Fulbright v. Cannefox

30 Mo. 425

Opinion

Napton, Judge,

delivered the opinion of tlie court.

All the facts which we think necessary to enable tlie court to make a satisfactory and equitable adjustment of this controversy are not before tlie court. Tlie main defence, originally set up in tlie case, undoubtedly proceeded upon grounds which would not now be considered available and which were so determined on the trial. But the case ultimately took another turn, and the principal point finally relied on as a defence to this suit was the infancy of Sarah J. Humphries, one of the parties plaintiff in the partition proceeding, and her appearance by attorney. It was also insisted that one of the defendants in this suit, Sarah Cannefox, was not properly served, and that the default against her should have been set aside for this reason.

In relation to this last point, we think it sufficient to observe that, whether served with notice or not, Sarah Canne-fox appeared with the other parties defendant and participated in all the proceedings subsequent to the default. It would be folly to send the case back for this cause alone, as it would only tend to create expense to no purpose. Admitting that the default should have been set aside, yet, as there were repeated continuances, and all the defences which could have been offered previous to the default were heard in fact and tried upon subsequent motions, in which Sarah Cannefox, the party not sued, as well as the other defendants, united, there is evidently no merit in the defence of want of notice.

The main fact relied on to set aside the judgment in this case is that Sarah J. Humphries, one of the minor plaintiffs in the suit for partition, appeared by attorney. There is no question that this makes the judgment in partition voidable, but it does not appear that the party thus appearing by attorney desires to avoid the judgment. In truth, the present action, which is brought by Fulbright for the benefit of all the partitioners upon a note given for the sale of the land or a portion of it, would seem to indicate an acquiescence on tbe part of Sarah J. Humphries in the judgment. A court would not permit her to set aside the judgment and at the same time retain the purchase money of the land. Such judgments are not nullities, but. may be set aside on terms.

(See the case of Gott v. Powell, 30 Mo.-.)

Footnotes

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But the judgment in partition was, so far as S. J. Canne-fox was concerned, undoubtedly liable to be reversed or annulled, and as the court ought to see, in these partition proceedings, that all the title of the parties to the partition suit is conveyed by the judgment, we can see no impropriety in having this matter settled in the suit upon the note, when the point is brought to the attention of the court. It may be that Mrs. Humphries, who is now of age, is willing to make ■ a deed, and thus end all doubt or difficulty on the question. It may be that in some other mode her acquiescence in the judgment could be procured; and if, as has been suggested, the purchasers are anxious to complete their bargain, provided they can be assured of a good title, the whole matter may be readily settled in the present suit without forcing the purchasers to rely upon a mere implication that the participation of Mrs. Humphries in the present suit is to be regarded as a ratification of the judgment in the partition proceedings. We shall therefore remand the case in order that these questions may be satisfactorily settled before compelling the purchasers to pay the amount of their bonds. Judgment reversed and remanded.

The other judges concur.

This case is still pending upon a motion for a rehearing.