Appeal from the Circuit Court of Christian County; the Hon.
DANIEL H. DAILEY, Judge, presiding. Affirmed.
This is an appeal from an order of the Circuit Court of Christian County, allowing a petition brought under Section 72 of the Civil Practice Act seeking relief from a decree entered in a partition proceeding.
On January 12, 1961, the plaintiff, George John Adelhart, filed suit to quiet title to and for partition of certain real estate. The portion of the complaint pertinent on this appeal is that with respect to the ownership of the property involved and reads as follows:
"That as a consequence of the foregoing, Plaintiff George John Adelhart, and Defendants Robert Adelhart, Peter Adelhart, Maggie Adelhart Temmons, Lizzie Adelhart Finnegan and Helen Adelhart Pieper, are the owners as tenants in common in the proportion set opposite their respective names, subject only to the rights of a farm tenant, the Defendant, Marion Waddington, of the tracts of real estate described herein.
George John Adelhart, 1/7 Robert Adelhart, 1/7 Peter Adelhart, 1/7 Maggie Adelhart Temmons, 4/21 Lizzie Adelhart Finnegan, 4/21 Helen Adelhart Pieper, 4/21" (emphasis ours)
The tenant, Marion Waddington, who will be referred to herein as the defendant, was served with summons and a copy of the complaint on January 13, 1961. The complaint contained no reference to defendant's tenancy other than that above quoted. On March 3, 1961, he was defaulted for failure to plead to the complaint. On the same date the Court heard evidence and entered a decree for partition. By said decree the Court found and decreed ownership of the premises to be as alleged in the complaint "subject only to the rights of the farm tenant, Marion Waddington." The decree also contained the following finding.
That the Defendant, Marion Waddington, is a tenant from year to year of said premises, under a crop sharing agreement, and that his tenancy will expire on February 28, 1962.
The evidence introduced at the hearing on March 3, 1961, consists solely of the testimony of Geo. J. LaCharite, one of the attorneys for the plaintiff and insofar as it pertained to the tenancy of Marion Waddington it is as follows:
A. The land is presently farmed by Marion Waddington. He was served as a party to this suit and was served with summons and a copy of of the complaint.
Q. Now under what sort of tenancy does he occupy the premises?
A. He occupies the tenancy from, on a year to year basis, and his tenancy will presently expire February 28, 1962.
On March 17, 1961, the Court entered a decree directing that the premises be sold by the Master in Chancery at public auction on April 8, 1961, "subject to the rights of Marion Waddington, as tenant from year to year of said premises under a crop sharing agreement which will expire on February 28, 1962."
On April 4, 1961, the defendant filed a petition to vacate both the partition and sale decrees alleging that the partition decree was erroneous and fraudulently disclosed that defendant was a tenant on the land described therein as a tenant from year to year when in truth and in fact he was a tenant for a five year term under a written lease which he entered into with William Temmen, the agent and attorney in fact for the plaintiff and the other owners of the premises; that said lease, a copy of which is attached to the petition, was signed January 1, 1960, and has not been cancelled or terminated; that at and prior to the time of the entry of the partition decree the plaintiff knew of the existence of defendant's 5 year lease; that the power of attorney under which the agent of the owners acted, a copy of which was also attached to the petition, has not been cancelled; that said power of attorney authorized Temmen to lease said premises and to do all acts necessary in carrying out any lease he made; that the existence of the said power of attorney was known to some of plaintiff's counsel prior to the entry of the said decrees; that approximately two weeks prior to April 4, 1961, one of the attorneys for the plaintiff inquired of the defendant as to the terms of his lease and was informed ...