Elliott v. McCormickElliott v. McCormick
- Reporters:
- , ,
- Before:
- Seddon, Lindsay, Ellison (per curiam)
Briefly stated, the petition charges that the said judgment rendered against appellant on January 30, 1923, was procured by fraud, committed against appellant, and against the Circuit Court of St. Louis County, in that said William F. Trautner, the plaintiff in the action in which such judgment was rendered, made a false and fraudulent affidavit to the effect that said William F. Trautner has reason to believe, and does believe, that the appellant herein was not a resident of the State of Missouri at the time of the commencement of such action, and that, by reason of such false and fraudulent affidavit, the Circuit Court of St. Louis County was induced to assume jurisdiction of said action and to make an order therein that notice of the commencement of such action be given to the appellant herein by publication, resulting in a judgment being entered by default against the appellant herein, the issuance and levy of an execution under said judgment against the described realty, and the sale of said realty, on March 5, 1923, under said writ of execution, for a grossly inadequate price and consideration, to Alice Trautner, the wife of said William F. Trautner. The petition further avers that the respondents, Alice Trautner and William F. Trautner, by deed of conveyance dated June 2, 1923, purported to convey the title to said described realty to respondents, Charles W. Baker and Eva W. Baker, husband and wife, and that said Charles W. Baker and Eva W. Baker, by deed of conveyance dated June 2, 1923, purported to convey the title to said realty to respondents, W. A. McCormick and Katherine M. McCormick, husband and wife, who, on June 2, 1923, purported to execute two mortgage deeds of trust upon said realty, conveying title thereto to respondent, Frank H. Brown, as trustee for said Charles W. Baker, to secure the payment of certain promissory notes, aggregating $1150, therein described; and that such instruments and deeds of conveyance were executed, made, and placed of record, in pursuance of a common plan, purpose, intent and design, entered into, formed and existing, by and between the several respondents, to deprive the appellant of her title to said real estate, and that such instruments of conveyance are a fraud upon plaintiff‘s rights and a cloud upon her title to said real estate.
The respondents William A. McCormick and Katherine McCormick filed a joint answer, averring that they purchased said real estate from the respondents Baker, for a valuable consideration, without knowledge of the falsity of the aforesaid affidavit of William Trautner (if
The trial court entered a decree and judgment, finding the issues for the plaintiff and ordering that the proceedings in the attachment suit aforesaid, including the judgment and writ of execution therein, and the several instruments and deeds of conveyance aforesaid, be set aside and for naught held. Timely motions for a new trial were filed by the defendants Brown, Baker and Trautner, upon consideration of which motions the trial court granted said defendants a new trial of the action, and the trial court, of its own motion, granted the defendants McCormick a new trial, and ordered the cause to be reinstated upon the docket of said court, from which order granting a new trial the plaintiff was allowed an appeal to this court.
The evidence herein tends to show that, on November 29, 1922, the respondent William F. Trautner commenced a suit, by attachment, against the appellant, Hattie Elliott, in the Circuit Court of St. Louis County, seeking to recover the sum of $166, claimed to be due and owing to Trautner from Hattie Elliott as a real estate commission for services rendered by Trautner in the sale of two pieces of real property, formerly owned by appellant and located in the city of St. Louis. Concurrently with the commencement of said attachment suit, William F. Trautner filed therein his verified affidavit, in the form prescribed by the attachment statute, stating, among other things, that the affiant “has good reason to believe, and does believe, that the defendant (Hattie Elliott) is not a resident of the State of Missouri.” Upon the filing of the petition and the affidavit aforesaid, a writ of attachment issued in said cause, under and by virtue of which writ the real property in controversy in the present action was seized and attached, and the Circuit Court of St. Louis
The evidence further discloses that the real property in controversy is an unimproved lot of land which immediately adjoins an improved parcel of land owned by the respondents William A. McCormick and Katherine McCormick, upon which latter parcel of land the respondents McCormick had resided for several years prior to the sale, under execution, of the land in controversy. It appears from the evidence of respondents that the respondents McCormick were desirous to purchase the unimproved lot of land in controversy, and that William A. McCormick called upon the respondent Frank H. Brown, who is a real estate agent, in May, 1923, and stated to Brown that he (McCormick) desired to buy the lot in controversy, but that he did not have the ready money to buy the lot, and offered the suggestion that, if Brown would loan McCormick the money to buy the lot, McCormick would pay back to Brown the money so loaned and advanced by Brown in monthly installments. The respondent Brown testified that he examined the title records of St. Louis County in order to ascertain the name of the record owner of the lot, and finding that the record title to the lot was in the name of Trautner, he located Trautner through the means of a city directory, and opened negotiations with Trautner for the purchase of the lot. The respondent Brown was the president of the Brown Realty Company, which company placed an order with a title company for the examina-
The evidence further shows that appellant had resided, with an unmarried daughter, Pearl, at 2519 West University Street, in the city of St. Louis, Missouri, for some thirty years prior to the year 1922. Appellant‘s daughter, Pearl, was married in September, 1921, to Alden Mullen, and, after their marriage, the daughter and her husband continued to reside in appellant‘s home at 2519 West University Street until July or August, 1922, when they removed to a home of their own at 3200 Pennsylvania Avenue, in South St. Louis. Appellant sold her home property on University Street in September, 1922, together with a part of her household furniture, and the remaining part of her household furniture was removed at that time to the home of her daughter, Mrs. Mullen. Appellant had a son, George Elliott, and a married daughter, Mrs. Ethel Colvin, both of whom resided in Berkeley, California. Appellant testified that she went to Berkeley, California, in January, 1922, to nurse and attend her daughter, Mrs. Colvin, who then was critically ill with influenza, and that she returned to St. Louis for a few months in the summer of 1922, remaining in St. Louis until the latter part of October, 1922, when she again went to her daughter‘s home in Berkeley, California, where she remained for more than a year, and until her return to St. Louis, Missouri, in May or June, 1924. Appellant testified: “I left for California in January, 1922; that was my first trip to California. I bought a one-way (railroad) ticket, and stayed there until the latter part of May or first part of June, 1922, when I returned (to St. Louis), and at the time when I left California I purchased a round-trip (railroad) ticket from California to St. Louis and from St. Louis to Berkeley, which ticket expired on the last day of October, 1922. I returned to St. Louis because I wanted to sell my
Appellant‘s daughter, Mrs. Pearl Mullen, testified: “Mr. Trautner asked mother what she intended to do, and mother told him she was going to California. He asked her, in my presence, ‘Do you intend to make your home there?’ and she said, ‘No,’ but she did not go into details about my sister being sick; she did not tell him that, at that time, my sister had been awfully sick and she was there caring for her. Mr. Trautner was there twice when I was present. . . . During the last conversation with Mr. Trautner he asked mother what she intended to do after she sold her property, and she told him she intended to go back to California, she had a round-trip ticket and intended to go back to California, and she did not state how long she intended to stay there, because she did not know how long she was going to stay; she did not know herself, when she went back, how long she was going to stay. That conversation took place at the house during the second visit of Mr. Trautner.”
Appellant‘s daughter-in-law, Mrs. George Elliott, testified: “When she (appellant) was not at my house in Berkeley, California, she was at Mrs. Colvin‘s home, and any time she left my house she would go back to Mrs. Colvin‘s home; she made her home with Mrs. Colvin.”
David Saphir, a witness on behalf of respondents, testified: “I met Mrs. Hattie Elliott, the plaintiff (appellant), in buying her property on University Street, in the summer of 1922, at 2519 University Street, at her house; I talked to her relative to the purchase of the house; she said she wanted to sell the house because they are leaving the State; they were leaving for California; she offered to sell the furniture to me, but I was not interested in the furniture.”
The respondent William Trautner testified: “On July 13 or 14, 1922, we (appellant and witness) had a general discussion about her property, and she (appellant) stated that she had a round-trip ticket which expired some time in October (1922), the latter part of October, from California to St. Louis and return, and she was very anxious to dispose of her property before she had to go back to California, and for that reason she wanted to get it off her hands so that she would not be thinking of it when she went back there; . . . Mrs. Elliott never told me why she was going to California; she told me she was going there to live; . . . there was not very much said about it; she was very anxious to get rid of her property,
The appellant testified that she had owned the lot in controversy for nineteen or twenty years, and that the reasonable value of the lot was $1800; that she knew nothing about the attachment suit being brought against her by respondent Trautner, or that a judgment had been entered in said action, or that the lot had been sold under a writ of execution upon said judgment. She testified further that, upon her return from California in the early summer of 1924, she paid the taxes which had been assessed against the lot for the years 1922 and 1923, and appellant introduced in evidence the tax receipts, which were stamped “paid” on June 16, 1924. Thereafter, appellant learned that respondents McCormick were claiming to own the lot of land in controversy, and commenced the present action in equity to set aside the several muniments of title on September 11, 1924.
I. Appellant assigns error on the part of the trial court in granting the respondents a new trial of the instant action in equity, the appellant claiming that the evidence herein is amply sufficient to support the decree, originally entered by the trial court in her favor, setting aside the judgment and the proceedings in the attachment suit brought against appellant by the respondent William F. Trautner, including the judgment and the writ of execution therein, and setting aside the several subsequent instruments of conveyance, dated June 2, 1923, and revesting the title to the lot of land in controversy in appellant. Respondents, on the other hand, take the position that the evidence herein is wholly insufficient, in character and weight, to entitle the appellant to the equitable relief which she seeks by the instant action; that the decree, originally entered by the trial court in favor of appellant, was against the weight of the evidence, and was against the law applicable to the evidence; and, therefore, that the trial court rightly granted a new trial of the action.
Appellant urges that the evidence herein shows that she was only temporarily absent from this State at the time of the commencement of the attachment suit brought against her by William F. Trautner, with the intention on her part to return to her domicile in this State, and that it was never her intention to change her domicile and residence from Missouri to California; that the absence of a person from his domicile for a temporary purpose, whether such absence be
The Greene, Chariton County and Martin cases, supra, were all suits by attachment, brought upon the statutory ground that the defendant, at the time of the commencement of such suit, was a non-resident of this State. In each of those cases, the defendant appeared in the action and filed a statutory plea in abatement, specifically denying that he was a non-resident of this State at the time of the commencement of the action, thereby raising the issue of the truth of the alleged ground of attachment, which issue of fact was tried and submitted to a jury, or to the court, sitting as a jury, before a trial was had upon the merits of the main suit or action, and the verdict and finding upon such issue of fact was in favor of the defendant. In other words, in each of the cited cases, the issue of the defendant‘s non-residence was timely raised by a statutory plea in abatement, and such issue was tried and determined as an issue of fact, upon proper instructions or declarations of law, and the finding, or verdict, of the triers of the fact was held to be conclusive on the question of the defendant‘s domicile and residence. In re Lankford‘s Estate, supra, was a proceeding originally commenced in the Probate Court of Saline County, Missouri, under the collateral inheritance tax statute of this State, for the purpose of assessing the collateral inheritance tax against the property and estate
The appellant herein, by the present independent equitable action, seeks to set aside the judgment and the proceedings had, made and entered of record (all of which are conceded to be regular in form) in the attachment suit of William F. Trautner against Hattie Elliott, in the Circuit Court of St. Louis County, upon the alleged ground of fraud, committed by said Trautner, in the procurement of the judgment in the attachment suit. In such an independent equitable action, the presumption is always in favor of the verity and validity of the judgment therein attacked, and of the regularity and validity of the proceedings leading to the rendition of such judgment, and the burden rests upon the party seeking equitable relief against such judgment to establish the alleged fraud in the procurement of such judgment by evidence and proof that is so cogent, clear, strong and convincing as to leave no reasonable doubt of such fraud in the mind of the chancellor.
In 34 Corpus Juris, 494, it is said: “On a bill in equity for relief against a judgment at law, presumptions will be indulged in favor of the jurisdiction of the court, the regularity of its proceedings, and the validity of the judgment. . . . Fraud in procuring the judgment will neither be presumed nor inferred from circumstances which are not inconsistent with good faith. In general the burden of proof is upon the party demanding relief against the judgment to establish by sufficient evidence all the facts on which he relies as the basis of his application.” And, in 34 Corpus Juris 496, it is further said: “To entitle a complainant to relief in equity, against a judgment on the ground of fraud, the proof in support of the allegations of fraud must be clear, distinct, and certain, and, according to some decisions, so cogent and strong as to leave no reasonable doubt.” Our own court, en banc, in Lieber v. Lieber, 239 Mo. 1, 31, has thus clearly stated the rule of evidence as applied in this State: “The law is well settled here and elsewhere, that a court of equity will in a direct proceeding grant relief against a judgment or decree procured by fraud provided the fraud is established by clear, strong and cogent evidence, leaving no room for reasonable doubt
The statute (
The evidence herein, most of which was adduced by the appellant, shows that the appellant left the State of Missouri in January, 1922, and went to the State of California, where she stayed in the home of her daughter, Mrs. Colvin, until May or June, 1922, when she returned to St. Louis, Missouri; that she purchased a round-trip railroad ticket from Berkeley, California, to St. Louis, Missouri, and from St. Louis to Berkeley, California, which ticket entitled her to return railroad transportation to Berkeley, California, until the last day of October, 1922; that, while appellant was in St. Louis, she sold her domicile, or home, in St. Louis, together with a part of her household furniture, in September, 1922; that she left the State of Missouri in the latter part of October, 1922, and returned to Berkeley, California, where she continuously remained until May or June, 1924, a period of nineteen or twenty months, before again return-
The evidence herein, in our opinion, is not so clear, strong, cogent and convincing as to leave no reasonable doubt of the alleged fraud, on the part of respondent, William F. Trautner, in the procurement of the judgment in the attachment suit; wherefore, the appellant has failed to establish, by that degree and character of proof as is required in this kind of equitable action, the averment of her petition that the judgment in the attachment suit was procured by the fraud of Trautner, committed upon the Circuit Court of St. Louis County; and, having failed to establish the alleged fraud in the procurement of said judgment, the appellant is not entitled to the relief, in equity, against said judgment which she seeks in the present independent action.
The applicable rule of evidence, in cases where a fraudulent conspiracy is alleged and relied upon as a ground for the intervention of a court of equity, is thus clearly and positively announced in Jones v. Nichols, 280 Mo. 653, 664: “The burden of proof in such cases is upon the plaintiff to make out his case by clear and convincing evidence. While fraud may be inferred from facts and circumstances, it is never to be presumed without or against the evidence. And where the transaction under consideration may as well consist with honesty and fair dealing, as with a fraudulent purpose, it is to be referred to the better motive. [Garesche v. MacDonald, 103 Mo. 1; Hardwicke v. Hamilton, 121 Mo. 465; Warren v. Ritchie, 128 Mo. 311.]”
Viewing the evidence herein in the light of the settled rule in such cases, we think that the appellant has failed to establish the averment of her petition that the instruments of conveyance dated June 2, 1923, “were executed, made, had and procured by the defendants in
II. Appellant insists, however, that the evidence indisputably shows that the lot in controversy was sold to respondent Alice Trautner, wife of respondent, William F. Trautner, at sheriff‘s sale, under a writ of execution issued upon the judgment in the attachment suit brought against appellant by said William F. Trautner, for the mere pittance and sum of $63.96, a price and consideration which is claimed by appellant to be so grossly inadequate as to shock the conscience of a court of equity, and that such grossly inadequate and unconscionable consideration, in and of itself, is a badge of fraud; and it is furthermore urged by appellant that the sheriff‘s deed, which purported to convey the title to the lot in controversy to respondent Alice Trautner, appeared of record upon the deed records of St. Louis County, and in the chain of title to such lot, thereby importing constructive, if not actual, notice and knowledge to the respondents McCormick, Brown and Baker of the alleged fraud of the respondents Trautner, and of the grossly inadequate and unconscionable consideration paid by the respondent Alice Trautner, for such lot at the execution sale. Wherefore, appellant claims that the respondents McCormick, Brown and Baker are not innocent and bona-fide purchasers of said real property for a valuable consideration and without notice of infirmity in the title to said realty.
Appellant, in support of her claim and contention just stated, places reliance upon the rulings of this court announced in Guinan v. Donnell, 201 Mo. 173; Mangold v. Bacon, 237 Mo. 496; Van Graafieland v. Wright, 286 Mo. 414; and State ex rel. v. Davidson, 286 S. W. 355. In none of the cases cited and relied upon by appellant, however, does it appear that the purchaser (at the execution sale sought to be set aside in equity for gross inadequacy of consideration) had thereafter sold and conveyed the real property in controversy to a bona-fide vendee; consequently, none of the cited cases involved the rights and title of a bona-fide vendee of the purchaser at the execution sale.
A majority of this court, en banc, thus announced the rule or doctrine in Mangold v. Bacon, 237 Mo. 496, 521: “We think the conservative and better doctrine is that a court of equity in Missouri, acting with caution and only in an aggravated case and when no aid
In the Van Graafieland case, supra, while it appeared that the purchaser at the execution sale had purported and pretended to convey the land therein in controversy to third parties, yet such third parties were made defendants in the equitable action to set aside the execution sale, and, by their answers filed in said action, such third parties disclaimed any interest or title under the deeds from the purchaser at the execution sale, and the purchaser at the execution sale, by his answer, admitted that such conveyances were made without consideration and “for the purpose of enabling the defendant to secure from a subsequent purchaser whatever value the defendant‘s equity in the property may be worth;” and the court furthermore found, from all the evidence in the case, that such deeds (to third parties) were without consideration, and were made and received with full knowledge of all the facts, and for the purpose of assisting the purchaser at the execution sale to defraud the plaintiffs out of their property. Again, the writer of the opinion in the Van Graafieland case was cautious to say (l. c. 433): “Before closing we desire to say that we have not determined in this case that inadequacy of consideration alone is ground for setting aside a sheriff‘s sale in equity. If such a case can be, where the property is of great value and the consideration simply nominal and the judgment debtor is the purchaser, we have not endeavored to consider it.”
In 23 Corpus Juris, 766, it is said: “The inadequacy of the bid at the execution sale cannot be invoked to destroy the title of a remote purchasee on the ground that it per se put him on notice.” The identical question was presented to the Supreme Court of Mississippi for decision in Hart v. Gardner, 81 Miss. 650, 656, wherein that court announced: “We cannot subscribe to the doctrine advanced that, in an attack like this on the title of a remote vendee, the inadequacy of the bid at execution sale can be invoked to destroy his title on the ground that this, per se, put him on notice.” In 35 Corpus Juris, 94, the rule is stated: “A bona-fide grantee for value from a purchaser at a judicial sale is not affected by irregularities, mistakes, or fraud, of which he did not have notice, although as to the grantor the sale might have been set aside.”
In the instant case, we find no evidence in the record before us that the vendees of Alice Trautner and her husband, William F. Trautner, had any actual knowledge of the alleged fraud of William F. Trautner in the procurement of the judgment in the attachment suit brought by Trautner against the appellant, Hattie Elliott, and, as we have said, we find no evidence in the record that the respondents McCormick, Brown and Baker colluded, connived or conspired with the respondents Trautner, to fraudulently and wrongfully deprive appellant of the title to the lot of land in controversy. The evidence strongly tends to show that the respondents McCormick, as vendees of the respondents Trautner, paid a valuable consideration of $1200 for the lot in controversy; and that they caused the title to the lot to be examined, and a certificate of title to be furnished by a title company, in reliance upon which certificate of title they purchased the real property, in apparent good faith, for the valuable consideration aforestated, receiving a warranty deed conveying the title thereto. The title of the respondents McCormick cannot be set aside, annulled and destroyed without extending and applying the doctrine announced by this court in the Mangold and Van Graafieland cases, supra, to the bona-fide vendees of a purchaser at an execution sale; which is farther than this court manifested and declared its intention to apply the doctrine announced in those cases. We are not disposed to extend and apply the doctrine announced in the Mangold and Van Graafieland cases to persons other than the original and
We are of the opinion that the evidence herein is insufficient to establish the averments of fraud set forth in the appellant‘s petition as ground for the equitable relief sought by appellant, and therefore the learned trial court did not err in setting aside the decree originally entered in favor of the appellant, and in granting the respondents a new trial of the action. The order of the circuit court granting a new trial must be affirmed, and the cause remanded to the circuit court for retrial. It is so ordered. Lindsay and Ellison, CC., concur.
PER CURIAM:—The foregoing opinion by