Bailey v. McGinniss

NaptoN, Judge, delivered.the opinion of the court. This was an ejectment to recover 180 acres of land in Clay Countyí The case was tried by the court, and the plaintiffs recovered 8-9 of the land. The land in dispute belonged to the estate of ¥m. Eupe, deceased. There were nine heirs of said Eupe, to-wit: four sons, Andrew, Eicliard, David and Harvey,and five daughters, Mrs. Malott, Mrs. Carroll, Mrs. Hayden, Mrs. Ish and Mrs. 'Willoughby, the last of whom died before her father, leaving two children, who represented her portion of the land. The plaintiffs claim indirectly through a judgment in partition of the estate among the heirs, and a sale under this judgment, and a deed from the sheriff. The defendants claim 6-9 of the title, by virtue of a deed executed by the parties holding an interest to this extent, after the commencement of the suit in partition, and before the judgment and sale and deed by the sheriff. It seems that one Chapman sued Harvey Eupe, one of the heirs, in attachment and obtained a judgment, and purchased his interest in the estate of his father under execution, and obtained a deed, by which he became the owner of said Harvey Eupe’s interest in the land; and on the 26th Feb. 1SC9, said Chapman and Andrew J. Eupe instituted in the Circuit Court of Clay Co., a proceeding for partition. This suit is entitled “Andrew J. Eupe and Andrew L. Chapman, plaintiffs vs. Susan E. Malott and Hiram Malott, her husband, Mary M. Ish and John Ish, her husband, Zelpha A. Carroll and James J. Carroll her husband, Delilah Jane Hayden and Elijah Hayden, her husband, James J. Willoughby and Sarah E. Willoughby, defendants.” — 366 — From this title of the ease it appears, that only the female-representatives of Rape or their descendants were made parties defendants ; but the petition explains that the plaintiff, Andrew J. owned 2-9, his own share, and that of his brother, David, and the "Willoughby’s 2-9, although the evidence shows that this is a mistake, and the interest of Richard is entirely omitted. As the deed to McGinniss, defendant, from Andrew J. Rape and Mrs. Malott, and Mrs. Ish, and Mrs. Carroll and Mrs. Hayden,was dated 17th April, 1869, it will be necessary to notice the various steps taken in the partition suit, from which proceeding and judgment plaintiffs derive their title. The suit in partition was begun 26th Feb., 1869. On March 1st, an order of publication was made in vacation against Susan E. and Hiram Malott, non-residents, notifying them to appear to the April Term of the Clay Circuit Court, 1869, which term commenced 'Apl. 28th, 1869. By reason of a change of the term in this Circuit, the summons, dated March 2, was made returnable to the April Term, 1869 ; and on the summons the sheriff returned service on the Carrolls on 17th Aug., 1869, on the Haydens on 8th June, 1869, on the Willoughbys, on 31st Aug. 1869, and the Malotts and Islis not found. This return was made Aug. 31st, 1869. On the 17th March 1869, the record of the Circuit Court contains this entry “ Andrew J. Rnpe and Andrew L. Chapman vs. Susan E. Malott, etc.: Now at this day come the parties aforesaid by their attorneys and on motion, Susan E. Malott and Hiram Malott, her husband, two of the defendants are made parties plaintiff in this cause.” And on the same day is this entry: “ Andrew J. Rnpe, Andrew L. Chapman, Susan E. Malott and Hiram Malott, her husband, against Mary M. Ish and John Ish, her husband. Zelpha A. Carroll, etc. Now at this day come the parties aforesaid, by their attorneys, and consent that partition of the lauds mentioned in plaintiff’s petition be made, in conformity with the prayer thereof,which said real estate is thus described — 367 — (here follows the description) and the court finds the rights of the parties in interest in said real estate to be as follows, viz: that Andrew J. Eupe is entitled to two undivided ninths of said land; that Andrew L. Chapman, Susan E. Malott, Hiram Malott, her husband, in right of Susan E., Mary M. Ish and John Ish her husband, in right of said Mary M., Zelpha A. Carroll, James J. Carroll, her husband, in right of said Zelpha A.,Delilah Jane Hayden and Elijah Hayden, her husband, in right of said Delilah Jane and James J. 'Willoughby are each entitled to one undivided ninth,” and the court appoints commissioners to make the division accordingly. It will be observed that only 8-9 are disposed of in this decree, and that nothing is said of the remaining 1-9. The next entry on the record of the partition suit is dated September 29th, 1869, and the original title of the case is resumed, to-wit: Andrew J. Eupe and Andrew L. Chapman vs. Susan E. Malott, etc. It then appears that the plaintiffs come into court and prove, to the satisfaction of the court, that Susan E. Malott and Hiram Malott, and Mary Ish and John Ish are non-residents of this State; and, thereupon, an order of publication is made in the usual form, requiring said defendants, non-resident, to appear at the next regular term of the court, at Liberty, on the 3rd Monday of March next, 1870. And in the record of said March Term, 1870, and on the 25th of March, proof of this publication was made; andón the 26th March, 1870, appears the following order, in the case still entitled “Eupe & Chapman vs. Malott.” Now at this day comes Eachael A. Eupe, widow of Eichard E., and files her petition, asking to be made a party defendant, together with her two children, William C. and Eraneis M., minors. Whereupon Henry Smith is appointed guardian ad litem for said minors, and the said widow and said Smith, guardian as above stated, filed their answer to the petition, at the same term, although it is not stated on what day. It does not appear that any summons issued to the minors. This answer asserts that Eichard Eupe died, seized of one-ninth interest — 368 — in said land, and prays for an allotment of sncli share to the widow and children of said Richard. The final judgment in the case appears on the record, as made March 29th, 1870. This judgment, with the title of the case, is thus: “Andrew J. Rupe and Andrew L. Chapman against Susan E. Malott and Hiram Malott, her husband, Mary M. Ish and John Ish, her lmsband, Zelpha A. Carroll and James J. Carroll, her husband, Delilah Jane Hayden ‘and Elijah Hayden, her husband, Sarah E. Willoughby and James J. Willoughby, her husband, (sic) Rachael A. Rupe, William Corum Rupe and Frances Marion Rupe.” “'And now come the parties, plaintiffs and defendants, and the cause coming on to be heard on the petition, answer and. evidence, and the court being sufficiently advised, etc., finds that the above named parties, plaintiffs and defendants, are the owners in fee simple of, and the only persons having any interest in, the following described real estate,” (here follows a description of the land). “And the court further finds, that Andrew L. Chapman, Susan E. Malott, wife of Hiram M.‘, Mary M. Ish, wife of John Ish, Zelpha A Carroll, wife of James J. Carroll, Delilah J. Hayden, wife of Elijah H, Sarah E. Willoughby, wife of James J. Willoughby, are each of them entitled to one-ninth part of said real estate, and that - Andrew J. Rupe is entitled to two-ninths, and that Rachael A. Rope, William C. and Frances M. Rape are each entitled to one twenty-seventh part. “And the court further finds, that from the nature and amount of said real estate, and from the number of owners, partition thereof in hind cannot be made among the owners.” “ The court therefore decrees, adjudges and orders that the real estate be sold by the sheriff, during some day of the next term of this court, such sale to be made under the regulations proscribed by law, and the proceeds arising from such sale are ordered to be divided among the parties according to their respective interests, as herein above decreed, and the sheriff is further ordered to make report of his proceedings herein at the next term of this court and this cause is continued.” — 369 — And the record proceeds to show that in September and December, 1870, the sheriff reported the sale under which plaintiffs claim and it was approved by the court. Bailey and Chapman were the purchasers at $500, and Chapman afterwards sold to the co-plaintiff. The record of the suit of Chapman vs. Harvey Eupe was also offered in evidence, but it is not material in this action. Chapman’s title to his interest is clear and his transfer of this to the plaintiff Woods. The deed under which defendants claim was offered in evidence, but excluded. This deed is dated April 13th, 1869. This deed is from Andrew J. Eupe, James J". Carroll and his wife, Elijah Hayden and his wife, John Ish and his wife, and Hiram Malott and his wife, and purports to convey to Mc-Ginniss for $2,640, the land in controversy. It conveys 5-9 of the land, or 6-9, if Andrew J. Eupe owned 2-9, and so it purports to convey 2-3 or 6-9. This deed was properly acknowledged by all the parties to it, and all the acknowledgments were taken in Clay County, except that of Ish and wife, which were taken in Jackson. This deed was filed for record on April 19, 1869. It was proved that the plaintiff, Woods, was attorney for plaintiff in the attachment suit and in the suit for partition, and that the plaintiff, Bailey, was clerk of the Circuit Court of Clay Co., during all the proceedings. The defendants offered proof to show that David Bupe’s interest was conveyed to Andrew J. Enpe, but the evidence was excluded on the general ground that Andrew J. Bupe’s interest was determined by the judgment in partition. The defendants also proposed to show that Eichard A. Bupe’s interest had been duly passed to Wm. Hayden, before the deed to defendant of April 13, 1869. This was excluded on the same general ground that this deed was made pendente lite. The defendants then offered a deed from the Curator of James J. Willoughby, and Sarah E. Willoughby minors, dated Nov. 2, 1869. It does not appear what disposition was made — 370 — of this offer ; but as the title derived from it was disregarded, it may be assumed to have been rejected. The following declarations of law were asked by defendants and were refused on the trial. 1st. That under the deed of Andrew J. Bupe, John H. Ish and Mary Ish, James J. Carroll and Zelpha A. Carroll, Hiram Malott and Susan Malott, Elijah Hayden and Delilah Playden, dated the 13th April, 1869, all the interest they own in the land in controversy was conveyed to defendant, and that so far as the interest of the above named parties in the said lands is concerned, thus conveyed to defendant, it did not pass to plaintiffs under the sheriff’s deed read in evidence, to Bailey & Chapman and by Chapman to Wood. 2nd. That under the deed of Chrisman, Curator of the estate of James J. and Sarah E. Willoughby, their interest of one undivided ninth of the land in controversy, was conveyed to the defendant, and the interest thus conveyed of the said James J. and Sarah E. Willoughby, did not pass under the sheriff’s deed to Bailey & Chapman and from Chapman to Wood. 3rd. That the judgment of partition on which the sale was made, and the sheriff’s deed executed, were void. 4th. That if, by any order of the court at the March Term, 1869, Susan Malott and her husband were made parties plaintiffs, and at the same time a judgment of partition was made by the court, by consent of the parties, or their attorneys, and commissioners were appointed to divide the'land, the court, at a subsequent term, had no power to make an order for the sale of said lands, without a report from the commissioners, that the land could not be divided without great prejudice to the owners; and, ás no such report is shown to have been made, the judgment of the court on the 29th of March, 1870, under which said land was sold, is void, and the sheriff’s deed to Bailey & Chapman conveys no title. 5th. That Wm. C. Bupe and Prances Marion Bupe, minors, having by an order of the court, made the 26th March, 1870, been made parties to the partition suit, and having no legal — 371 — notice of the proceedings, the judgment of partition made by the court of the 29th day of March, 1870, was illegal and void, the answer of the guardian ad litem, showing that it was filed on the 25th day of March, 1870, when the order of the court made the infants parties on the 26th, the day after the answer was filed. 6th. That under the deeds and records read in this case, plaintiffs are not entitled to recover. The court found that the plaintiffs were entitled to 8-9 of the land described in the petition; and a judgment was given for the possession of 8-9 of said lands. The usual exceptions were taken and the usual motions for a new trial and in arrest were made. It will be seen from this statement, that the controlling point in it dependsjupon the relative value of a sheriffs deed made on a sale under a judgment in partition, and a previous deed by various parties to this proceeding in partition. The deed under which defendants.claim was made in April, 1869; and it is insisted that when this deed was made, the proceeding in partition was lis pendens, and so the court below decided and excluded all evidence to show this title. It is clear that the doctrine of lis pendens only applies when parties to a suit have been notified of it. There is no lis pendens as to strangers until process is served, or there is a voluntary appearance of the parties to it. (Herrington vs. Herrington, 27 Mo., 562; Murray vs. Ballou, 1 Johns. Ch., 576; Metcalf vs. Smith’s Heirs, 40 Mo., 572 and cases cited.) It is necessary, therefore, to examine the record of the partition suit, through which the plaintiffs claim, in order to ascertain how the grantors in the deed to defendant of 17th April, 1869, stood in regard to that proceeding. The grantors in that deed were Andrew J. Eupe, Malott and wife, Ish and wife, Carroll and wife, Hayden and wife. So far as Andrew J. Eupe is concerned, he was a plaintiff in the case; and, of course, his deed was made pendente lite. The service of the writ was not made on the Carrolls till 17th August, 1869 ; on the Haydens on 9th June, 1869 ; on — 372 — the 'Willoughbys on the 31st August, 1869. The Malotts and Ishs were not served. So that, so far as the writs were concerned, neither the ITaydens or Carrolls or Malotts or Ishs were affected by lis pendens. The interest of the Willoughbys was boughtin November, 1869, subsequent to service on them ; but the Willoughbys being minors, the conveyance to defendant was from their curator. But the record of the proceeding on the 17th of March, 1869, shows that the Malotts were made parties plaintiff; and on that day an interlocutory judgment is entered, which is said to be by consent. It is evident, however, from the subsequent portions of the record, that these entries were mistakes ; at all events they were utterly disregarded by the court and all the parties to the proceedings. We consider the judgment of March, 17th, 1869, as a nullity, if any such was rendered. Nothing was done under it; and the case proceeded as though no such judgment had been rendered. The title of the case, subsequent to the entry of this date, in which it is said that Malott and wife appeared as parties plaintiff, is still retained as it was at the first, in which the only plaintiffs were Andrew J. Rupe and A. L. Chapman; and an order of publication was obtained by the plaintiffs at the September Term, 1869, six months after the entry that they appeared as parties plaintiff. We must take the whole record together and the publication in September, and the subsequent proof of it in March, 1870, and the subsequent judgment at this March Term of the court, show most clearly that the first judgment was treated by the court as a nullity. No report from the commissioners appointed in March, 1869, appears to have been made. If the Malotts were parties plaintiffs and consented to the judgment of March, 17th, 1869, if judgment it can be called, why procure an order of publication against them at the ensuing September Term, and establish such publication by proof, at the March Term, 1870 ? If the judgment made March 17th, 1869, was really a judgment quod parti-tiofiat, why proceed a year afterwards to make another judg* — 373 — ment, in which (as the statute authorizes) the court dispensed with the appointment of commissioners, and under the 59th section of the Partition Law, found that from the nature and amount of the property sought to be divided, and the number of owners, no partition in kind was practicable, and therefore decreed a sale ? The only judgment in the case, and the one under which plaintiffs bought, was the final judgment at the March Term, 18704 The entry then of the appearance of the Malotts in March, 1869, and of their consent to a judgment of partition must be disregarded as totally inconsistent with every other part of the record. The title of MeGinniss, the defendant, from the Malotts and Ishs, and Carrolls, and Haydens was unaffected by the doctrine of lis pendens ; and if Mrs. Hayden was the owner of the share of Richard Rupe, as was offered to be proved, the deed of April 17th, 1869, conveyed at least 5-9 of the title. It seems strange that Andrew J. Rupe should have joined in this conveyance, if his name as party plaintiff in the partition suit was used with his consent. There must have been some mistake or fraud in the one proceeding or the other, but this question does not arise in the present action of ejectment. There appears to be some confusion in the partition record in regard to the interest of the Willoughbys. At one time they are represented as husband and wife; at another as minor children of a daughter of ¥m. Rupe. There is no appointment of a guardian ad litem ; and there is no appearance of the infants (if in fact they were minors) by their guardian or curator. The deed from the curator of their estate to the defendant MeGinniss, which was offered in evidence but excluded, was executed in November, 1869 ; and from this it may be inferred that where the entries are made concerning a husband and wife, such entries are erroneous. But as the infants could not appear by attorney, the judgment did not affect their interest; and the title of MeGinniss to their share would seem to be valid. Of course the judgment did not, for the — 374 — same reason, affect tbe interest of Richard Rupe’s children, who were not served with process. Rut although a judgment may be set aside for irregularities of this kind, in a direct proceeding, it does not follow that it is void collaterally. So far as the parties to it were concerned, it was valid; and the cases of Rush vs. Rush, (19 Mo., 441) and others of that kind cited in the brief, in regard to the entirety of a judgment, are not ajiplicable. So in regard to the judgment in Chapman vs. Rupe, and in Rupe & Chapman vs. Malott, &c., it may have been error for the court to have entered judgment at the first term, or the term at which the non-residents were notified to appear; but as the court had acquired jurisdiction of the parties, the judgment cannot be treated as a nullity. The judgment must be reversed and the case remanded. The other judges concur, Judge Sherwood absent.