98 Mo. 452 | Mo. | 1889
— This is an action of ejectment for a part of fractional block 42 of the St. Louis Commons.
B. P. Switzer, who owned the property in question, conveyed it to Edwin Harrison by deed dated June 26, 1871. Hart, the plaintiff, read in evidence a sheriff’s deed, dated March 16, 1885, conveying to him the title and interest of Edwin Harrison. This deed is based upon a sale under an execution issued upon a judgment rendered against Edwin Harrison on January 22, 1885.
The evidence for the defendant shows that James Harrison died in 1870, and by his will devised and bequeathed two-fifths of all his property to his son Edwin Harrison, subject to certain deductions, and one-fifth to each of his three daughters. On the seventh of May, 1884, Mrs. Steedman, one of the daughters, and her husband, commenced a suit against Edwin Harrison and the other devisees for the partition of a
After this, and in March, 1885, Hart asked to be made a party to the partition suit, but his motion was overruled. Thereafter the commissioners, appointed to make partition, reported that the property was not susceptible of division, and such proceedings were had that it was sold, and Steedman, the defendant in this ejectment suit, became the purchaser of the parcel now in question, and received a commissioner’s deed therefor. One-third of the proceeds arising from the sale of .this parcel are in court for Hart.
The further evidence shows that Edwin Harrison and his father James were partners, the interest of Edwin in the partnership being one-third. The lands belonging to the firm were all in the name of Edwin. The parcel in suit was' conveyed to Edwin by Switzer because of debts paid for him on partnership obligations and out of partnership funds. The deed, however, was made after the death of James Harrison, Edwin Harrison says he settled with the other heirs after the death of his father, on the basis that he was to have the one-third and his sisters the two-thirds of this and other lands that stood in his name, and that he claimed no more. The evidence is clear that Hart had notice of the partition decree when he purchased at the execution sale. Other evidence offered by the plaintiff shows that this parcel of property was not inventoried as property
1. The case is discussed here, by appellant at least, as if the answer of defendant Steedman set up an equitable defense. It sets out the decree in the partition suit and the deed made pursuant thereto, and prays for a finding for defendant and a decree declaring him to be the owner of the property and entitled to the possession, and for such other orders, judgments and decrees as shall be right and proper. The pleader evidently supposed he was setting up some sort of an equitable defense, but there is no equity in the answer. All the facts stated in it could have been given in evidence under the general denial, and the case is one at law on both sides, and nothing else.
2. The first position of the appellant seems to be that partition cannot be made a mode of acquiring title, that it does not determine title, and is simply a possessory action, leaving the title as it found it. Such seems to be the law in some jurisdictions, but it is not the law of this state. Our statute requires and calls for a trial of the titles of the parties. Persons who may, upon £ £ any contingency,” have a beneficial interest must be made parties. The court must declare the titles and interests of the parties and give judgment accordingly. Adverse claims to the same portion may be tried and determined. The report of the commissioners when confirmed by the judgment of the court “shall be binding and conclusive upon all parties to the proceedings, and all other persons claiming under them.” The deed, where there is a sale, is a bar against all persons, parties to the suit, “and against all other persons claiming from such parties, or either of them.” In view of all of these statutory provisions, it was held at an early day that the judgment of partition establishes the title to the land, which is the subject of partition,
3. But it is said persons not made parties to the suit are not bound by the judgment, and this is true; but the proposition has no application to the present case. Hart purchased the interest of Edwin Harrison under a judgment which was recovered against him, not only after the second amended petition was filed, bring, ing this property into the partition suit, but after the interlocutory decree had been entered. He was a purchaser pendente lite, and took subject to the result of that suit. Says Mr. Freeman: “Purchasers pendente lite are as much bound by the final result of a suit for partition as they are by the final result of any other suit pending in reference to the property at the time of their purchase.” Freeman on Co-tenancy & Part. (2 Ed.) sec. 470. Besides this, it is shown that Hart had actual notice of the pendency of the partition suit. It follows that he can only claim the interest of Edwin Harrison in the proceeds of the sale, and that he has no just claim to the property purchased by the present defendant at the partition sale.
As before stated, the answer of Steedman sets up nothing in the nature of an equitable defense, and as no instructions were asked or given, on either side, we do not see that this record presents any other question for our consideration, and the judgment is affirmed.