59 Mo. 217 | Mo. | 1875
delivered the opinion of the court.
This was an equitable proceeding to set aside a judgment rendered in partition and a sale made thereunder.
It was alleged in the bill in substance that the plaintiff and some of the defendants were owners, as tenants in common, of a piece of land, and that defendant, Ross, caused a suit in partition to be brought and a decree rendered for the sale thereof, and that the same was sold without any notice, legal or otherwise, having been given to plaintiff, and that plaintiff had no knowledge thereof, until he ascertained the fact after the sale, and that the decree was procured by the fraudulent acts of the defendant Ross.
The court below gave judgment in accordance with the prayer of the petition, set the decree in partition aside, and adjudged the sale under it to be void.
But the counsel for the defendants insist, that, if we should be of the opinion that the evidence.established the fact that the judgment in partition was obtained by fraud, still the plaintiff cannot maintain this suit, that, if fraudulent, it is simply a nullity, and that his rights were not impaired. For this position, Peak vs.Laughlin (49 Mo.,162), is cited and relied on. But that ease is clearly distinguishable from this. There the suit was brought to set aside a judgment in a partition case were the plaintiffs were not parties. As they were not parties to the .proceeding, their rights were not concluded or bound by the record, and there was nothing to prevent the assertion of their interest wherever it might .be drawn in question. But here the case is otherwise. The judgment and the deed, made at the sale in pursuance thereof, casts a cloud upon the plaintiff’s title. As the judgment is fair upon its face, and the plaintiff appears as a party thereto, he could aver nothing against it in a collateral proceeding, and his only effectual remedy is to set it aside by a direct proceeding instituted for that purpose.
As the case stands, by a fraudulent contrivance, the plaintiff has been deprived of his rights without ever having had his day in court. This is contrary to the fundamental principle that hearing should always precede condemnation. As
Judgment should be affirmed,