Nave v. Todd , 83 Mo. 601 ( 1884 )

Black, J.

1. This was an action of ejectment. ' Todd was the tenant of McDonald. McDonald pleaded an .•equitable defence. Plaintiff recovered judgment for the undivided one-half of 80 acres of land in DeKalb county, from which defendants appealed.

The plaintiff’s title consisted of a mortgage made by PI. Clay Kerr, and a sheriff’s deed dated March 7th, 1865, made upon a sale under the foreclosure of the mortgage. The suit to foreclose the mortgage was instituted by Nave against Kerr in the circuit court of ■.that county. The defendant was notified by publication •returnable to the March term, 1863. Default and a final judgment were entered at the September term, 1863. At the March term, 1864, on motion of plaintiff, and apparently without any notice to Kerr, the defendant, this judgment was set aside, so far as it was final, and .•allowed to stand as an interlocutory judgment by default, which was then made final. The foreclosure was had mnder the practice act of 1855, by which the final judgment should have been entered at the term next after the default was taken. R. S. 1855, p. 1280, sec. 10; Hopkins v. McGee, 33 Mo. 312. To thus enter the final judgment, at the same term, was an irregularity which . appeared upon the face of the record. Such irregularities may be corrected by the court at a term subsequent to that at which the judgment is rendered. Stacker v. Cooper Circuit Court, 25 Mo. 401; Harbor v. Pacific R. R. Co., 32 Mo. 423; Downing v. Still, 43 Mo. 309.

The first final judgment was not void, and a motion •was the proper method of reaching the irregularity. Branstetter v. Rives, 34 Mo. 318; Lawther v. Agee, 34 Mo. 372; Sims v. Gray, 66 Mo. 616. The court had the power and was in duty bound to make the correction and we see no reason why notice should have been given to ■ defendant. The effect of the record is the same and the defendant was not prejudiced. Emery v. Whitwell, 6 Mich. 492. Certain it is, the judgment as corrected and finally entered up is not void and that disposes of the question between these parties and in this collateral proceeding.

2. Kerr and John W. BrecMnridge owned jointly two farms, one known as the Canfield farm and the other as the Breckinridge farm, and, it is said, were partners in farming. They dissolved their partnership and divided the property real and personal. Kerr took the Canfield farm upon which he then lived and Breckinridge took the other farm, upon which he resided. This division was made in 1859, and thereafter each occupied his respective portions, but no deeds were made until long after the rights of the parties to this suit attached. On the 25th of February, 1861, Kerr made to this plaintiff, Nave, the mortgage before mentioned on the undivided half of some 600 acres of land, including the parcel in question, which was a part of the Breckinridge farm. This mortgage was made at the instance of Breckinridge and to secure a debt due from him to Nave, for which Kerr then gave his note. Plaintiff claims under the foreclosure of this mortgage. On the 19th of February, 1861, a number of creditors of Breckinridge, of whom defendant, McDonald, was one, brought suit against Breckinridge and attached his interest in both farms. These suits were prosecuted to final judgment, the property attached was sold and bought in by Saunders in trust for the creditors. In a proceeding against the rights of the creditors to the property thus held by Saunders, the property was again sold and defendant, McDonald, through that sale, purchased the land here in question, and now defends as to the whole interest therein,. on the ground that there was a parol partition between Kerr and Breckinridge, by which the latter became entitled to this land.

A parol partition followed up by possession in severalty, doubtless, gives to the parties respectively the equitable title to the land thus acquired. But we do not see bow tbat can avail tlie defendants bere. Tbe division was made witb a view of perfecting it by deeds. Tbe attaching creditors disregarded tbe alleged parol partition and attached Breckinridge’s interest in both farms, sold and became tbe purchasers-of tbat interest and thereby denied tbe binding force of such a partition. They cannot affirm the validity of tbe partition in part and deny it as to another part of tbe lands. Besides all which it appears tbat while Saunders held tbe title in trust for tbe creditors, be called upon Nave to pay taxes upon bis half of tbe land, and Nave did pay them pursuant to such request. Saunders who was tbe trustee and competent to speak for tbe creditors, seems to have recognized tbe plaintiff; as part owner, during tbe time be thus held tbe property.

There is no equity in tbe defence and tbe judgment is affirmed.

All concur.