Estes v. Nell

Burgess, J. This is an action for the partition of the following described land in Wright county, Missouri, to wit, the southeast quarter of the northeast quarter and the east half of the southeast quarter of section 8, and the west half of the southwest quarter of section 9, in township 29, of range 12, containing in all two hundred acres. The suit was begun in the circuit court of said county, but the venue was subsequently changed to the circuit court of Laclede county, where a trial was had resulting in a judgment in favor of plaintiffs, from which defendants Thomas H. Musick, Della Nell, now Faulkner, Catharine Ruckle, John Ruckle and Lewis E. Musick appeal. The parties all claim title under Manning Harris, deceased. The plaintiffs claim the undivided two thirds of said land as the children- and heirs of said Harris. The defendants 'Elmer Nell, Samuel Nell, Shelly Musick and D. L. Benson answered, disclaiming any interest. The defendants Della Faulkner, formerly Nell, Catharine Ruckle, formerly Nell, Thomas H. Musick and Lewis E. Musick answered separately, each claiming to be the legal and equitable owner of certain portions of the land described in' their respective answers and disclaiming all interest in the balance of the land. Manning Harris was the owner of all the land involved in this litigation. Some time in the year 1860 he traded it to one D. B. Lawrence for a part of a stock of goods, who in pursuance of the trade took possession of the land, but never received any deed or other evidence of title from Harris for it. Said Harris died in March, 1862, leaving as his only heirs the plaintiffs Agnes and Mary, and one Thomas H. Harris. In 1868, one Henry Nell by mesne conveyance acquired the title of said Lawrence-to all the land. In 1882, the said Thomas Harris and plaintiffs Agnes and Mary as — 646 — the heirs of said Manning Harris, brought suit in ejectment in the circuit court of Wright county against said Henry Nell for the recovery of the possession, of said land, and pending said suit the defendant therein Henry Nell died, and the suit was in 1883 revived against the following named persons as his heirs, viz. : Catharine Nell (nowRuckle) his widow; William Nell, Elmer Nell, Della Nell, and Samuel Nell his children, they being in possession and living upon the land. The defendants in that suit interposed as a defense thereto a general denial, and pleaded the statute of limitations, and according to the finding of the trial court set up an equitable title to all of said lands, growing out of the sale by said Manning Harris to said D. B. Lawrence. The suit was tried at the March term, 1884, of the circuit court of said Wright county, and judgment was rendered in favor of these plaintiffs for the recovery of an undivided two thirds of said lands, and soon thereafter a writ of restitution was issued in their favor on said judgment, which the court found was executed by the sheriff of said county and the possession of said undivided two thirds duly restored to plaintiffs. The issuance of the writ and its execution are, however, denied by defendants. Of the children and heirs of said Henry Nell, Franklin, Joseph, Albert, Annie and Cu. Edna Nell were not made parties to said ejectment suit in the revival thereof. Cu. Edna Nell died in infancy without issue; Henry Nell died testate and by his will devised to his daughter Della Nell the southeast quarter of the northeast quarter of section 8, township 28, range 12, of said lands. By his will he gave full power and authority to his executors to sell the residue of said lands, and the defendant Thomas H. Musick as his administrator with the will annexed, has long since sold in pursuance of said power all of the .remaining of said — 647 — lands, to wit, the east half of the southeast quarter of section 8, and the west half of the southwest quarter of section 9. Said administrator acting under the power given in said will divided the said west half of the southwest quarter of section 9 into twenty blocks known as Nell’s addition to the town of Mountain Grove. Upon these facts the court rendered the following judgment: • “Wherefore, all and singular, the premises being seen and understood the court doth order, adjudge, and decree, that the several rights and interests of the parties hereto in and to said lands are as follows, to wit: "First. That the plaintiffs Agnes and Mary Ck Estes and the defendant Thomas H. Musick, are seized and possessed as tenants in common of the following parts of said land, to wit, that is to say, the north half of southeast quarter of northeast quarter of said section 8 containing twTenty acres; and all of block 1 in said Nell’s addition. That the interests therein of said parties are as follows: The said plaintiffs are entitled to have set off to them the undivided two thirds of said above described twenty acres, and. one third of said block 1, and the said Thomas H. Musick is entitled’to have set off to him one third of said twenty acre tract and two thirds of said block 1, and none of 'the other defendants herein have any interest in said two tracts. “Second. That plaintiffs and defendant Della Faulkner and her husband Charles Faulkner, are the owners in common of the south half of southeast quarter of northeast quarter of said section 8 containing 22 acres more or less; and that their interests are as follows, viz., the said plaintiffs are jointly entitled to have two thirds of said tracts and the said Della and Charles Faulkner in right of the said Della one third — 648 — thereof, and that none of the other defendants- have any interest in the same. “ Third. That plaintiffs and defendant Catharine Ruckle own in common the following portions of said lands, to wit: The northeast quarter of southeast quarter of said section .eight and blocks four, five, twelve, thirteen, and twenty in said Nell’s addition. The plaintiffs jointly own one third of said several tracts last described, and the defendant Catharine Ruckle owns the undivided two thirds thereof, and none of the other defendants have any interests therein. "Fourth. That plaintiffs and the defendant Lewis E. Musick own in common the following parts of said lands, to wit: The southwest quarter of the southwest quarter of said section nine and blocks eight, ten, eleven, fourteen, fifteen, sixteen, seventeen, nineteen, and south half of block six, and all of block nine except a lot in northeast corner of said block 100 feet east and west by 150 feet north and south. That plaintiffs jointly own one third of said last described tracts and said Lewis E. Musick the undivided two thirds thereof, and that none of the other defendants have any interest in said described premises. “Fifth. That the plaintiffs and the defendant Lewis E. Musick own in common the following, to wit: The southeast quarter of the southeast quarter of said section eight, 40 acres; that the plaintiffs are jointly entitled to one third thereof and the defendant Lewis E. Musick to two thirds thereof, and that none of the other defendants have any interest in said last described lands. “It not appearing to the court that defendant M. V. McQuigg has been served with process or that he has entered any appearance herein, or that he has any interest in any of the lands in controversy, his name is hereby ordered stricken from the petition. It is fur649 tlier ordered that the interests of the plaintiffs in the several tracts and parcels hereinbefore described be set off to them jointly. It is further ordered, adjudged and decreed that partition of said lands be made accordingly as their several interests have hereinbefore been found and determined, and that the following persons be and a.re hereby appointed commissioners to make partition of said lands between and among said defendants, as their several interests have herein been determined, to wit, Prank Neukirk, Joseph H. Broyles, and Paul Ellis, and that the commissioners set off to the plaintiffs jointly their interests in said lands by their election and request made in open court, and that said commissioners make full reports of their acts and doings herein to this court at its next regular August term, 1895.” To which finding and judgment defendants then and there at the time excepted. Defendants’ first contention is that, as the testimony showed and as the'court found that the land was sold in 1860 by Manning Harris to D. B. Lawrence, and as the payment of the purchase price by Lawrence and possession by him of the land under his contract of purchase were also shown by the evidence, and as the defendants hold under him, they were entitled to a decree for specific performance of the contract, vesting the title to the land in them. ■ The logical effect of this position is to ignore and treat the judgment in the ejectment suit in favor of plaintiffs and against the defendants therein named for the possession of two thirds of the land as if it never had been rendered. Whatever the defenses may have been in that case, whether legal or equitable, and whether or not the judgment was irregular or erroneous, it was not subject to collateral attack, and is res adjudicata as to the parties thereto and the matters adjudicated upon until — 650 — set aside or reversed or its legal effect destroyed by the result of another action of ejectment for the same lands by the'parties or their heirs or some of them who were defendants in that suit. It is well established in this State that where one is in the possession of land claiming it adversely against all others, one out of possession can not maintain a suit against him for partition without first establishing his right in an action of ejectment, but after having done so he may maintain his action for partition against the person or persons in possession. Lambert v. Blumenthal, 26 Mo. 471; Snell v. Harrison, 131 Mo. 495; Rosier v. Griffith, 31 Mo. 171; Shaw v. Gregoire, 41 Mo. 407; Wommack v. Whitmore, 58 Mo. 448; Hutson v. Hutson, 139 Mo. 229. When the rights of the parties suing in partition have thus been established by judgment in ejectment, such judgment is conclusive as long as it remains in force and effect, between the parties thereto, and their privies; otherwise, resort to ejectment by the party claiming an interest in the land before bringing suit in partition would be of no avail. Therefore, the parties to that judgment nor their privies could go back of it, for the purpose of showing that they hold the title legal or equitable to the lands. Only those, however, who were parties to the ejectment suit and their privies are bound by it. It is again claimed that the judgment in ejectment against the infants, William, Samuel, Elmer and Della Nell, was irregular in various ways, and that although they were living upon the land at the time the. ejectment suit was pending, they were not exercising acts of possession over the land and that the judgment was not res adjudicata as to them. These matters were adjudicated upon in that suit, and even though the proceedings may have been • irregular, the judgment is not void and is binding on all parties thereto whether minors or adults. — 651 — It would therefore seem that the will of Henry Nell is of no consequence in this case, in so far as the rights of the plaintiffs are concerned. The suit in ejectment was begun against him in his lifetime, and if the lands or any part thereof belonged to plaintiffs he could not by will devise such right, and thereby divest them of their title or right to its possession. But it is said that the possession of Lawrence was adverse to Harris, and put the statute of limitations in motion against him, which continued to run against him and those claiming under him, notwithstanding the judgment in favor of plaintiffs in the ejectment suit, and that plaintiffs’ cause of action was at the time of the commencement of this suit barred by that statute; that there was no possession taken by plaintiffs under the ejectment suit, and that the judgment without more did not stop the running of the statute. It would perhaps be a sufficient answer to this contention to say that the evidence was conflicting as to whether or not plaintiffs were put in possession of the interest in the lands adjudged to them in the ejectment suit under a writ issued for that purpose, and that as the court found that they were put in possession we will defer to that finding. It was not necessary, however, in order to suspend the operation of the statute of limitations as against plaintiffs that a writ of restitution should have issued, or that they should have taken possession of the land under that judgment. The running of the statute was interrupted by the commencement of the ejectment suit, and did not run against plaintiffs during the life of the judgment rendered in that case, although no writ of restitution was issued upon the judgment, and no possession was taken thereunder. Snell et al. v. Harrison et al., 131 Mo. 495, and authorities cited. The plaintiffs and the children of Henry Nell were tenants — 652 — in common in the land at the time of the termination of the ejectment suit, and by the judgment in that case their rights to an undivided two thirds of the land was established, so that the statute of limitations did not begin to run against the plaintiffs until after the lifetime of the judgment and there was an ouster of them by their cotenants, as to which the evidence is very unsatisfactory. In any event there was no such ouster as to bar this action. The judgment in ejectment was rendered in March, 1884, and while the record in this case does not show when this action was brought, it does show that an amended petition was filed on the seventh day of August, 1894. The burden was upon defendants to show that plaintiffs’ action was barred by either the ten or thirty year statute of limitations at the time of the commencement of this suit, which they failed to do. Defendants’ abstract of the record shows that they offered in evidence a “tax deed from J. W. Whitaker, collector, to Henry Nell, dated October 4, 1869, recorded August 16, 1870,” for the lands in question which they insist puts the title in Nell, and that the title passed by regular chain of title down to defendants. This deed is not copied into the record, and as it is not before us we will not undertake to pass upon its effect, and must indulge the presumption that the court’s ruling upon its sufficiency to pass title was correct. The abstract does not show to whom the property was assessed, when assessed, nor when sold, without which it was not sufficient to pass title. - The question as to the misjoinder of causes of action was not property raised in the court below, and can not be considered on this appeal. Nor is it fatal to the judgment that no one of the defendants is interested in all of the lands so that the rights of the — 653 — respective parties are properly adjusted by the order and judgment of partition. It was agreed between the parties that Charles Faulkner was intermarried with the defendant Della Nell, after the commencement o'f this suit, and it is claimed by appellants that he should have been made a party defendant, and as that was not done the judgment is erroneous and must be reversed. This identical question was ruled upon by this court in Cochran v. Thomas, 131 Mo. 258, and it was held that the husbands of married women need not be made parties in suits for partition of land. Koehler v. Bernicker, 63 Mo. loc. cit. 370. Moreover, had Charles Faulkner, the husband, desired to have become a party, he might have done so by complying with the provisions of section 7137, Revised Statutes 1889, and having failed to do so, no other-party is in position to complain. It may be conceded that as Cu. Edna Nell was not made a party to the ejectment suit that she was not bound by the judgment in that case, and that when she died whatever interest she had in the land passed to her mother, brothers and sisters. It was agreed between the parties to this suit that the ejectment suit was commenced against Henry Nell, Cu. Edna's father, on the fifteenth day of June 1882; that he died in August, 1882, leaving a widow, Catharine, and children and heirs, Franklin, "William, Joseph, Samuel, Albert, Elmer, Cu. Edna, Della and Annie Glass; that in the fall of 1883 the suit was revived against Catharine Ruckle, formerly Nell, John Ruckle, William Nell, Della Nell and Samuel Nell, and “that Edna Nell is long since dead and died without issue.” In March, 1884, final judgment was rendered in the ejectment suit and as there was ho evidence as to the time when Cu. Edna died or that she was living at the time of the rendition of that judgment, the presump — 654 — tion must be indulged in favor of the correctness of the decree, and that her interest in the lands had descended to her mother, brothers and sisters before the. judgment was rendered. State ex rel. Stuart v. Maloney et al., 113 Mo. 367; Flynn v. Neosho, 114 Mo. 567. When Henry Nell died his interest in the land not devised to his daughter Della, descended to his heirs, and not to his administrator with the will annexed (Aubuchon v. Lory, 23 Mo. 99; Chambers' Adm'r v. Wright's Heirs, 40 Mo. 482), so that his widow and children were proper parties to the ejectment suit, which the law requires to be brought against the party in possession, and as the administrator, even if he had qualified as such at that time, which the evidence does not show, was not in possession of the land, it was not necessary that he should have been made a party to that suit. No person was named in the will of Nell as executor, and no power was conferred by its provisions upon his administrator with the will annexed to sell his interest in the lands for any specific purpose, but the power to sell was general, and just the same in principle as if there had been no power of sale, and the administrator had sold the land in pursuance of an order of a court having probate jurisdiction for the payment of debts against the estate. The administrator did not acquire title to the land by the will, but only the power of disposition for the benefit of the estate. Aubuchon v. Lory and Chambers' Adm’r v. Wright's Heirs, supra. Under such circumstances it can not be seriously contended that any sale of the lands by Musick as administrator of Nell for the payment of debts against Nell’s estate in any way affected plaintiffs’ rights in the two thirds interests which they recovered in the action of ejectment. Another contention is that the judgment does not cover the whole of the land; that there is no adjudica — 655 — tion of the rights of plaintiffs or defendants in blocks 2, 3, 7 and 18 in Nell’s addition to Mountain Grove nor are the rights or the interests of the defendants Elmer Nell, Samuel Nell, D. L. Benson and Shelly Musick determined. But how can appellants complain that the judgment does not cover the whole land? Jf it be true that the judgment 4°es not cover, ail the land, only plaintiffs are aggrieved by the judgment and not the appellants. And as for the defendants Elmer Nell, Samuel Nell, D. L. Benson and Shelly Musick, they did not appeal from the judgment, are not complaining, and no one else has the right to so do for them. A still further contention is that as to the one hundred and sixty acres of the land directed to be sold by the will of Eenry Nell, the defendants who purchased from the administrator held in privity with the testator, 'and not in privity with his heirs, and as the administrator was not made a party to the ejectment suit the result did not affect him nor the heirs of Nell who were not made parties to that suit and the judgment can not be res adjudícala as to them. As the administrator was not in the possession of the land he was not a necessary party to that suit, and the exercise of the power of disposal conferred upon him by the will, and the sale of the lands by him under such power passed all the interest of Henry Nell and his heirs in said land to the respective purchasers. Finding no reversible error in the record the judgment is affirmed. Gantt, P. J., and Shebwood, J. concur.