*649,, *648— At the January term, 1897, of the Cape Girardeau Court of common pleas the appellant filed therein the following motion:

“James G. Reynold, Plaintiff, against *

“Benjamin R. Hempstead and r Bettie D. Hempstead, Defendants. '

“Now comes plaintiff and moves the court for an order on Judson M. Randol, late sheriff of the county of Cape Girardeau, to pay to Robert L. Taylor the net proceeds in his hands belonging to Bettie D. Hempstead arising from the sale of her interest of the real estate sold at this term of this court by said late sheriff in the above styled cause and for reason states: That this; *649plaintiff and defendant Bettie D. Hemp-

stead were tenants in common in the real estate sold herein, that plaintiff owned one undivided three fourths interest in said real estate, and defendant Bettie D. Hempstead, owned one undivided one fourth interest in said real estate. That said sale, plaintiff and defendants were the competitive bidders, and this plaintiff was the purchaser at the price and sum of three thousand and -dollars, which sum he paid to Judson M. Randol, late sheriff, who made said sale. That said sum was the full value of said property. That since said sale said plaintiff has learned that defendants, long before said partition proceedings, had executed to one Robert L. Taylor their note for three thousand dollars, and, to secure said note, executed to him a deed of trust on a large amount of real estate, among others the interest of said Betttie D. Hempstead in the real estate partitioned herein. That the real estate embraced in said deed of trust is of great value. That, although said deed of trust was duly recorded long before the partition proceedings herein, its existence was not known to this plaintiff, and said defendants being persons of supposed large means, this plaintiff never suspected that any part of their property was encumbered, nor did said Bettie D. Hempstead, nor her husband, Benjamin R. Hempstead, suggest or impart any information to him of the existence of said deed of trust, as his cotenant, said Bettie D. Hempstead, in law and good conscience was bound to do. That said Taylor is now threatening to sell the interest of said Bettie D. Hemp-stead in the real estate so partitioned, under his deed of trust, and unless the order herein prayed for is granted he would be compelled to pay again for the interest of his cotenant.”

On the hearing the judgment of partition and *650order of sale in the suit of Reynolds and Hempstead and Hempstead, was read in evidence; also the report of the sheriff showing sale of lands described in partition proceedings to Reynolds for $3,000, and the payment by him of the purchase price, and the following stipulation of facts was made: “That all of the statements and allegations made in the motion herein of James G. Reynolds, praying the court to direct the sheriff to pay the proceeds arising from the sale of the interest of the defendant, Bettie D. Hempstead to Robert L. Taylor, the beneficiary in the deed of trust, are true. It was also stipulated and agreed by and between plaintiff and defendants herein, that said deed of trust is still unpaid; also that said deed of trust was on record in the land records of Cape Girardeau county, Missouri, at the date of the institution of the partition suit herein.” The motion was taken under advisement to the May term, 1897, of the court, when it was overruled, and the sheriff was ordered to pay over to Bettie D. Hempstead her distributive share of the proceeds of the sale of the land, from which judgment the plaintiff duly appeared.

JupTrSueSctoIOsuit. Taylor was not a party to the partition suit, nor to the motion; nor does the motion ask the court to direct that he be made a party and be brought under the jurisdiction of the court, so that his interests might be determined and equitably administered by the final judgment (the order of distribution) to be made in the partition case. The motion asked the court to direct the sheriff to pay over Bettie D. Hempstead’s distributive share to Taylor. What guarantee was there that Taylor would accept the payment, or excepting, that he would release the lands sold at the partition sale from the lien of his mortgage? What authority did the court have to compel him to accept payment or to *651enter a release? .The vice of the motion is that a party to be vitally affected by any order that could be made on it was not before the court, was not under its jurisdiction, and there was no course open to the court, but to overrule the motion. Judgment affirmed.