185 Mo. 393 | Mo. | 1904
This is an action in ejectment to recover ten and thirteen-hundreths acres of land in the city of Mexico, Audrain county, it being a part of the west half of the northwest quarter of the northeast quarter of section 35, township 51, range 9. The petition is in the usual form, and the ouster is laid as of the'---day of February, 1902. The answer is a general denial, with a plea of the Statute of Limitations. At the close of the whole case the court directed a verdict for the defendant, and from the judgment thereon the plaintiff appealed.
The facts in judgment are these:
George F. Muldrow is the common source of title, he having acquired the land by a patent from the United States government on August 30,1838. By a quitclaim
On October 25, 1853, Mary L. Clark and her husband, and Sarah I. Muldrow, instituted in the circuit court of Audrain county a suit for the partition of the land so conveyed, against George F. Muldrow and his wife, Charles A. Muldrow, and George H. and Mary Bell Clark, the minor children of Mary L. . Clark. George F. Muldrow and his wife entered their appearance, Charles A. Muldrow was a minor and was served with process. The judgment dated October 25, 1854, recites that the court found that the defendants had been duly served with process issued from the court, and the circuit court appointed guardians ad litem for each of them, John P. Clark being appointed guardian for his minor children, and the guardians filed answers for the minors, and the court found the interest of the parties in the land to be as follows: to Margaret Mul-* drow (wife of George F. Muldrow) and to Charles A. Muldrow each one undivided one-fourth interest in fee, and to Sarah I. Muldrow and Mary L. Clark each one undivided one-fourth in the land, “during their natural lives and after their death, in fee simple to their heirs, ’ ’ and decreed partition accordingly, and appointed commissioners to make partition in conformity therewith, and to malm report.
On April 20, 1855, the commissioners filed their report that the land could not be divided in kind and thereupon on April 23, 1855, the court ordered that the sheriff sell the land on twelve months’ credit. This
At some date between the renewed order of sale and the report of sale, not clearly shown by the record, but stated to be in 1856, Sarah I. Muldrow married A. A. Sparks, and on July 11,1857, the plaintiff was born, and she is the only child and heir of Sarah. I. Muldrow.
On June 12, 1858, the court ordered the then late* sheriff, who had sold the land while sheriff, to make distribution of the proceeds of sale as follows: “To Mary L. Clark and her heirs, and to Sarah I. Sparks, formerly Sarah I. Muldrow, and her heirs, each one-fourth part thereof for their use and benefit during their natural lives, and at their death in fee simple to the heirs of their body, and to the said Margaret Muldrow, and Charles A. Muldrow each the one-fourth part thereof in fee simple.” The order then directed that the costs of the case be paid by the parties according to their respective interests, and then concludes as follows: “And afterwards, to-wit, on the same day John P. Clark produced his bond as guardian of the heirs of Mary L. Clark which bond was examined by the court and approved and ordered to be entered of record. And also on the same day came Aquilla A. Sparks and produced his bond as guardian of the heirs of Sarah I. Sparks, which was by the eourt examined, approved, and ordered of record.” The bond was shown to be among the files of the papers, and filed for record on May 7, 1858. It recites the appointment of A. A. Sparks by the circuit- court, as guardian for Mollie Eliza Sparks, infant under twenty-one years and only child of Sarah I. Sparks.
Sarah I. Sparks, the life tenant, and the plaintiff’s mother, died on February 14, 1902, and this action was brought to and tried at the June term, 1902. The plaintiff claims one undivided one-fourth interest in the land as remainderman in fee under the deed of her grandfather, George F. Muldrow, dated October 19, 1853. The defendant claims by mesne conveyances from John P. Clark, the purchaser at the partition sale.
As stated, the circuit court directed a verdict for the defendant and the plaintiff appealed.
The position of the plaintiff is thus stated by her counsel:
“Plaintiff’s contention is that these partition proceedings as to her are utterly void. Not only because of the failure to comply with the law for procedure in partition suits, but having been bom during the progress of the case and before the land was disposed of to John P. Clark, any sale had, under said proceedings, could carry only her mother’s life estate and did not affect her interest in the remainder. ’ ’
I.
The first contention of the plaintiff is that the judgment in partition is void, because the plaintiff came into existence before it was rendered, and was not made a party to the proceedings nor served with process, and therefore the appointment of a guardian for her was coram non judice.
This contention is predicated upon the theory that the order of distribution of June 12, 1858, was the final judgment in the partition suit.
An analysis of'the statute in force at that time is necessary to determine these contentions.
When the judgment of October 25,1854, was entered, the act -of February 21, 1845, was in force (E. S'. 1845, p. 764). That was the revision of 1845. That act was made up of the various acts in force prior thereto, together with various new provisions, and the result was an act the provisions of which were not harmonious. For the purposes of this case it is only necessary to refer specially to the following inconsistencies: sections 56, 57, 58, 59 and 60, of chapter 128 of the Revised Statutes of 1845, are substantially a copy of the act of February 23, 1839 (Laws 1838-9, p. 39). This was
But at the same Session of the General Assembly the act of January 7, 1839, relating to “Partition” was passed (Laws 1838-9, p. 88). This act provides substantially that if the commissioners found that only á part of the land was susceptible of division in kind, they should divide that only, and report to the' court,' and that the court should order the sheriff to sell the part that could not be divided in kind and to divide the proceeds among the parties to whom no land had been allotted. This act also provided for a trial and settlement by the court of all adverse claims to the proceeds of sale.
The act of February 15, 1841 (Laws 1840-41, p. 108), provides that if the commissioners report that the land, or any part, is not susceptible of division in kind, the court shall order it sold, and made further provision as to the duties of the sheriff in making such partition sales, and gave him power to take notes or bonds for the purchase-money, “and to pay over the same according to the order of the court, ’ ’ and to make deeds to the purchasers, and made the sheriff liable on his
It will be observed that the sheriff is required to pay out the proceeds of the sale “according to the order of the court,” and to make report, and the court is to allow such costs and expenses “as are legal and reasonable. ’ ’
It will be further observed that the act of January 7,. 1839, provided that- if any person claimed any .of the proceeds of sale, that portion should be “paid” (this was changed in sec. 42, p. 772, B,. S. 1845, to read “shall be retained by the sheriff”) To the sheriff and be by him held subject to the further order of the court, and that the claimant should file suit in the circuit court against the other claimants therefor.
These two acts are substantially sections 28 to 39 of the Bevised Statutes of 1845.
Section 39 of the Bevised Statutes of 1845 embodies the provisions of the act of 1841, which requires the sheriff to make a report of the sale and expenses and directs the court to allow such of the costs and expenses as are legal and reasonable. In the revision of 1845, section 40 provides how the proceeds of sale shall be divided, which is as follows: “Sec. 40'. The proceeds of every such sale, after deducting the costs and expenses of the proceedings, shall be divided among the parties whose rights and interests shall have been sold, in proportion to their respective rights in the premises, and shall be paid to them, their guardians or legal representatives, by the sheriff.”
Thus it appears that under the law the sheriff was to distribute the proceeds of sale to the parties, without
Section 66 of the Revised Statutes of 1845, for the first time gave to the court the right to determine in the first instance that the land was not susceptible of division in kind, and to order a sale of the land without appointment of commissioners, but this did not change the other provisions of the law already pointed out, as to the duty of the sheriff and the power of the court after the sale.
Section 41 of the Revised Statutes of 1845, provided that if any of the parties whose interests were sold were absent from the State or without a legal representative in this State, or were not known or named in the proceedings, the court should order their share invested “in public stock of the United States or of this •State,” or loaned upon real estate security.
These were the provisions of the law applicable to such cases, that were in force when the judgment of October 25,1854, was rendered, and these were the provisions of the law when the sale was made on April 29, 1856 (R. S. 1855, ch. 119, pp. 1109, et seq.), for the Revised Statutes of 1855 made no change in these respects.
Thus it appears that under the act relating to “Dower,” approved February 23, 1839, which became sections 56 to 60 inclusive of chapter 128 of the Revised Statutes of 1845, it was provided that when the commissioners reported that the land was not susceptible of the division in kind, the case was required to be dismissed.
Whereas the “Partition” act, approved January 7, 1839, and the act approved February 15, 1841, became sections 28 to 39 inclusive of chapter 128 of the Revised Statutes of 1845, and provided that when the commissioners reported that only a part of the land
The Revised Statutes of 1845 for the first time gave the court power to find in the first instance, without thip appointment of commissioners, that the land was not susceptible of division in kind, and- to order the sheriff to sell it. -But this in no wise affected the other provissions aforesaid as to the respective duties and powers of the court and of the sheriff as to the distribution of the fund after the sale.
The sum of the whole matter, therefore, is that when the judgment of October 25, 1854, was entered and whenvthe land was sold on April 29, 1856, the law was that the court was required to find the interests of the parties and to decree partition of the land accordingly. If the land did not appear to be insusceptible of division in kind, the court was required to appoint com
The conclusion is inevitable that the judgment of October 25, 1854, was the final judgment in the case. At that time the plaintiff was not in esse, and her mother was not even married. So that the plaintiff could not have been made a party to the action.
The sheriff was required to make distribution of the funds by paying them to the parties or 'their guardians or legal representatives. (R. S'. 1845, ch. 128, sec. 41.) '
It appeared by the judgment that one-fourth of the proceeds was decreed to belong to the plaintiff’s mother, Sarah I. Muldrow, for life, with remainder in fee to the heirs of her body.
Under a liberal construction of section 41, aforesaid, it would have been competent for the court to have ordered that such share should be invested and the interest arising therefrom to be turned over to the life tenant and after her death the fund to go tó the heirs of her body. But. the failure of the court to so order was only a matter of error, and did not take away the jurisdiction of the court over the subject-matter of the cause and did not make the judgment void. Likewise the payment-of the one-fourth interest to the plaintiff’s mother, by the sheriff, if he did so pay it, was a matter
•It was not until the revision of 1865 (R. S. 1865, ch. 152, sec. 39, p. 615) that the duty of making distribution of the proceeds of sale was taken away from the sheriff and devolved upon the court. ■ That section also-provided for the court ascertaining the present value of the dower interest, and paying it to the widow out of the proceeds, the balance to be paid to the remaindermen, or their guardians or legal representatives.
This change in the statute for the first time made •the order of distribution, to be entered after the sheriff had made a report of sale, the final judgment in the case.
In Durham v. Darby, 34 Mo. 477, this court held that under the Revised Statutes of 1855 (which was exactly like the Revised Statutes of 1845 in that respect) the judgment of partition and order of sale was the final judgment and that thereafter the case was out of court. And in Hinds v. Stevens, 45 Mo. 209, this court pointed out that the change made by the revision of 1865 was intended “both to protect the sheriff and any
It follows that as the plaintiff was not in esse when the final judgment and order of sale were entered in the partition suit, she could not have been made a party to that suit or have been served with process. But that her interests were represented, first, by her mother who was in esse, and who wa& the life tenant, and second, by her guardian who was appointed for her by the court.
Speaking to a similar question, and to the constitutionality of a statute which makes the life tenant in esse the representative of the remainderman unborn at the date of the judgment in partition, this court, per Napton, J., disposed of the question in this wise, in Reinders v. Koppelmann, 68 Mo. l. c. 501:
“But the question remains, will this remainder defeat the partition because it is unknown who will be the heirs of Mrs. Koppelmann until her death? We think not. Apart from any statute, the English courts had no hesitation in decreeing partitions in such cases.' In Wills v. Slade, 6 Ves. Ch. 498, it was held by Lord Eldon that ‘it was no objection to a partition that other persons may come in esse and be entitled; for if so, in every case where there is a settled estate with remainder to persons who may come in esse, there never can be a partition.’ In Gaskell v. Gaskell, 6 Sim. Ch. 643, it was held that a tenant for life of an undivided share of an estate, with remainder to his unborn sons in tail, may file a bill for partition, and the decree would be binding on the sons when in esse. In Mead v. Mitchell, 17 N. Y. 210, the court of appeals of New York, composed of eight judges, recognized with unanimity the same doctrine under the statute of that State which is substantially identical with ours. The parties not in esse are represented by those who take subject to their
“It is insisted, however, that our statute is unconstitutional, for the reason that it conflicts with the provision which declares ‘that no person shall be deprived of life, liberty or property without due process of law. ’ This provision of our Constitution, doubtless, may be found in that of New York where the ease of Mead. v. Mitchell was decided, and in that of most other States, and is certainly in the Constitution of the United States, and is in all a translation from Magna Charta, which we may assume was binding on the English judges. The due process of law required is not dispensed with in our statute. ’ ’
This case was cited and approved in Sikemeier v. Galvin, 124 Mo. l. c. 371, where Braoe, J., said: “In Reinders v. Koppelmann, 68 Mo. 482, the petitioner was the owner of the life estate in the whole tract proposed to be divided,, and also of an interest in the contingent remainder in favor of the persons who, upon the determination of the life estate, would take the fee, and it was held that no objection could be made to the
It is argued, however, that in proceedings in equity for a partition, as also under the statute of New York as shown from the reference in Mead v. Mitchell, 17 N. Y. 210, the fund arising from the sale is substituted for the land, and that as there was no such order of substir tution in this case, the judgment is void.
But it must be always borne in mind that the proceeding was not a bill in equity for partition, but was purely a suit for partition under the statute of this State.
The statute of 1845 made no provision for an order of substitution, but on the contrary directed the sheriff to distribute the proceeds of the sale according to the order of the judgment, and made the sheriff liable on his bond in the performance of such duty. The statute also gave the court power to order the interest of a non-resident, or of one who had no legal representative in this State, or who was unknown or not named in the proceeding, to be invested. But, as hereinbefore pointed out, the failure of the court to so order might have been error, but did not affect the jurisdiction of the court, or render the judgment void.
Other interesting questions have been learnedly discussed by counsel, but as these considerations show that the title of the defendant, acquired by mesne conveyances from the purchaser at the sheriff’s sale in partition, is a good and valid title, as against the parties
The judgment of the circuit court is right, and if is, therefore, affirmed.