6 Mo. App. 1 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is a suit in ejectment. On September 19, 1860, Andrew McDermott and Margaret, his wife, executed a conveyance of the land in controversy to Patrick McQueeney, in trust for the sole and separate use of the said Margaret and her heirs and assigns forever, with power in the trustee to sell and convey, lease, or mortgage the premises or any part thereof, as Mrs. McDermott might in writing direct. Some other conveyances were afterwards executed by McDermott and by his grantees therein, concerning all which it is sufficient to say that their general design was, apparently, to strengthen the title of Mrs. McDermott’s trustee under the first deed. On December 8, 1864, a judgment was rendered against Andrew McDermott for $135, in favor of Isaac H. Erisman and his wife, Ann Eris-man, who is the cestui que trust of the plaintiff in this suit. At a sheriff’s sale under the judgment, on February 23, 1865, the property in controversy was purchased by Thomas
The plaintiffs contend that all the interest which Margaret McDermott had, or could transmit to the defendants, was represented by her trustee, Patrick McQueeney, against whom the decree was unimpeachable; that the cestui que trust was not a necessary party to the proceeding, and hence it was immaterial whether Mrs. McDermott was living or not at the time of the decree, and unnecessary for her heirs to have been introduced as parties. In support of these
As Margaret McDermott was dead when the decree was rendered, it was a nullity as to her rights. Defendants here claim that a judgment which is void as to one defendant is void as to all. But that rule applies only to judgments at law. Dickerson v. Chrisman, 28 Mo. 134. It is sufficient for the purposes of this case that the decree upon whose strength alone the plaintiffs' recovered in the Circuit Court was inoperative against the defendants, who stand in the shoes of Margaret McDermott, deceased.
Plaintiffs urge that inasmuch as the trust-deed was void for frauds to which Margaret McDermott was a party, her heirs and representatives must abide the consequences of her guilty participation. But this assumes the very matter that was to be determined in the former suit, and upon' which Mai'garet McDermott, or her representatives after, her, had a right to be heard up to the moment when the decree was delivered. If her heirs had been made parties,
The judgment must be reversed and the cause remanded.