
    Holladay, Appellant, v. Langford.
    1. Partition : judgment : estoppel, A judgment in partition estab lislies the tille to the land which is the subject of the partition suitaiid in an action of ejectment upon an adverse possession or an adverse title, existing at the date, of the partition, it is final and con elusive upon all patties to the record.
    3.--:-: -. A party to a partition suit cannot recover the partition premises upon a title acquired by him during the pendency of the partition proceeding and prior to the final decree therein.
    
      Appeal from St. Louis Court of Appeals.
    
    Affirmed.
    
      Qeorge A. Castleman for appellant.
    (1) The deed of Castello, sheriff, to James M. Hughes and others, parties to this Cause, prior to suit in partition, could not establish an “outstanding title,” and fur-' nislied no defence in the cause; besides that deed was subsequent to deed of trust made by Sigerson. (2) If there was any duty to set up, in the partition cause, the title acquired by Holladay, subsequent to the decree in that cause, then it was more the duty of Tracy, as he was plaintiff in the cause, and he cannot invoke his own mission as an estoppel against other parties. (3) While It may be .admitted that all parties to the record in the partition cause are concluded by the adjudication of the title upon that date, they are not concluded upon a title subsequently acquired and in no way in conflict with it. (4) As a party in interest and to the cause, Tracy musj; have known the state of' this title; and, even if he were not a party to the suit, Holladay had, by recording the ■deed to himself, notified Tracy of his exclusive title to lot number forty. The statutes make the filing and recording notice to the world, and Tracy will not be heard to say that he was ignorant of the title. R. S., sec. 679. Por “to enable a man to set up title by estoppel, the party must have been ignorant of the true state of the title at the time he took it, or been without means of ascertaining it by reference to records.” Herman’s Law of Estoppel, sec. 422; Wood v. Griffin, 46 N. II. 237; Gore v: White, 20 Wis. 430; Hill v. Epley, 31 Pa. 334. “ When a title has been once duly recorded no responsibility will arise from a failure to take further steps to warn, subsequent purchasers who may fairly be presumed to have taken the means pointed out by law and acquired all the knowledge which it is important for them to have.” Herman’s Law of Estoppel, sec. 427; Fisher v. Waserman, 11 Ohio, 542; Knauffiv. Thompson, 16 Pa. 357; Hillv. Epley, 31 Pa. 331. (5) The sheriff conveyed in his deed “all the right, title and interest” of the parties to Tracy; but the sheriff was acting under the judgment of partition, and was executing it. This decree w.as his power and indicated what he was to sell, i. e., thq estate held in trust by William M. Hughes for himself and other parties. He could not sell more than he was empowered to sell. (6) At the date of the decree, the •original deed of trust made by Sigerson was only a lien upon the property. The parties to it need not have been and were not parties to the cause, Hull v. Lyon, 27 Mo. 570. (7) Title acquired under the deed of trust subsequent to the decree in partition is good even in favor of a party to that cause. Watson v. Priest, 9 Mo. App. 264.
    
      LJ, T. Parish' for respondent.
    (1) There is no error in the record. (2) The motion for a new trial raises no objections which can be considered by this court. The only ground specified in the motion is that the court erred in construing the lawby it the error complained of is not indicated; the objection is too vague and indefinite. It would seem that the appellant objected to some ruling of the court in regard to the sufficiency of the advertisement of notice of foreclosure of deed of trust, but the record shows that the •objection of the defendant was overruled and the deed admitted in evidence. So that this court is left at last to conjecture as to what was the ground of the decision of the court below. (3) But if - the proceedings of the court below were subject to attack, and this court will look into the record to find support for the judgment, it is ag ■easy matter to sustain the action of the court in givinn judgment for the defendant. • The plaintiff was a party to the partition proceeding, in which there was a final decree and order of distribution in April, 1873. The plaintiff took his portion ot' the proceeds of said sale, including a portion of the money paid for this very property by his co-tenant, John H. Tracy, the lessor of the \defendant in this case, and by such act is estopped to ¡assert outstanding or adverse title. W. S., sec. 39, p. = 971; Herman on Estoppel, 419 ; Freeman on Judgments, sec. 304; Sanderson vr Balance, 2 Jones .Eq. 323; 
      Ryder v. Rubber Go., 4Bosw. 163; McQormiclcv. McMur-' trie, 4 Wall. 192; Oarrv. Wallace, 7 Wall. 394; Garner' v. Bird, 57 Barb. 277; 14 Serg’t & R. 27 ; Moody v. Van. Dylce, 4 Bum. 31; Bell v. Haines, 10 Serg’t & R. 43.. (4) Tbe partition suit was pending in court some four-years after Holladay’s claim of title accrued under the-foreclosure of the Sigerson deed of trust. Tbe judgment-in partition settled and established tbe title to tbe land and excluded the assertion by any party to tbe record of any title acquired prior to tbe final-judgment in partition. Jones v. Shanton, 11 Mo. 433; Forder v. Davis, 33 Mo. 107 ; Pentz v. Kuester, 41 Mo. 447; Parlcinson v. Qaplinger, 65 Mo. 292; Durham ?>. Durham, 34 Mo... 447; McMur try v. Glasscoclc, 20 Mo. 432.
   No'rton, J.

This is a suit in ejectment, begun in tbe circuit court of St. Louis county in 1877 to recover a parcel of land in tbe subdivision of tbe common of Car-, rondelet, south of tbe river Des Peres, of 39-98 arpensr, known as lot forty of said subdivision. On tbe trial de-. fenda'nt bad judgment which, on plaintiff’s appeal, was-, affirmedby the St. Louis court of appeals, and from which, plaintiff appeals to this conrt. On tbe trial it was agreed that defendant was in tbe possession of tbe land sued for. as the lessee of J ohn H. Tracy; that on tbe twenty-eighth, of March, 1857, John Sigerson was seized in fee-simple of the land in controversy. '

Tbe plaintiff put in evidence a deed of trust executed by- Sigerson tbe twenty-eighth of March, 1857, conveying among other property, tbe lot in controversy to secure the-payment of a noté for five thousand dollars. Default having been made in the payment of said note, the trustee, Wil-: liams. on the thirtieth of November, 1869, sold the said lot to the plaintiff, Jesse Holladay, and executed and. delivered to him a deed for the same which was duly remorded on the sixth of December,-. 1869;'• ... •;

The ’defendant, in support of her title, put in evi•deuce the record and proceedings in a partition suit ip the circuit court of St. Louis county, in which Emma Sanderson and other new plaintiffs and the plaintiff in this suit, Jesse Holladay, and others were defendants, from which it appeared that in the petition for partitiop It was alleged that. James M. Hughes held the title to the property therein described, among which was included the property sought to be recovered in this suit, to the -following uses and trusts, viz. : To his own use fourr fifteenths, to use of George B. Sanderson four-fifteenths, to use of Thomas Marshall four-fifteenths, to use of Jesse Holladay three-fifteenths; and that Holladay, in the answer filed by him, admitted that the legal title was in Hughes as avered in the petition, and alleging that he was the owner of an undivided one-fifth of said lands. It also appeared from the record in said cause that on the second of - May, 1863, the court found that Hughes was seized in fee of the property described in the petition, to the uses and trusts stated in the petition, and decreed partition accordingly and appointed commissioners to make the partition according to the rights of the parties as adjudged.

It further appears that the commissioners made re-; port, which was set aside, and on the twenty-fourth of December, 1872, a renewed order was made for the sale of the land, in pursuance of which it was sold by the sheriff, at which sale a large proportion of the property was purchased by Holladay and a large portion purchased by John H. Tracy, including lots sixty-one and sixty-two ; that the sheriff made report of sale, which was oni the twentieth day of February, 1873, approved by consent -of parties, and the sheriff was directed to make deeds, and after paying costs to pay over the balance of the proceeds to the parties entitled. It further appears that ¡on the seventh-of -April, T873, a final decree and order of -distribution was made, by which there wa.s decreed to bet paid Holladay the sum of $3,508.79 fo.r h.is share of three* fifteenths of the proceeds of the land sold. Defendant also put in evidence the deed of the sheriff conveying tq Tracy the said land purchased by him, and, also, a lease-from said Tracy to defendant. The cause was submitted bn the above state of facts without any' instructions-having been asked or given, and judgment was rendered for defendant, from which plaintiff appealed to the St-Louis court, where the judgment was affirmed, and from which"the plaintiff has appealed to this court.

Under the facts in evidence we cannot see how any other judgment could have been rendered than the one which was rendered. Thé title acquired by Holladay in? 1869, and upon which reliance is placed for recovery of the land in question, was acquired while the proceedings in the partition suit were in progress, and more than three years prior to the order of sale made in 1872, of nearly four years prior to final order of distribution, made in April, 1873, under which he was entitled to receive three-fifteenths of the price paid by Tracy for the land in controversy. The participation of Holladay in the partition proceedings ; his assertion in his answer that the title in fee to the land in suit, was in Hughes in trust for himself and others ; his receipt of his proportion of the proceeds of the sale, according to the doctrine announced by Herman on Estoppel, 419, and Freeman on Judgments, section '304, estops him from setting up the title acquired by him in 1869, it having been acquired more than three-years prior to the order of sale.

Besides this, under section 3376, Revised Statutes, the deed made by the sheriff to Tracy is a bar against all persons interested in the partition proceedings, who were made parties to it, and aga-inst all other persons claiming, undér them, or either of them. In the case of Forder v. Davis 38 Mo. 108, it was held that a judgment in partition establishes the title to the land which is the subject of partition, and' in an action of ejectment upon an adverse possession or an adverse title existing at the data bf the partition it is final and conclusive upon all parties to the record, and in the cases of Durham v. Darby, Adm'r, etc., 34 Mo. 447, and Parkinson v. Caplinger, 65 Mo. 292, it is held that" a judgment that partition be made is only interlocutory, and that the final judgment is the order of the court confirming the report of the commissioners or directing a sale of the property. Inasmuch, therefore, as the adverse title relied upon by Holladay was acquired by him in 1869, during the pendency di the partition proceedings and prior to the final decree br order of sale made in 1872, and was not set up by him before said final judgment under the ruling of this court in the case of Forder v. Davis, supra, he cannot now be beard to set it up as against the purchaser at the partitidn sale. Judgment affirmed,

in which all concur.  