Fulbright v. Cannefox

1. Infants can not appear by attorney as parties plaintiff in actions for partition ; they must sue by guardian. 2. Judgments rendered in proceedings "where infants appear by attorney are not nullities as to them; they are voidable, and may be set aside on terms. 3. It is the duty of the court, in proceedings for partition, to see that all the title of the parties to the suit is conveyed by the judgment. Hence, "where in proceedings for partition one of the plaintiffs, an infant, appeared by attorney, and the sheriff afterwards instituted suit on a note given to him by a purchaser at the partition sale, who defended on the ground that the judgment in partition was invalid as to such minor, who had since become of age; held, that, before compelling the purchaser to pay the note given for the land purchased at the partition, it would be proper that the question as to the acquiescence of such minor in the partition judgment and sale should be satisfactorily settled.

Appeal from Greene Circuit Cowrt. In the year 1855 proceedings for the partition of the real estate of Joseph Cannefox, deceased, were instituted by his widow and heirs. All the parties to the suit were made parties plaintiff, among others Sarah J. Humphries, a minor daughter of said Cannefox, whose husband had previously died. She appeared by attorney, no guardian being appointed. The court ordered a sale of the property, and upon the sale William J. Cannefox became the purchaser of a portion of the land, and gave his note to the sheriff for $2,080, with Sarah Cannefox and others as securities. This note the sheriff instituted suit upon to the use of the heirs of said Joseph Cannefox. The sheriff’s return states that he executed the writ of summons on Sarah Cannefox by “ leaving a true copy of the within writ with a white member of the family over the age of fifteen years but does not state that the copy was left at the usual place of abode of said Sarah Cannefox. At the return term, March term, 1858, judgment by default was rendered against the defendants. At the same term the defendants, moved the court to set aside said judgment on the ground that the defendants thought and believed, when said default was rendered, that William Cannefox, the principal in the note, and the purchaser at the sheriff’s sale, would get a good title upon the payment of the note; that since said judgment by default they had ascertained that said partition proceedings were irregular, and that no valid title would pass to said W. Cannefox. The court overruled the motion. At the March term, 1859, said William J. Cannefox moved the court again to be permitted to answer. He set forth that he made no defence and let judgment go by default because he then thought he had no defence, but that he had since learned that the petition for partition was not regular, and that the proceedings were void, inasmuch as there was no party defendant and there were minor plaintiffs. This motion also the court overruled. At the same term a motion in arrest of judgment was made. on the ground that the sheriff, the plaintiff, was not the real party in interest. This motion was overruled. At the same term, the defendant Sarah Cannefox moved the court to set aside the judgment because she received no legal notice of the commencement of the suit. This motion was overruled. Afterwards, and at the same term, the defendants presented their petition to the court praying a stay of execution. In this petition the parties set forth, among other things, that in the said partition proceedings there were three minor plaintiffs, one of whom, Sarah J. Humphries, appeared in person without guardian. This petition, on motion, the court overruled at the August term, 1859. I. The court had no jurisdiction of the person of Sarah Cannefox, she not being served. The court erred in overruling her motion. The judgment is void as to her. The petition in partition was signed by a minor and therefore the proceedings are void. Infants can only appear by guardian or next friend. (Thornton v. Thornton, 27 Mo. 302.) A sale in partition is a sale by the parties themselves. A warranty of title is implied. (Picot v. Page, 26 Mo. 420.) The proceedings in partition being so irregular as to make them void, the purchaser should not be held to pay the money without getting a title. The sheriff had no right to bring suit in his own name. I. No meritorious defence was set up in the motion to set aside the default. In suits for partition, infants may appear as parties plaintiff by guardian. (27 Mo. 305.) The petition to stay execution was properly overruled. It does not appear that they were not apprised of all the facts relating to the partition and sale at the time of the purchase. It does not appear that they exercised due diligence.