Wise v. Lisa , 34 Mo. 505 ( 1864 )

Dryden, Judge,

delivered the opinion of the court.

It appears from the petition in this case, that in the year 1850 this respondent instituted proceedings in the St. Louis Circuit Court against the appellant’s intestate, Ware and others, for the partition of certain real estate in the city of St. Louis, which resulted in a judgment of partition and sale of the land, and payment of one-third of the proceeds to the respondent, corresponding to the share she claimed in the land. It seems that Ware claimed that the interest in the land which was adjudged to the respondent in the partition suit, was his and not hers. The object of the present suit was to recover the share of the proceeds of the sale which had been adjudged and paid to the respondent. The petition was demurred to and the demurrer sustained, and judgment for the respondent.

If, as the appellant has argued in this court, the judgment in partition was a nullity (and the allegations of his petition certainly would not warrant us in saying it was valid), then the proceedings in partition did not affect the title of Ware, and presented no obstacle to a recovery of the land involved, in case his possession was interfered with. This being true, it furnishes an answer to this action ; for if Ware was not injured by the proceedings in partition (and he was not unless his title was thereby divested),he has no grievance to be redressed, and no reason exists why he or his administrators should take to himself the fruits of a harmless and confessedly void sale.

With the concurrence of the other judges,

the judgment will be affirmed.