87 Mo. 577 | Mo. | 1885
This is a suit in ejectment, begun in tbe circuit court of St. Louis county in 1877 to recover a parcel of land in tbe subdivision of tbe common of Car-, rondelet, south of tbe river Des Peres, of 39-98 arpensr, known as lot forty of said subdivision. On tbe trial de-. fenda'nt bad judgment which, on plaintiff’s appeal, was-, affirmedby the St. Louis court of appeals, and from which, plaintiff appeals to this conrt. On tbe trial it was agreed that defendant was in tbe possession of tbe land sued for. as the lessee of J ohn H. Tracy; that on tbe twenty-eighth, of March, 1857, John Sigerson was seized in fee-simple of the land in controversy. '
Tbe plaintiff put in evidence a deed of trust executed by- Sigerson tbe twenty-eighth of March, 1857, conveying among other property, tbe lot in controversy to secure the-payment of a noté for five thousand dollars. Default having been made in the payment of said note, the trustee, Wil-: liams. on the thirtieth of November, 1869, sold the said lot to the plaintiff, Jesse Holladay, and executed and. delivered to him a deed for the same which was duly remorded on the sixth of December,-. 1869;'• ... •;
The ’defendant, in support of her title, put in evi
It further appears that the commissioners made re-; port, which was set aside, and on the twenty-fourth of December, 1872, a renewed order was made for the sale of the land, in pursuance of which it was sold by the sheriff, at which sale a large proportion of the property was purchased by Holladay and a large portion purchased by John H. Tracy, including lots sixty-one and sixty-two ; that the sheriff made report of sale, which was oni the twentieth day of February, 1873, approved by consent -of parties, and the sheriff was directed to make deeds, and after paying costs to pay over the balance of the proceeds to the parties entitled. It further appears that ¡on the seventh-of -April, T873, a final decree and order of -distribution was made, by which there wa.s decreed to bet paid Holladay the sum of $3,508.79 fo.r h.is share of three*
Under the facts in evidence we cannot see how any other judgment could have been rendered than the one which was rendered. Thé title acquired by Holladay in? 1869, and upon which reliance is placed for recovery of the land in question, was acquired while the proceedings in the partition suit were in progress, and more than three years prior to the order of sale made in 1872, of nearly four years prior to final order of distribution, made in April, 1873, under which he was entitled to receive three-fifteenths of the price paid by Tracy for the land in controversy. The participation of Holladay in the partition proceedings ; his assertion in his answer that the title in fee to the land in suit, was in Hughes in trust for himself and others ; his receipt of his proportion of the proceeds of the sale, according to the doctrine announced by Herman on Estoppel, 419, and Freeman on Judgments, section '304, estops him from setting up the title acquired by him in 1869, it having been acquired more than three-years prior to the order of sale.
Besides this, under section 3376, Revised Statutes, the deed made by the sheriff to Tracy is a bar against all persons interested in the partition proceedings, who were made parties to it, and aga-inst all other persons claiming, undér them, or either of them. In the case of Forder v. Davis 38 Mo. 108, it was held that a judgment in partition establishes the title to the land which is the subject of partition, and' in an action of ejectment upon an adverse possession or an adverse title existing at the data