Holladay v. Langford

| Mo. | Oct 15, 1885

No'rton, J.

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•deuce the record and proceedings in a partition suit ip the circuit court of St. Louis county, in which Emma Sanderson and other new plaintiffs and the plaintiff in this suit, Jesse Holladay, and others were defendants, from which it appeared that in the petition for partitiop It was alleged that. James M. Hughes held the title to the property therein described, among which was included the property sought to be recovered in this suit, to the -following uses and trusts, viz. : To his own use fourr fifteenths, to use of George B. Sanderson four-fifteenths, to use of Thomas Marshall four-fifteenths, to use of Jesse Holladay three-fifteenths; and that Holladay, in the answer filed by him, admitted that the legal title was in Hughes as avered in the petition, and alleging that he was the owner of an undivided one-fifth of said lands. It also appeared from the record in said cause that on the second of - May, 1863, the court found that Hughes was seized in fee of the property described in the petition, to the uses and trusts stated in the petition, and decreed partition accordingly and appointed commissioners to make the partition according to the rights of the parties as adjudged.

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* fifteenths of the proceeds of the land sold. Defendant also put in evidence the deed of the sheriff conveying tq Tracy the said land purchased by him, and, also, a lease-from said Tracy to defendant. The cause was submitted bn the above state of facts without any' instructions-having been asked or given, and judgment was rendered for defendant, from which plaintiff appealed to the St-Louis court, where the judgment was affirmed, and from which"the plaintiff has appealed to this court.

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 bf the partition it is final and conclusive upon all parties to the record, and in the cases of Durham v. Darby, Adm'r, etc., 34 Mo. 447" court="Mo." date_filed="1864-03-15" href="https://app.midpage.ai/document/durham-v-darby-8001488?utm_source=webapp" opinion_id="8001488">34 Mo. 447, and Parkinson v. Caplinger, 65 Mo. 292, it is held that" a judgment that partition be made is only interlocutory, and that the final judgment is the order of the court confirming the report of the commissioners or directing a sale of the property. Inasmuch, therefore, as the adverse title relied upon by Holladay was acquired by him in 1869, during the pendency di the partition proceedings and prior to the final decree br order of sale made in 1872, and was not set up by him before said final judgment under the ruling of this court in the case of Forder v. Davis, supra, he cannot now be beard to set it up as against the purchaser at the partitidn sale. Judgment affirmed,

in which all concur.