*1 263 all; right the seeds to handle had no money which he sums large reigns in com- general chaos many planted and are lawsuits protected acts thought they in their were people munity, where law. Blair, J., I concurs. dissent. For reasons these S. Appellant, W. A. McCormick v. W. et al. Hattie (2d) 654. One, July 30, 1929. Division *2 appellant. Heideman & Heideman for Thompson Thompson G-uy Thomp- & A. ánd Frank A. Thompson, Brown. respondent Frank H. son *3 equity, by appellant (plain
SEDDON, C. Action in commenced beloiA1-) 1924, judgment September set de II, on aside tiff January 1923, in favor 30, of re against fault her on rendered Court of St. Louis Trautner, Circuit spondent, William F. County, in on November suit, certain commenced attachment 29, 4, Kenwood, 1922, resulting 31, in a sale of Lot in block platted 1923, under subdivision in County, St. Louis on March judgment execution levied de- issued to enforce said realty, mortgage scribed and to deeds set aside two deeds two n trust, realty. conveying all said 2, 1923, dated June charges Briefly stated, petition judgment that the said rendered against procured by fraud, appellant was January against against committed the Circuit Court of St. County, plaintiff in that said William F. judgment rendered, action in which such made a false and fraudulent affidavit the effect that said William F. has believe, believe, appellant reason to herein and does was not a resident of Missouri the State of at the time the commencement that, by of such action, and reason of such false fraudulent af- fidavit, County Court Circuit of St. Louis was induced assume jurisdiction of said action and to an order make therein notice given commencement of action be herein resulting being publication, in a default levy herein, the issuance and of an execution judgment against realty, under said described the sale of said realty, 5, 1923, on March execution, under writ of for a grossly inadequate price consideration, to Alice petition wife said William F. Trautner. The further avers that respondents, Alice Trautner and William F. Trautner, deed conveyance 2, 1923, purported convey dated June the title to realty respondents, said described W. Charles Baker and Eva Baker, W. wife, husband and and that said W. Charles Baker and *4 Eva W. Baker, conveyance 2, 1923, purported deed of dated June convey realty the title to said respondents, W. A. McCormick wife, and Katherine M. McCormick, who, husband and on June 1923, purported to mortgage upon execute two of deeds trust said realty, conveying respondent, title thereto to Frank Brown, H. for trustee said Charles Baker, payment W. to secure the of cer- promissory tain aggregating notes, $1150, described'; therein and made, that conveyance such instruments and deeds of! executed, were placed of record, pursuance plan, purpose, of a common in- design, tent into, hy formed and existing, and between respondents, deprive the several of her said estate, real conveyance and that such instruments of upon are a fraud plaintiff’s fights upon and a cloud her title to said real estate. respondents William A. McCormick and Katherine McCormick joint answer, filed averring they purchased said real estate from respondents Baker, for a consideration, valuable without knowl- edge falsity of aforesaid affidavit (if William Trautner they in- untrue), and that are in fact such affidavit wore false any purchase of such real estate. The re- fraud nocent of joint answer, Baker spondents W. Baker Eva W. filed a Charles they purchased property real averring that said for Trautner, "William F. a valuable considera- Trautner and Alice conveyed they real re- sold and said tion, McCormick, for spondents W. a valu- A. McCormick and Katherine part purchase price consideration, receiving, of said able as a trust promissory *5 believe, (Hattie Elliott) that the defendant is not a of resident the Upon filing State of Missouri.” petition of the the and the affidavit aforesaid, a writ of cause, issued 'said under attachment virtue of which real property controversy writ the present action was seized attached, Circuit and the Court of St. Louis
co the to publication, County an order of directed made and entered to requiring said defendant Hattie -the therein, defendant of petition day certain on a to answer appear in said cause duly published publication which order of was Trautner, William F. Upon the county, provided by law. Louis newspaper in a of St. of order, upon said the failure filing proof publication of in said day mentioned said cause on appear Hattie Elliott to County order, of St. Louis the Circuit Court January 1923, in favor William F. Trautner default, prayer petition, with the in accordance Elliott Hattie levy was upon judgment and was said a writ of execution issued controversy herein, and the real property in said upon made the real St. for sold the Sheriff of property sale was advertised execution, pursuant public to writ of County, the aforesaid Louis respondent wife Trautner, Alice on March sale held $63.96, price for the and consideration of William applied payment of costs the ac sum was the court which executed, deed, 7, T923, was dated tion, and a sheriff’s March duly Trautner, and recorded acknovdedged and delivered to Alice conveying said upon county, records of the title to deed of record respondent real Alice Trautner. The abstract suit) proceedings (in are herein recites that “said attachment regular all in form.” property in discloses the real
The evidence further immediatély improved unimproved adjoins, of land -which an lot respondents parcel land William A. McCormick owned McCormick, upon parcel re which latter and Katherine land prior years for spondents McCormick resided several execution, controversy. appears land sale, under It respondents McCormick were the evidence purchase unimproved controversy, lot of land in desirous to respondent A. Frank H. that William called McCormick Brown, agent, May, 1923, stated Brown who is a real estate buy (McCormick) controversy, he lot but desired sug money buy ready lot, he did not havei the and offered the gestion money buy if loan that, Brown -would McCormick the lot, pay money to Browm so McCormick back loaned -would monthly respondent Brown in installments. Brown advanced County in he the title records of testified that examined St. find lot, name owner of order to ascertain the record ing he record title to the lot was the name that the city directory, through opened means of a located Trautner purchase for the lot. re negotiations with Trautner Realty spondent president Company, of the Brown Browm was the placed company with a company an order the examina *6 furnishing resulting controversy, the lot of title tion tlie title, addressed preliminary certificate' of company of a title 1923, May William wherein the title 31, dated Trautner, and title an examination of the that made it had company certified in Alice well controversy “find the title vested and the lot of of certificate title afore furnishing Upon the Trautner.” loaned Brown advanced McCormick respondent said, agreed consideration for the sale of the was the $1200, which sum of (after amounting $1023 sale, of the paid proceeds lot, net commissions), to Alice expenses real estate deducting certain Realty Company, drawn on check of the Brown Trautner 1923. Missouri, 12, dated June Maplewood, Bank of Citizens’ Trautner sale, respondents Alice Upon the consummation conveyed lot in to Charles William F. Trautner by warranty deed, dated Baker, wife, his June W. Baker Eva W. other expressed $100 valuable for consideration 2, 1923, an W. warranty deed, 2, 1923, Charles By dated June consideration. Baker, wife, conveyed said lot of land to W. W. his Baker and Eva expressed McCormick for con Katherine M. A. McCormick and Mc consideration, other W. A. $100 and valuable sideration of McCormick, wife, his executed and delivered Cormick and Katherine 2, conveying lot of land trust, 1923, two deeds of June dated Baker, Charles W. of trust Brown, to Frank H. trustee for one deed payment promissory $500, for being given to secure the of a note being given payment of to secure the the second deed trust twenty-six aggregating $650. installment notes The evidence aforesaid were respondents is to the effect the deeds trust money given advanced loaned payment to secure the lot. All of the purchase Brown to McCormick acknowledged respective parties of title instruments were 1923, office of the Recorder of 11, June and were recorded County 13, 14, 1923, 1923. On June of St. Louis on June Deeds company furnished a final certificate title to the effect 4, sub it had examined the title to lot block Kenwood well in W. A. McCormick division, and “find the title vested subject McCormick, wife,” his liens the two Katherine aforesaid, respondent 1923. Brown deeds of trust dated June promissory testified the several notes secured the two deeds consideration, sold, of trust aforesaid were thereafter for a valuable persons, appellant purchasers, who, to various as unknown has made by publication He parties, defendant the instant action service. W. no further Charles W. Baker and Eva Baker had testified pecuniary being merely transaction, they interest used parties,” through passed lot “straw whom the title respondent respondents McCormick. The testified, ‡500 in re paid about that lie A. McCormick William dated trust, by the deeds secured of the indebtedness duction controversy. There is no evidence 1923, upon the lot June understanding, conspiracy, plan, herein of common the record respondents McCormick, Baker and between the concert *7 respondents Trautner, on the other Brown, hand, on one wrongfully fraudulently appellant, or to defraud the hand, to controversy. respondents The of land in acquire title to the lot acquaintance they had no and Brown testified that McCormick when the prior Alice Trautner to the time William F. Trautner and respondent William lot. purchased McCormick respondents Mc not know that he did F. Trautner testified lot;“[ of the sale of the consummation Cormick, at the time street; if him I (McCormick) I on know man met would not property I sold the to the Mr. McCormick at the time did not meet selling I Realty Company; I know whom was Brown did not property to.” resided, with an evidence further shows daughter, Pearl, University Street, West in
unmarried 2519 thirty years prior year city Louis, Missouri, of St. some 1921, Pearl, September, in Appellant’s daughter, 1922. was married marriage, daughter her Mullen, and, to after their Alden appellant’s at 2519 Uni- continued to reside home West husband July 1922, they versity August, until or when removed to a Street Pennsylvania Avenue, in South Louis. home of their own at St. University September, Street in Appellant sold her home together part furniture, her 1922, with a household the re- maining part of her was removed at time household furniture daughter, Appellant son, Mullen- to home of her Mrs. had a George Colvin, daughter, and married Mrs. Ethel both of Berkeley, Appellant whom California. resided testified she tl\at California, January, 1922, to nurse Berkeley, went and attend to Mrs, daughter, critically influenza, who ill with Colvin, her then was Louis for that she returned to St. a few months the summer of remaining part 1922, in St. until October, latter again daughter’s Berkeley, California, when she went her home in to year, and until where she remained for more than a her return to Louis, Missouri, May June, Appellant St. 1924. “I testified: January, 1922; my trip first left for California was to Cali- (railroad) bought stayed I one-way ticket, fornia. un- there part May part I June, 1922, til or first when the latter returned (to I T Louis), purchased when St. and at the time left California (railroad) round-trip St. ticket California to Louis and from expired Berkeley, day St. which last Louis to ticket on the of Oc- I tober, 3922. I to St. Louis because wanted mv returned to sell daughter (on my going place move property; out of that University Street), I place any- could not leave the without I body being round-trip there. ... I told Mr. Trautner had a go California, just back my daughter, ticket sick I would run out October. ... returned to California May remained 1924. I October, June, there until re- (to Louis) June, my turned St. because it is home here.” Appellant’s daughter, Pearl Mullen, testified: “Mr. Mrs. do,
asked she what intended to and mother told him she was mother! going you California. her, my He asked presence, ‘Do intend your said, to make home there’? she ‘No,’ go but did she not my being sick; into that, details about sister she did not tell him time, my awfully at that sister had been sick and she was there ear- ing for her. Mr. Trautner present. was there twice when I was During . . . the last conversation with Mr. Trautn.er he asked what intended to after property, she do she sold her mother and she go told him intended to round-trip she back to California, she had a go ticket and intended back California, and she did not state *8 long stay how there, she intended to because she did not know how long going stay; she was she not herself, did know when she went back, long going how stay. she was That place conversation took during at the house the second visit of Mr. Trautner.” ‘‘ Appellant’s daughter-in-law, George Elliott, Mrs. When testified: my she (appellant) was not at house in Berkeley, California, she home, was at Mrs. my Colvin’s time she left she house would go back to Mrs. home; Colvin’s she made her home Mrs. Colvin.” Saphir,
David a witness on behalf of respondents, testified: “I plaintiff met Mrs. Hattie (appellant), buying her University Street, oh 1922, the summer at 2519 University house; Street, at her I to her pur- talked relative to the house; chase of the said she she wanted to sell the because house they leaving State; they leaving are California; were for she me, offered to sell the I furniture to but was not in the interested ’’ furniture. respondent William Trautner July testified: “On 14, 1922, witness) (appellant we general had a discussion about property, (appellant) her and she stated that she had round-trip expired which ticket some time in October (1922), the latter part of October, from California to St. return, Louis and and she was very dispose anxious to of her property go before she had back California, get that reason she wanted to it off her hands thinking so that she would not be it when there; she went back why . . . Mrs. never told going Elliott me she was California; going live; she told me she was there to . . . very there was not it; very get much said about she was anxious rid of her property, it; I after to sell California; she was anxious and then left for she I University property, Street Elliott sold the that Mrs. liad learned and, neighbors, fur- inquired 1. her; made some effort to locate city St. Louis I office thermore, down to Recorder’s went they lived, Mrs. Elliott they could where to find out if locate street; neighbor across the it; inquired I of one had no record of I think.” Hays, her name is Mrs. lot she had owned the testified that value twenty years, that the reasonable for nineteen or nothing suit be- $1800; knew about the attachment lot was that she judgment brought or that ing against respondent Trautner, her been sold under or that lot had been said had entered that, further She testified judgment. a writ execution early 1924; she upon her return California summer years lot for the paid the been assessed taxes the tax re- introduced evidence 1923, 1922 and Thereafter, 1924. stamped “paid” 16, on June ceipts, which were claiming to respondents were own McCormick appellant learned present commenced action controversy, lot of land September muniments of title on equity the several to set aside 1924. grant- assigns part of Appellant
I. error the trial court on the equity, a new trial of the instant action ing appellant claiming amply herein sufficient evidence originally by the trial support decree, favor, setting in her and the court aside the proceedings brought against appellant in the attachment suit including respondent judgment and the William F. subsequent therein, setting writ of aside several execution revesting conveyance, instruments of dated June *9 Respondents, appellant. on title to the of land lot wholly herein is hand, position the other take the that the evidence to the insufficient, weight, and to entitle character the action; equitable which instant that the de- by relief she seeks the by cree, originally trial court in favor of the against weight evidence, against was of and the law the the .was evidence; rightly applicable and, therefore, that trial court to the the granted a new trial of the action.
Appellant urges only the herein that she was that evidence shows temporarily State time absent this at the of the commencement brought against of the suit her William E. attachment part State, on her return her in this the intention domicile and to change that it was her intention her domicile and never California; person residence a from Missouri to absence of the tempoi’ary purpose, from his whether such absence be domicile a
273 change established time, not long period, short of does for a or a person, a person; that whether of the and and residence domicile and residence established domicile who shown to is have had State, residence another domicile changed this has his person of whose foreign state, wholly matter o£ the intention is a brought controversy, intention such and residence is domicile Hience, ap person. of such is evidenced the acts and statements amply to show pellant argues that evidence is sufficient herein William attachment, affiant, affidavit in made believe, good “has said affiant reason to the effect that (Hattie Elliott) resident believe, the defendant not and does untrue, fraudu Missouri,” of of was false and and was the State St. purpose inducing of the Circuit Court of lently made for the County suit, jurisdiction of attachment assume upon of the commission of a fraud the Circuit Court amounted to procurement County of the writ attachment St. Louis of procurement appellant’s property, of the real suit, of a in said attachment the issuance writ of execu appellant’s upon judgment, of real tion sale position question, In on the support thereunder. of her aforesaid Beckwith, rulings this in Greene cites the of court v. 238; 384; County Moberly, Mo. v. 59 Mo. In Lank Chariton re ruling 147; 197 S. Estate, Springfield ford’s W. and the Court 410. Appeals Barrett, in Martin v. S. W. Greene, County cases, Chariton Martin all supra, were brought upon statutory ground attachment, suits the' defendant, at the such non- suit, time of the commencement of was a cases, ap- of this In each of resident State. those defendant peared plea abatement, statutory speci- in the action and filed a denying that fically he was a non-resident this State at the time action, raising thereby of the of the commencement issue alleged ground attachment, was truth of the issue of fact sitting jury, court, jury, tried and submitted to a be- or as a upon the merits of the main suit fore trial or finding verdict issue fact was in favor of the In words, cases,-the other in each cited defendant. issue timely plea statutory defendant’s non-residence was raised abatement, and such issue was an issue determined as tried fact, upon proper instructions find- law, declarations and the ing, verdict, of the triers was held conclusive fact to be question of In re the defendant’s domicile residence. proceeding Estate, supra, originally Lankford’s was a commenced County, Missouri, Probate col- Court Saline under the *10 State, purpose inheritance for the of as- lateral tax statute of this sessing against tax the the collateral inheritance and estate Lankford, (inestion,
of deceased, issue, and or deceased tbe whether was a resident of Missouri at the of his death was tried sub- time and opinion, no cases, mitted as issue of fact. The in our have cited bearing application upon precise us, pre- issues now before the by appellant’s equity herein, namely, whether af- sented bill the attachment, by respondent Trautner, fidavit made was and false fraudulently made, filing was the such affidavit and whether upon the attachment suit a fraud was Circuit Court of St. Louis County, whereby said and wrong'fully. court was misled induced jurisdiction suit, judgment assume of the attachment and Avherebva fraudulently by procured Trautner. herein, present independent equitable action, by judgment proceedings seeks to set aside the had, made (all regular form) of which record are conceded to be against the attachment suit of William Trautner Hattie upon County, alleged ground the Circuit Court of St. fraud, procurement judg- committed of the equitable ment in the attachment suit. In an independent such ac- tion, presumption always verity is validity in favor of the judgment attacked, regularity validity therein leading proceedings of the to the rendition of judgment, such upon party seeking equitable burden rests against relief judgment alleged procurement establish fraud in the of such judgment proof clear, evidence and is so cogent, strong convincing as to no reasonable doubt leave of such fraud mind of the chancellor. Corpus
In 34 Juris, it is “On a bill equity said: for relief against judgment law, presumptions indulged will be in favor jurisdiction court, regularity of its proceedings, validity judgment. . . procuring . Fraud in judg- presumed ment will neither bo nor inferred from circumstances good are not general inconsistent faith. In the burden proof demanding is party against relief judgment to establish sufficient evidence all the facts on which he relies application.” the basis his in 34 And, Corpus Juris it complainant further said: “To entitle a equity, against to relief in judgment ground proof on the fraud, support of the al- legations clear, of fraud distinct, must be certain, and, accord- cogent ing decisions, strong to some so as to leave no reasonable court, Our own en banc, doubt.” in Lieber v. Lieber, 239 Mo. 1. clearly has thus stated the applied rule evidence as in this State: “The law is well settled here and elsewhere, that a court of equity proceeding grant will a direct relief provided clear, procured decree fraud is established fraud strong cogent evidence, leaving no room reasonable doubt
275 rean- been foregoing its existence.” The rule has [Italics ours.] of Mc nouncecl, court, in v. applied by McDonald followed tbis 331; 172, 176; 242 309 Daniel, 312, McFadin v. Mo. Simms, Mo.
Reger v. 316 Reger, 1310, 1327. Mo. (Sec. our 1730, part R. is a of Code 1919), statute S. wbicb Procedure, requires
of Civil in attachment shall that the affidavit (in plaintiff suit), or
made the attachment him, among state, mat person some who shall other believe, ters, good believe, “that he reason to does has according which, in or of the existence of one more the causes provisions plaintiff article, of Section 1725 of this would entitle 1919, pre to sue 1725, attachment.” Section Revised Statutes separate grounds, scribes causes, fourteen and distinct or for which plaintiff may in civil action an attachment have ground of prescribed a defendant first being section is said of statute “where the defendant not a readily noticeable, language resident of It this State.” is from the 1730, require supra, of Section that the statute does not that certainly, maker of the positively, attachment affidavit shall in n dubitably, infallibly, or state in the affidavit existence attachment, instance, ground particular which, or cause in this State;” that “the defendant is not a resident of this on the contrary, only requires the statute maker affidavit of the good state shall therein ‘‘that he believe, has reason to md does be lieve, ground existence” or cause attachment. The affidavit made and filed William F. Trautner the attachment language prescribed by was in form suit the exact Section suit, petition statute. In his William F. the attachment Elliott) (Hattie Trautner a averred “the defendant non resident of State Missouri, resides, to the of his best knowledge, in State of California.” herein, which appellant, evidence most of was adduced January, 1922,
shows that the left the State of Missouri California, stayed and went to the State where she the home daughter, May June, her Mrs. Colvin, until or she re- when Louis, Missouri; round-trip turned purchased to St. she rail- a Berkeley, ticket from California, Missouri, road Louis, to St. Berkeley, California,
from St. Louis to ticket entitled her to transportation return Berkeley, California, railroad until day October, 1922; that, last Louis, while was in St. she together domicile, home, sold her or St. Louis, part with of her furniture, September, 1922; household that she left the State of part Missouri in October, 1922, the latter and returned to Berke- ley, California, continuously May where she June, remained until period of or twenty again nineteen months, before return- period of nineteen
ing During such State of Missouri. daughter- twenty appellant’s according testimony of months, her home in-law, George Elliott, appellant “made Mrs. Berkeley, Ac- California. Colvin,” daughter appellant, Mrs. daughter of cording testimony Mullen, Pearl another of Mrs. William told appellant, summer California; had a go she back to “she intended to *12 California, she did round-trip go back to and ticket intended to and stay not there, because she did long state to not how she intended herself, stay; did not know going to she long know how she was long going was to (to California), she back how she when went him stay.” respondent appellant that told testified The dispose she very of her before “she was anxious that to go to California, for that reason she wanted to back to and had thinking of it when get it off hands that would not be her so she there; going there live.” There told was to she went back she sheme wanted to Saphir that she appellant is told one David evidence that leaving was the State place her in St. because she sell home Louis view' facts and Missouri, going to In of the was California. and action, in view present in in of the evidence circumstances Louis, departure her from St. by appellant prior statements made to October, which was Missouri, for the State of California in of the attachment suit at least a month before the commencement by may well been warranted Trautner, think that Trautner have we honestly appellant her former believing in had abandoned that her Missouri, domicile removed domicile and residence Certainly, cannot be said residence to the State of California. it by court, or learned trial with certitude or assurance this if. known below, circumstances, to chancellor that facts and statement, in Trautner, justify making not his the sworn at- did affidavit, good believe, to be- tachment that he “has reason does lieve, is a resident the State of Missouri. that defendant not strong, cogent is herein, opinion, clear, in our not so evidence fraud, convincing alleged as no reasonable doubt of the to leave Trautner, part procurement respondent, on the William suit; wherefore, appellant judgment the attachment degree proof establish, failed and character is has that petition equitable action, her required in kind the averment of this procured by suit judgment attachment -was the fraud County; Circuit Court St. committed alleged and, having procurement fraud failed establish the relief, judgment, equity, entitled to is not of said present independent 'which seeks she action. appellant’s instruments petition
II. several avers June'2, whereby conveyance, dated the title to the lot conveyed defendants, McCormick, Brown and executed, made, procured had and
Baker, “were placed pursuance com defendants of‘a record existing plan, purpose, design, mon intent and formed and between deprive plaintiff all herein her herein, the defendants title to given study said real estate.” close and scrutinous We have analysis herein, find no evidence the record! the evidence and we tending plan, pur before us to show the existence of common pose collusion, design, conspiracy or and concert of McCormick, Brown on Baker, and between the defendants hand, hand, one other to fraud the defendants ulently deprive appellant of wrongfully the title to the controversy. opinion, sufficient, land in Nor our the evidence give existed, to a fair inference rise reasonable and there defendants, any plan, purpose, between the several common deprive collusion, conspiracy of the title to said real tending no estate. There is evidence to show
McCormick, any Baker and Brown acquaintance, dealing, had respondents relation Trautner, kind with the until the con summation of the sale of the lot Trautner and his wife to McCor mick respondent and his wife. The testified that he was unacquainted respondents McCormick, with the and “would not (McCormick) know the man if I him on met the street.” The re spondents they Brown McCormick and likewise testified that had no acquaintance respondents prior Trautner, to the consummation controversy. appellant of the lot in no the sale offered evi contrary. dence applicable evidence, rule cases where a fraudulent con
spiracy alleged ground upon a and relied as for the intervention equity, clearly positively of a court of is thus and announced Nichols, v. 664: proof Jones 280 Mo. “The burden of in such upon plaintiff cases is to make out his case clear and con vincing’ may evidence. While fraud be inferred from facts and circumstances, against presumed it is never to be without may evidence. And transaction under consideration where the as honesty dealing, fair well consist with as with a fraudulent it is to motive. purpose, be referred to the better v. Mac [Garesehe 465; 1; 103 121 Donald, Hamilton, Mo. v. Mo. Warren v. Hardwicke Ritchie, 128 Mo. 311.]”
Viewing light the evidence herein in the of the settled in such rule cases, appellant we think that the has failed to establish the averment petition conveyance her the instruments of dated June executed, made, procured by “were defendants in
pursuance design, formed plan, purpose, common intent and existing (ap- deprive plaintiff herein, between all the defendants finding pellant) Therefore, of her title said real estate.” originally in favor of court, decree the trial decree, finding support without sufficient evidence to granting respondents and the trial learned court did not err appellant’s new trial of action. insists, Appellant indisputably II. however, the evidence respondent shows that was sold to Alice lot Trautner, respondent, Trautner, "William wife writ execution sale, sheriff’s under a issued brought ap- in the attachment suit pit- Trautner, said William F. for the mere pellant $63.96, price consideration which is claimed sum of tance inadequate to shock the conscience of a grossly to be so appellant grossly inadequate and unconscionable equity, that such court fraud; it is further- badge itself, is a consideration, in and of purported to deed, which urged by sheriff’s controversy more respondent Alice .to convey thie lot title to records of St. upon the deed appeared of record importing con- thereby lot, chain of to such County, and in the knowledge respondents actual, if notice and structive, not respondents alleged fraud Baker of the McCormick, Brown and con- inadequate unconscionable grossly Trautner, and of the lot at for such Alice paid by respondent sideration that the Wherefore, claims the execution sale. pur- and bona-fide are not innocent
McCormick, Brown and Baker with- property for a valuable consideration real chasers of said realty. infirmity in to said the title out notice of (cid:127) stated, just contention support of her claim and Appellant, in Guinan rulings court announced of this places upon the reliance 496; Van 173; Mangold Bacon, Mo. v. Donnell, v. 201 Mo. *14 Davidson, 414; ex rel. v. 286 Mo. and State Wright, v. Graafieland upon by ap cited relied S. W. 355. In none of the cases (at purchaser the execution appear it that the pellant, however, does gross inadequacy of equity for con sought in to set aside sale be property in sideration) conveyed the real had thereafter sold consequently, vendee; none of the cited controversy to a bona-fide pur a bona-fide vendee the rights and title of cases involved the sale. chaser at the execution banc, court, thus the rule or majority en announced
A of this 521: 237 Mo. think the Mangold Bacon, v. “We doctrine in equity Missouri, is that a court of and better doctrine conservative aggravated aid only-in case when no acting caution
t\D' equitable may hand, from other considerations is aside a at set ground grossly sole consideration in sheriff’s deed on the a so learned, adequate Judge to shock the conscience.” But the Lamm, majority opinion case, author of the of this Mangold court the opinion preface following significant- was cautious to his with the observation (l. 506) : foreword, say . “As it amiss that ive a is not c not dealing purchaser in this case with the a are vendee at a ta<r may warranty who wider And, sale hold a deed value.” for full speaking question gross the whether in and unconscionable adequacy consideration, itself, standing alone, in and of con ground equity stitutes sufficient under set aside sheriff’s deed execution, writ of majority the. author of opinion learned the “ 520) again say (l. c. : question might cautious to under arise many say different conditions. To avoid obiter, what we this time at strictly applicable must be taken as to a like the bar.” case one at words, majority In other banc, by opinion of this court, en Mangold case, in the were cautious to limit the extent restrict application of the doctrine therein announced to a wheréin case controversy title to property the real remained and stood of (at record opinion) purchaser time such at execu sale, tion conveyed (by and wherein such sold not been purchaser sale) at execution purchaser, to a vendee of such for a valuable consideration. case,
Tn the Van supra, Graafieland appeared while it purchaser at purported pretended the execution sale had convey the land therein in parties, yet third parties equitable third were made defendants action to set sale, aside the and, execution their answers filed in said parties such third disclaimed interest title under the deeds sale, purchaser purchaser at from the at the execution and the sale, by answer, conveyances execution his admitted that such were enabling purpose made without consideration and “for subsequent purchaser defendant to secure value the whatever equity property may worth;” defendant’s be and the court found, case, furthermore from all the evidence that such deeds (to parties) consideration, third were without made and were knowledge facts, purpose full all and for received with purchaser plaintiffs execution sale to defraud assisting Again, opinion writer property. their in the Van out say (l. 433) : closing Graafieland case was cautious c. we “Before say not in desire to that we have determined this ease that adequacy ground setting is of consideration alone aside sheriff’s great equity. be, sale If such a case can where the simply nominal and the debtor value the consideration consider purchaser, is the we it.” have not endeavored *15 any of this decision directed our attention The has not Mangold and or announced wherein rule doctrine court the bona-fide applied to a extended or Yan Graafieland cases has been and, upon sale; judicial purchaser at an execution or of the vendee applying decision of this court our we have found no research, own persons cases to extending announced the cited the doctrine the purchaser at original parties other the than immediate execution sale. bid inadequacy Corpus said: of the Juris, 766,
In 23 “The it destroy title of a invoked the at cannot the execution sale be him on notice.” ground per put it purchasee on the that se remote Mis- Supreme question presented to Court of the identical 650, 656, wherein Gardner, Miss. sissippi in Hart for decision v.. ad- to the subscribe doctrine that court announced: “We cannot vendee, a that, in attack this on title of remote vanced like destroy inadequacy at can be invoked of the bid execution sale In 35 per se, him notice.” ground this, put his that title on grantee “A value Juris, Corpus 94, the rule is stated: bona-fide by irregularities, judicial sale-is not affected purchaser from a at a notice, although as to fraud, which did not have mistakes, or he ’’ might set grantor the sale have been aside. us before case, we no evidence In the instant find record F. husband, Alice Trautner and her William the vendees of knowledge alleged fraud William actual procurement in the attachment Trautner and, brought by Hattie suit said, respondents no have we find evidence record we colluded, conspired with McCormick, and Baker connived or Brown fraudulently deprive wrongfully respondents controversy. appellant of the of land The evidence title lot respondents strongly McCormick, as vendees tends to show Trautner, paid $1200 respondents valuable consideration of they controversy; lot in caused title to the lot for the examined, of title be and a certificate be furnished they purchased company, in certificate of title reliance apparent good faith, for the valuable considera- property, the real warranty aforestated, receiving conveying deed the title there- tion aside, to. title of the McCormick cannot be an- set extending destroj^ed applying without the' doctrine nulled and Mangold cases, court and Yan Graafieland announced this sale; purchaser supra, of a an execution bona-fide vendees farther than this court manifested and declared its inten- which is cases. apply tion to doctrine announced those We are not Mangold disposed apply doctrine to extend and announced persons original than and Yan Graafieland cases to other *16 purchaser sale, ground in- immediate the execution where the persons setting destroying is for aside and the title of voked solely singly upon notice, bottomed constructive derived title, inadequacy made, of mere amount of chain of the bid original paid, by pur- and of the consideration and immediate application To chaser at the execution sale. extend the doc- Mangold Yan Graafieland trine announced cases to bona- purchaser judicial at execution fide vendees of sale would be grievously disturb, and, effect, utterly destroy, unsettle and integrity grounded security of real upon judicial estate titles regular upon sales, record, thereby or execution the face of the greater hardship to work a and more injury extensive generally, State, in this will accomplished by landowners than be re- lieving party seeming hardship an individual of a in a single, iso- lated case. opinion
We are of the that the evidence herein is insufficient to appellant’s petition establish averments of set forth fraud ground equitable sought for relief; appellant, and there- setting fore learned trial did not court aside the decree err. originally entered in granting favor and in the re- spondents trial of action. a new The order of the circuit court granting affirmed, trial a new must be cause remanded circuit It Lindsay court retrial. is so ordered. Ellison, CO., concur. foregoing
PER opinion by SeddoN, C., adopted CURIAM: The opinion judges court. All of concur. as the Company Louis Kienker et Power et al., v. Truck & Tractor al. (2d) Appellants. S. W. 1060. One, July 30, Division 1929. real notes the two deeds of afore- estate, said; for they purchasers, good innocent value and in were any purpose, faith, property, of said real and without fraudulent knowledge design against appellant, no intent or and had irregularities fraud transaction. answers of re- spondents Alice William F. Trautner Frank H. 'and general peti- Brown denials the averments of are conventional filed reply joint tion. The a conventional answers of respondents Baker. McCormick and judgment, finding The trial court entered a decree and the issues plaintiff ordering proceedings for the attach aforesaid, including ment suit writ execution therein, conveyance and the several instruments and deeds afore said, naught Timely for be set aside and held. motions a new trial were filed Baker Brown, the defendants upon granted consideration which motions the trial court said defend trial ants a new court, the trial own motion, its granted trial, McCormick a defendants new and ordered the cause to reinstated docket of court, be from which or granting plaintiff der a new trial appeal -was allowed to this court. The evidence herein that, tends to show November the respondent suit, William commenced a attach ment, against Hattie the Circuit Court of seeking St. County, to recover $166, the sum of claimed to be owing due and to Trautner from Hattie Elliott as a real estate com mission for services rendered Trautner in the pieces sale of two property, formerly real by appellant owned located city of St. Louis. Concurrently commencement said at suit, affidavit, tachment William F. Trautner therein filed his verified prescribed the form among statute, stating, attachment things, good other that the affiant “has to believe, reason and does