49 Mo. 345 | Mo. | 1872
delivered the opinion of the court.
As the order in partition stood when the original writ of error issued, it was erroneous, and it is not clear that the nunc pro tunc order was properly made. Courts have a right, even after appeal, to correct obvious errors in the records, not by entering orders and judgments which should have been made, but rather those which were actually made but which the clerk neglected to enter.
The order in this case lo.oks very much like the correction of an erroneous judgment rather than the correction of an erroneous entry of a correct judgment. The former will not be permitted, while the latter is legitimate, even after the case has gone into another court. (DeKalb County v. Hixon. 44 Mo. 341.) But the assignee of defendant Meatt is estopped from seeking to set aside the proceedings. He stands in Meatt’s shoes, and even with less title to favor, for he is an outsider who has bought the interest of one disposed to litigate, and is seeking to disturb a matter in which he has no concern. This champertous proceeding certainly
The judgment before its correction was not void. It was simply erroneous, and the parties might, if they chose, abide by it and receive their distributive share of the money made by the salé of the lands, or they might insist that the proportion to which each one was entitled should be first ascertained by the court according to the statute. But to permit them first to receive their money, and then, without complaining of unequal distribution, or showing any fraud or mistake, and after the purchasers had paid for the land and made valuable improvements, to'reverse the proceedings and have a new partition, would outrage every principle of justice and enable parties to judicial proceedings to perpetrate glaring frauds. It is seldom that the doctrine of estoppel is more properly invoked than in the case at bar. The land was sold fairly and honestly and the first payment made; the purchasers went into possession and have made permanent and valuable improvements ; this payment was distributed, and Meatt received his share without complaint; the property appreciates in value, and some speculator being advised of the irregularities in the order of sale, advances Meatt the balance of his share of the purchase-money, or nearly so, and takes an assignment of his interest in the estate, and now in Meatt’s name moves to set aside the proceedings for irregularity. Meatt himself should not be allowed to do this, least of all his assignee.
In proceedings in partition the sale is by the act of the parties themselves as well as by a judgment, and is not a sale in invitum like an ordinary sheriff’s sale under execution. (Pentz v. Kuester, 41 Mo. 447.) It does not matter who are the petitioners ; the parties are all before -the court in a proceeding for the equal benefit of all, and may be all considered as petitioners or plaintiffs. Hence an acquiescence in the judgment, either by petitioners or respondents, by voluntarily receiving the proceeds, is such an affirmance as waives a right to ask for its reversal. It is indeed a voluntary satisfaction, and places it beyond the further control of the court. It is true a satisfaction
The judgment will be affirmed.
