Wheat v. Burgess

The opinion of the court was delivered by Horton, C. J.: After the petition had been filed in this case in the court below, the plaintiff in error demurred thereto for several reasons, among others: That there was a defect of parties defendant, and that . Julia A. Burgess, Cornelius M. Burgess, John J. Burgess, Floyd S. Burgess, Luella V. Burgess and John Mower, mentioned in the original action of partition, should be made defendants. The demurrer was overruled, and exceptions taken.

Afterward, the said L. B. Wheat filed a written motion to make the same persons defendants, and have them duly summoned to reply to the,counter-claim of said defendant. This motion was overruled separately as to each of these persons. Exceptions were taken. Thereafter, in the amended answer of said Wheat, it was alleged that said persons were necessary parties to a complete determination and settlement of the questions involved in the action. This allegation seems to have been disregarded by the court below in its findings of fact and law, and also in the judgment rendered. This action of the court was error, and, in view of the judgment rendered, fatal error, demanding a reversal of the same. The action of Mrs. Burgess was instituted to modify a judgment in a partition action in which all the said persons were interested parties, on the ground that it was void from want of jurisdiction in the court of her person.' If Mrs. Burgess and her husband had a homestead interest in the undivided half of the north half of the land partitioned, then she was .a necessary party in that action, and any judgment adverse to her rights in the absence of jurisdiction of her person was void. Upon proper proceedings she could have the same annulled; but she cannot set aside so much of that judgment as she does not like, and retain the benefit of that portion which is satisfactory to her. If she asks to have the lien of the Shannon judgment released and withdrawn from her homestead interests, she at the same time must consent to have the persons interested therein placed in the position they occupied prior to the rendition of the void judgment. It would not be fair to remove from her all the burdens of the judgment because it was void, and permit her to possess all its benefits because she wished to enjoy them. In the partition suit, the Shannon judgment was made a lien on all of the west 160 acres set off to Geo. W. Burgess, and was thus withdrawn from the east 160 acres. This was satisfactory to Shannon, as it increased his security from a lien on a small number of acres to a lien on 160 acres, and under such a decree, it was really immaterial to Shannon whether the division was equitable or not, as he was amply secured. In the present action all of this was changed, with no opportunity to the judgment-creditor to show that the original allotments were unequal, and that of the west 160 was not an equivalent to the interest- levied on in the whole half-section, as no change could be made in said partition as the parties to that suit were not parties to this action. The findings, however, convey the impression that the original allotments were unequal in value, as the other tenants in common with Burgess paid him $300, and also satisfied certain taxes to have him accept the west quarter as his share.

A lien-holder, who is a party in an action of partition, has an interest in a fair and just division of the property, and the right to object to an unequal allotment to his prejudice, and especially is this the case, when the interest of such lien-holder is removed by “the court from the undivided moiety of the whole and attached to an interest in the property assigned to the tenant in common against whose moiety the lien is a charge.

We suppose it will be conceded that, before the court could have set aside the entire judgment in the partition action, all the original parties thereto except the Shannons, whose place Mr. Wheat has taken, should have been parties to the new action. So we think, if there was to be a readjustment of the lien of a .judgment-creditor on the ground that the original judgment was void, this demanded the opening of the case to place the lien of the judgment-creditor in the same condition it was, prior to the rendition of such void judgment. If the judgment was void, it would be paradoxical to call the judgment good for some purposes, and invalid for others, and if there was to be a re-trial of the lien of the Shannon judgment, the other persons named should have been parties. In this way a full and final determination of all the matters involved could have been settled. All of this was denied the plaintiff in error.

Under these views, the judgment of the district court must be reversed, and the court below directed to sustain the demurrer of plaintiffs in error and allow the plaintiff in that court, on proper application being made, to amend her petition by making the persons therein named parties defendant in the action, upon payment by her of all costs made in the district court from the date of the ruling of said court upon the demurrer. All the Justices concurring.