real estate of Lewis Hamer, deceased, former husband of Susannah Daken, the plaintiff in this case; that is to say, the following real estate described in the will of the said Lewis Hamer, deceased, to-wit: The northwest fourth of the southwest fourth of section twenty-six and the southwest fourth of the northeast fourth of section sixteen, and the west half of the southwest fourth of section No. thirty-five, all in township No. 59 and of range thirty-one, and the west half of the northwest fourth and the southeast fourth of the northwest fourth of section No. two, township fifty-eight, range thirty-one, and it is ordered and adjudged by the court that the real estate above described be sold upon the following terms, to-wit: Terms of sale to be paid in money; that is, one-third to be paid in cash, one-third in six months and one-third in twelve months, the purchaser or purchasers thereof to give bond with approved security.”
The plaintiff objected to the reading of the said last order in evidence in this case, for the reason that said order was irrelevant, incompetent, immaterial evidence, and because, as shown by said order, it was
At the March term, 1862, the court made the following order in the said case:
“The court appoints William Moore guardian ad litem for Sarah and Susannah Hamer, minor defendants. .Guardian ad litem files his answer, and the cause is continued until the next term of this court.”
At the March term, 1865, the court 'made an order in said cause, “that the sheriff of DeKalb county proceed to advertise and sell, as the law directs, the land described in a decree of this court in the above entitled cause at the September term, A. D. 1863, in accordance with said decree.”
At the March term, 1865, the records, show that the sheriff filed a report of the sale of other lands mentioned in the decree, and he was ordered to pay the proceeds to the parties entitled thereto. Another record entry introduced shows that at the September. term, 1866, the sheriff filed a report of a further sale of some of said real estate and was ordered to pay the proceeds to the parties entitled to the same. It was admitted that all the files and papers in said cause were destroyed at the burning of the DeKalb county courthouse in 1878.
The plaintiffs, to further sustain the issues on their part, introduced evidence tending to prove that in the year 1860, and prior to the September term, 1860, of said circuit court, a true copy of an original writ of summons in the said case of William
"State of Missouri, “County of DeKalb.
ss.
“The state of Missouri to the sheriff of Putnam county, .greeting:
“You are hereby commanded to summons Mary Y. Busby that she be and appear at our DeKalb circuit court, before the judge thereof, at the court house in Maysville, on the first day of the next term of .said court, to be begun and held on the 3d day of September, 1860, then and there to answer the petition of William Daken and Susannah Daken, his wife, and have you there this writ:
Witness, Robert A. Hewitt, clerk of the circuit court of DeKalb county, with the seal thereof affixed at office in Maysville, this 27th day of June, A. D. 1860.
“[seal] R. A. Hewitt, Clerk.
Which" said petition was, and is, in words and figures following, viz.:
“William Daken and Susannah Daken v. “Andrew Hamer, Jerome Hamer, Stephen Hamer, Jessie Hamer, Thomas A. Busby and Mary Busby, his wife, Sarah Hamer and Susannah Hamer, Defendants.
“In the Circuit Court of DeKalb County, Mo. March Term, 1860,
“The plaintiffs state that the plaintiff, Susannah
“Plaintiffs further state that the said Lewis Hamer
“Isaac Si-iambaugh,
“Attorney for plaintiffs.?.
“William Daken, one of the plaintiffs in the above entitled cause, for himself and as agent for his coplaintiffs, makes oath and says that the above petition and the matters therein as stated he believes to be true.
“William Daken..
Subscribed and sworn to before me February 7, 1860.
“R. A. Hewitt,
“Clerk.”
The court sustained a demurrer to the evidence, and, plaintiffs having filed their motion for a new trial in due time, it was overruled and they bring their writ of error.
I. This action is prosecuted on the assumption that the judgment and sale under which defendant claims title are void and hence can be assailed in this collateral proceeding. It appears from the uncontroverted evidence that the judgment roll, containing all the original papers in the cause of William Daken and wife against
The record, entry does not recite the- service upon the several defendants; but want or jurisdiction over the persons of the defendants in that suit cannot be predicated upon this mere silence of the record entry. That action was pending in the circuit court of DeKalb county, a court of general jurisdiction both at law and in equity, and nothing shall be intended to be out of its jurisdiction, save that which affirmatively appears to be so. McClanahan v. West, 100 Mo. 309. And this presumption obtains as well with regard to the minors as to the adults, from the entry appointing guardians ad litem for them. McClanahan v. West, supra.
II. But it is urged that the circuit court of DeKalb county had no jurisdiction of the subject-matter of the action, which resulted in the order of sale. Plaintiffs correctly concede that if it can be made to appear that' a cause of action was presented to the circuit court over which it was given jurisdiction by the law then in force, then it matters not how erroneously that cause was stated, nor that the demurrer would have been sustained on account of its defective statement, it would still not be void, but they assert that the petition showed a want of jurisdiction in this, that it was a proceeding to sell lands for the education of the minor children of Lewis Hamer of which the county court had exclusive jurisdiction.
The plaintiffs in that action, it will be seen, averred the execution of a last will by said Lewis Hamer, and the creation thereby of a trust in the property devised, and bequeathed by him for the support and maintenance of his widow and minor children. It
It was a part of the ancient and well defined jurisdiction of the courts of chancery to construe wills and declare the limitations of trusts created thereby, and the creation of our county and probate courts has not divested them of this power. Church v. Robberson, 71 Mo. 326. And it is a familiar rule that a court of equity will never permit a trust to fail merely for the want of a trustee, and if no other trustee is designated, the courts of equity will take upon themselves the execution of the trust. Bank v. Chambers, 96 Mo. 459. Again, it is the practice of the court of chancery to permit guardians, under the direction of those courts to convert real property into personalty, and personalty into realty. Matter of Salisbury, 3 Johns. Chancery Reports, 347; Ex parte Jewett, 16 Ala. 409; Story’s Equity Jurisprudence [13 Ed.], secs. 1058, 1059, 1060, 1357.
Under the allegation of the petition, then, the circuit court of DeKalb county was asked as a court of equity to construe a will, declare a trust, and enforce it, by a sale of these lands. In other words, it was called upon to hear and determine a cause, the subject matter of which was clearly within the general jurisdiction confided to it, by our laws, and it was asked to
III. The remaining contention, that the sheriff’s sale was void because there was no renewal of the order to sell, is equally untenable. It is assumed that it was a statutory partition, and, hence, that a renewal order was necessary; but as we have seen, in was an equitable proceeding, and the judgment was ample authority for the sheriff to sell until all the land was sold and, the execution could issue, as it did within five years after- the entry of the judgment'. 2 Revised Statutes, 1855, p. 904, sec. 12.
It follows that as the judgment was not open to collateral attack, and the sale was made within the time prescribed by statute, the circuit court very properly sustained the demurrer to the evidence. No question of equity is involved in the record. We are not called upon to investigate any misappropriation of the fund deriyed from the sale. The judgment is affirmed.