John M. Jones seeks in this action, instituted in 1944, to cancel a sheriff's deed in partition and to have the proceedings in the partition suit declared null and void. Final judgment was entered in the partition suit in January 1940. George W. Anspach was the plaintiff in that suit and the defendants were John M. Jones, certain of Jones' creditors and Charles W. Shelton, Jones' trustee in bankruptcy. The subject of the partition suit and of this action is a tract of land in Macon County owned by Bessie Anspach when she died, intestate, in 1939. Her only heirs were her brother, John M. Jones, and her husband, George W. Anspach. Anspach, in instituting the partition suit, alleged that he and Jones were tenants in common, each entitled to an undivided one-half interest in Bessie's land, and that the land was not susceptible to division in kind. George became the purchaser under the decree in partition and subsequently transferred the property to the other defendant-respondent. Grace Cook.
[496] The theory of Jones' present action and of this appeal is that the court did not have jurisdiction in the partition suit and consequently its judgment was a nullity. The basis of his theory that the court did not have jurisdiction is that Anspach, instead of having an undivided one-half interest in fee in Bessie's land, as he alleged in his petition, as a matter of fact had but a life estate (a successive rather than a coterminous estate) which, as against the remainderman, was an estate the court had no jurisdiction to partition. Duncan v. Duncan,324 Mo. 167, 172-173, 23 S.W.2d 91, 93. He contends that since Bessie died intestate, childless and without descendants (Mo. R.S.A., Sec. 324) her husband, George Anspach, was bound to file a declaration electing to take one-half of her estate absolutely (Mo. R.S.A. Sec. 329) and having failed to make the statutory election, and not pleading or showing in the partition suit that he had, he had an estate for life only in her property (Mo. R.S.A., Secs. 318, 319, 329) which the court was powerless to partition. Gray v. Clement, 286 Mo. 100, 227 S.W. 111; 296 Mo. 497, 246 S.W. 940; Rhodus v. Geatley, 347 Mo. 397, 405-406, 147 S.W.2d 631, 637.
In substantiation of his claim Jones showed that George had made final settlement in the administration of his wife's estate. He proved that there was not on file in the probate court, or recorded in the recorder's office (Mo. R.S.A., Sec. 329), a declaration of election by which George elected to take one-half of his wife's property absolutely in lieu of a life estate in the whole of her property. It may be assumed, for the purposes of this case, that he did not in fact make the statutory election and yet it does not follow, inexorably, that the proceedings in partition must be set aside as void.
[1] This is not an appeal from the judgment in partition as was true in Lee's Summit Building Loan Assn. v. Cross, 345 Mo. 501,134 S.W.2d 19 and McLain v. Mercantile Trust Co., 292 Mo. 114,237 S.W. 506. It should be carefully noted that it does not appear from the petition or decree, or upon any matter of record that an essential jurisdictional prerequisite is absent from the partition suit. Restatement, Judgments, pp. 566-567. It is in this respect that Gray v. Clement and Rhodus v. Geatley, supra, differ from the instant case. In those collateral proceedings to determine title "The petition in the partition suit under consideration, and the judgment itself, recites that Josephine Brokel has a life estate in the premises, and the defendants have the remainder. . . . The judgment shows on its face that therelief granted was such as the court could not render in thatclass of cases. Therefore, it is void and subject to collateral attack." 286 Mo. l.c. 109-110, 227 S.W. l.c. 113-114. (Italics supplied.) When it does not appear upon the record that any of the jurisdictional prerequisites are absent it is presumed that the court found all the facts necessary to its jurisdiction and that all the partition statutes were complied with and that every statutory requirement was present and found by the court. Sullinger v. West (Mo.), 211 S.W. 65, 67; First National Bank
Trust Co. v. Bowman, 322 Mo. 654, 671, 15 S.W.2d 842. Even though Jones did not respond to the partition suit, but defaulted, George was nevertheless required to exhibit proof of his title (Mo. R.S.A., Sec. 1723) and the court was bound to "ascertain from the evidence, in case of a default, . . . and . . . declare the rights, titles and interests of the parties to such proceedings, petitioners as well as defendants, and determine such rights, and give judgment that partition be made between such of them as shall have any right therein accordingly." Mo. R.S.A., Sec. 1724. Consequently, it is even presumed that Anspach's title to an undivided one-half interest was not dependent upon his having made an election in his wife's estate but that his interest was derived from some other source. Sullinger v. West, supra. If good cause is not shown for setting aside the commissioner's report the procedure is to approve it and render final judgment. "which judgment
shall be binding and conclusive upon all the parties to the proceedings, and all persons claiming under them." Mo. R.S.A., Sec. 1739.
[2] This is a subsequent, independent suit and direct attack is made that the judgment in partition is void by reason of extrinsic circumstances. Restatement, Judgments, p. 567. But it should also be carefully noted that Jones does not rely upon fraud in the procurement of the judgment in partition. Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121; Davidson v. I.M. Davidson Real Estate Investment Co., 226 Mo. 1, 125 S.W. 1143, 136 Am. St. Rep. 615. There is no allegation or claim of mistake (Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565) nor of collusion or[497] conspiracy. Spotts v. Spotts, 331 Mo. 942,55 S.W.2d 984. It is not claimed that Jones was deprived of a meritorious defense or that Anspach was guilty of any misconduct. Freeman, Judgments, Secs. 1189, 1213. Reliance is upon the sole fact, as we have indicated, that Anspach had not made the statutory election in his wife's estate and, therefore, he did not have an interest in the land which the court could partition.
Jones introduced in evidence the petition and the judgment in the partition suit.
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John M. Jones seeks in this action, instituted in 1944, to cancel a sheriff's deed in partition and to have the proceedings in the partition suit declared null and void. Final judgment was entered in the partition suit in January 1940. George W. Anspach was the plaintiff in that suit and the defendants were John M. Jones, certain of Jones' creditors and Charles W. Shelton, Jones' trustee in bankruptcy. The subject of the partition suit and of this action is a tract of land in Macon County owned by Bessie Anspach when she died, intestate, in 1939. Her only heirs were her brother, John M. Jones, and her husband, George W. Anspach. Anspach, in instituting the partition suit, alleged that he and Jones were tenants in common, each entitled to an undivided one-half interest in Bessie's land, and that the land was not susceptible to division in kind. George became the purchaser under the decree in partition and subsequently transferred the property to the other defendant-respondent. Grace Cook.
[496] The theory of Jones' present action and of this appeal is that the court did not have jurisdiction in the partition suit and consequently its judgment was a nullity. The basis of his theory that the court did not have jurisdiction is that Anspach, instead of having an undivided one-half interest in fee in Bessie's land, as he alleged in his petition, as a matter of fact had but a life estate (a successive rather than a coterminous estate) which, as against the remainderman, was an estate the court had no jurisdiction to partition. Duncan v. Duncan,324 Mo. 167, 172-173, 23 S.W.2d 91, 93. He contends that since Bessie died intestate, childless and without descendants (Mo. R.S.A., Sec. 324) her husband, George Anspach, was bound to file a declaration electing to take one-half of her estate absolutely (Mo. R.S.A. Sec. 329) and having failed to make the statutory election, and not pleading or showing in the partition suit that he had, he had an estate for life only in her property (Mo. R.S.A., Secs. 318, 319, 329) which the court was powerless to partition. Gray v. Clement, 286 Mo. 100, 227 S.W. 111; 296 Mo. 497, 246 S.W. 940; Rhodus v. Geatley, 347 Mo. 397, 405-406, 147 S.W.2d 631, 637.
In substantiation of his claim Jones showed that George had made final settlement in the administration of his wife's estate. He proved that there was not on file in the probate court, or recorded in the recorder's office (Mo. R.S.A., Sec. 329), a declaration of election by which George elected to take one-half of his wife's property absolutely in lieu of a life estate in the whole of her property. It may be assumed, for the purposes of this case, that he did not in fact make the statutory election and yet it does not follow, inexorably, that the proceedings in partition must be set aside as void.
[1] This is not an appeal from the judgment in partition as was true in Lee's Summit Building Loan Assn. v. Cross, 345 Mo. 501,134 S.W.2d 19 and McLain v. Mercantile Trust Co., 292 Mo. 114,237 S.W. 506. It should be carefully noted that it does not appear from the petition or decree, or upon any matter of record that an essential jurisdictional prerequisite is absent from the partition suit. Restatement, Judgments, pp. 566-567. It is in this respect that Gray v. Clement and Rhodus v. Geatley, supra, differ from the instant case. In those collateral proceedings to determine title "The petition in the partition suit under consideration, and the judgment itself, recites that Josephine Brokel has a life estate in the premises, and the defendants have the remainder. . . . The judgment shows on its face that therelief granted was such as the court could not render in thatclass of cases. Therefore, it is void and subject to collateral attack." 286 Mo. l.c. 109-110, 227 S.W. l.c. 113-114. (Italics supplied.) When it does not appear upon the record that any of the jurisdictional prerequisites are absent it is presumed that the court found all the facts necessary to its jurisdiction and that all the partition statutes were complied with and that every statutory requirement was present and found by the court. Sullinger v. West (Mo.), 211 S.W. 65, 67; First National Bank
Trust Co. v. Bowman, 322 Mo. 654, 671, 15 S.W.2d 842. Even though Jones did not respond to the partition suit, but defaulted, George was nevertheless required to exhibit proof of his title (Mo. R.S.A., Sec. 1723) and the court was bound to "ascertain from the evidence, in case of a default, . . . and . . . declare the rights, titles and interests of the parties to such proceedings, petitioners as well as defendants, and determine such rights, and give judgment that partition be made between such of them as shall have any right therein accordingly." Mo. R.S.A., Sec. 1724. Consequently, it is even presumed that Anspach's title to an undivided one-half interest was not dependent upon his having made an election in his wife's estate but that his interest was derived from some other source. Sullinger v. West, supra. If good cause is not shown for setting aside the commissioner's report the procedure is to approve it and render final judgment. "which judgment
shall be binding and conclusive upon all the parties to the proceedings, and all persons claiming under them." Mo. R.S.A., Sec. 1739.
[2] This is a subsequent, independent suit and direct attack is made that the judgment in partition is void by reason of extrinsic circumstances. Restatement, Judgments, p. 567. But it should also be carefully noted that Jones does not rely upon fraud in the procurement of the judgment in partition. Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121; Davidson v. I.M. Davidson Real Estate Investment Co., 226 Mo. 1, 125 S.W. 1143, 136 Am. St. Rep. 615. There is no allegation or claim of mistake (Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565) nor of collusion or[497] conspiracy. Spotts v. Spotts, 331 Mo. 942,55 S.W.2d 984. It is not claimed that Jones was deprived of a meritorious defense or that Anspach was guilty of any misconduct. Freeman, Judgments, Secs. 1189, 1213. Reliance is upon the sole fact, as we have indicated, that Anspach had not made the statutory election in his wife's estate and, therefore, he did not have an interest in the land which the court could partition.
Jones introduced in evidence the petition and the judgment in the partition suit. As we have said, the petition alleged that George and Jones were "tenants in common," each entitled to an undivided one-half interest in Bessie's described land and that the land could not be divided in kind. The relief asked was that the interests of the parties, the plaintiff George Anspach and the defendant John M. Jones, in the land be determined, the land sold and the proceeds of the sale divided accordingly. Unquestionably the petition stated a cause of action for partition under the statute. Mo. R.S.A., Secs. 1709, 1713; Burton v. Helton (Mo.), 257 S.W. 128, 129. In the absence of some attack on the petition it was not necessary that the plaintiff set forth the facts of his title, as that it depended on an election (Rhorer v. Brockhage, 15 Mo. App. 16, 23); it was sufficient, after judgment, for him to have alleged the title or interest claimed. Chapman v. Kullman, 191 Mo. 237, 248, 89 S.W. 924, 926.
[3] Not only did the petition state a cause of action but the sheriff's return in the partition suit recites personal service of the petition and summons upon Jones. He did not appear, however, or respond to the suit, but defaulted. Although, in his schedule in bankruptcy he did list as an asset an undivided one-half interest in this land. Shelton, his trustee in bankruptcy, entered his (the trustee's) appearance in the partition suit, filed an answer and was paid one-half the net proceeds of the partition sale and Jones claimed and was paid his statutory exemption of $300.00. If Jones had an interest in Bessie's property adverse to or greater than George's interest, or if George had less than an absolute interest or an interest that was not subject to being partitioned, he could have asserted the fact in answer
to the partition suit. Forder v. Davis, 38 Mo. 107; Lindell Real Estate Co. v. Lindell, 142 Mo. 61, 43 S.W. 368; Becker v. Stroeher, 167 Mo. 306, 321, 66 S.W. 1083; Edwards v. Harrison (Mo.), 236 S.W. 328.
[4] While the fact, singly or in combination, that the petition states a cause of action, that Jones could have defended the partition suit but failed to do so, that the jurisdictional prerequisites were presumptively found and present, is not conclusive in this direct proceeding (Restatement, Judgments, p. 566), nevertheless, relief may be refused in the absence of some compelling equitable reason. 3 Freeman. Judgments, Secs. 1188, 1227. "Subject to general equitable considerations, equitable relief will be given from a void judgment." Restatement. Judgments, Sec. 117. In this case, in view of all the circumstances, it is not made to appear that there is any injustice in the judgment in partition, as between Jones on the one hand and Mrs. Cook and Anspach on the other hand, even though it be assumed that the judgment is void and for that reason relief was properly denied in this case. McClanahan v. West,100 Mo. 309, 13 S.W. 674; Restatement, Judgments, pp. 565-570.
Accordingly, the judgment is affirmed. Westhues and Bohling,CC., concur.