Fadler v. Gabbert

principle of law announced this court similar state facts.

It our quashed. follows that writ herein must be It is so ordered. Cooley Fitzsimmons, CC., concur. PER foregoing opinion CURIAM: The isC., by Westhues,

adopted opinion as the judges All the court. concur. Raymond Robert Fadler, Fadler, Fadler, Charlotte Herman J. Dorothy Voights, Jr., Fadler, William Dora Mi Michael, chael, Robert Fadler, Charles Michael, Fadler, D. Ruth Jackry Paul Fadler, Donald Fadler, Catherine Fad Fadler, ler, Emma Whipple, Whipple, Earl Luella Ruth Whipple, Henry Whipple, Whipple, Baker, Whipple, Wilbur Caroline Baker, Baker, Grace Baker, Baker, Jacob Prince Rosnell Dewey Myrtle alias Baker, Fadler Baker Yohe, Yoke, Leona Opal Hunt, Hunt, Hunt, Miller, Hunt, Helen Jack Frances Mary Biswell, Hunt, Leone Lee Doris Baker Hunt, Robert Mary Betty Gladys Jellison, Biswell, Jellison, Jo Harold Virginia Fadler, Jellison, Jellison, Jellison, Jeanette Ed Reynolds, Schaefer, Reynolds, Harriet Dora Caroline Fadler Fadler, Margaret Johann Fadler, Fred Fadler, Fadler, Vernon dwig Meyer, Doratche Meyer, Trina Fadler Fadler He Fadler, Mullmeyer, Heinrich Fadler Booke, Adele Fadler Von Hollen, Anna Katherine Heinrich Von Fadler, Herman Rehling, An Dora Von Hollen Hollen, Herman Von Hollen, George Henry Wehrkamp H. Gab Hustedt v. na Hustedt Duvall, Duvall, Hume B. Gabbert, F. Clare bert, Edith Marie Schumacher, Silvers, Adelheid B. Silvers, Elmer Esther Adelaide Fadler or Fadler calling herself Adelheid sometime George Henry Guardian, Knacke, Schumacher, Adelaide Vaughan, Monahan, E. P. Flora Monahan, Tracey, L.O. B. 121. (2d)W. S. Appellants. Two, September 1933. Division H. James Uarlcless and appellants. E. B. Silvers for A. N. Gossett, Henry respond- Harvey S. E. Harts lor Conrad ents. FITZSIMMONS, question C. The for decision in this case

whether the Circuit Court of County City Jackson rightly at Kansas overruled separate plaintiffs’ demurrers petition, amended filed two groups of judgment defendants. plain- Final in favor of tiffs entered, having stood on their demurrers and plead declined to further. From this defendants took two separate appeals which together. will be decided equity Plaintiffs sued to have avoided pro- for fraud their curement decrees, two quiet title, one a suit to the other an for partition, action and also to have annulled certain deeds passed were in the interval between the decrees. land affected litigation improved consists of lots 236 in block Mc- City, Missouri, ninety-nine Gee’s Addition fronting to Kansas feet Street, commencing forty-nine west point side Walnut at a and one-half feet south southwest corner of Fifteenth and petition alleged Walnut Streets. The that the land was of rea- $125,000. general specific. value sonable demurrers are therefore, necessary allegations Tt is set out with some detail the forty-four pages of which covers the abstract. summary A is as follows: Missouri, Faedler, Fadler, City, Feb- alias died at Kansas Dietrich owning ruary 17, 1917, described. He was unmarried and the land presented February there to no On was left descendants. the Probate Court of County Jackson at City Nansas admitted probate instrument, an January 27, 1916, dated purporting to be Fadler’s By will. last this purported instrument Fadler devise to Herman Voights J. property all of Fadler’s including the land ‘‘ described above trust for the use and. benefit of the heirs of said Dietrich life Fadler for with executory divers remainders or limita- tions, contingent otherwise, effect-upon take the death of living last surviving his grand-nephews grand-nieces living of at his, the time of Dietifich E. Fadler’s, death.” Robert Booth was named the executor of the will. n On February 19, 1919, George Fadler, A. nephew a Dietrich of Fadler, being predeceased brother, a a son of an action commenced County Independence of Jackson Circuit Court at to contest Fadler’s will. The defendants were E. Booth, Robert named executor, Voights, trustee, J. Herman "the Dietrich Fad- heirs of ler named in living large said will of whom there were then a num- ”ber, respective spouses, devisees, also the unknown donees and grantees May, of kin the next of heirs of Dietrich In Fadler. T922, jury a trial of will contest suit was resulted had and mistrial, agree. jury having pending, action was failed awaiting filing peti- trial of of second at amended time tion the instant case. thereto, Fadler, long prior

Dietrich at the time his death.and of buildings part .controversy, lived in land in and accord of ing employ one he had his as a servant petition, domestic Schumacher, who, deáth, office Adelhaid after filed Fadler’s. County paper writing purport of Jackson the Recorder of Deeds ing by her to estate in lieu to be an take one-half election Robert Schumacher for allowance to dower. also exhibited Adelheid $6,000 for will, Booth, and demand for E. executor of the her claim taking prior to his death. for care of Fadler services nurse and Floyd having E. of the estate appointed been administrator Jacobs executor, presented to Jacobs Booth, Adelheid place Schumacher housekeeper. $6,000 as nurse and for services an amended demand was, hearing Probate after a January 2J, demand On .the admin with the County, compromised settled and Court Jackson should whereby agreed that istrator, Jacobs, it was demand $5,250 as a demand classified compromised in the sum of should, claims all and abandon further class and she release second common-law "including claim as a pretended her against the estate states this transaction the Of wife and widow.” knowing not the that she well Schumacher "that said Adelheid pretended claim her Fadler abandoned Dietrich of said widow pro prosecuted presented, being exhibited widow, and such sum in said or demand her claim said cured allowance Jacobs, ad E. Floyd from money $5,250.00;” collected that she ministrator, thereby and was estopped and forever barred from claim ing to widow, be Fadler’s part that as a of the same transaction in accordance with compromise agreement, she executed a deed releasing any may and all possibly against claims she have had to or property Fadler, specifically relinquished “and released and the aforesaid lands to the heirs of said Dietrich if in Fadler he died testate to his devisees if he died testate.” petition

The proceeds amended then specify to the fraudulent acts procurement quiet peti- the decree the suit to title. The tion charges City that two Kansas lawyers, among de- who are named, fendants purpose injuring plaintiffs depriving them property, they having of their knowledge of the settlement agreement of Floyd Jacobs, Adelheid adminis- Schumacher with E. trator, delivery by quitclaim and of the execution her of deed for the Fadler, procured heirs or devisees of Dietrich induced (under Fadler), Adelheid Schumacher of Adelheid who was name aged, bring against, weak, mind, then infirm and suit of unsound a among others, January 23, which here suit was filed City, County, Missouri, Court of Jackson at Kansas Circuit suing being suit No. in which under the Adelheid Schumacher alleged name of Adelheid S. Fadler that she was the owner in fee simple of an in the real estate described undivided one-half interest above. petition defend- instant names of the case sets out the substantially Schumacher,

ants in all of whom the suit of Adelheid in the are in the instant case. The first named defendant here, and the Hunt, plaintiff Schumacher suit was Leona Baker imputed to charges, among acts other fraudulent quiet in the suit to attorneys, that the names of the defendants arranged purposely suit were subsequent partition and in title parties before the name so that names of numerous were stated (ex- Voights (trustee), Booth or Fadler defendant named or casually ob- person ecutor), that a appear parties “and so would as likely connect less would be serving proceedings in said suits For the and estate.” property Fadler’s with said Dietrich the same suit, was Voights title in the charged, Herman J. purpose, is like title, The suit but as an individual. not named trustee the issues our statement No. and sometimes statutory familiar as defendants designated, also named so form, Fadler, or interest claims whose Dietrich heirs the unknown portions unknown part owners were lands Dietrich kin of or next as heirs plaintiff and derived Schumacher Dietrich deceased, will of purported under Fadler, “as devisees County, Jackson Probate Court probate Fadler, admitted to al- Missouri, No. in suit 1918.” The February 20, Missouri and nonresidents were leged that all defendants claimed have plain- some interest the real estate adverse to tiff, prayed the court to ascertain the same and enter decree accordingly. charges attorney-defendants further obtained

an publication order of in suit No. and caused notice 1o published Daily weeks, although in the Record once week for four a newspaper that printed daily City except was and in Kansas issued Sunday. No upon any writ of summons was ever of notice served except given any defendant, the publication ever and none of tlm here, quiet title, had including plaintiffs the suit to any bringing October pendency information of or of suit until 16, attorney-de- charges 1928. The amended also that “wrongfully fraudulently procured fendants and caused lie and 25, County April on a 1925, entered the Circuit Court of Jackson adjudge said purporting or decree and determine that S. of an undivided Adelheid Fadler was owner and entitled to 1925, lands,” May simple one-half interest and on fee said Recorder of Deeds caused to for record in the officeof the be filed peti- County, copy The amended Jackson a certified of the decree. charges notwithstanding of the defendants tion several also “that minors, under wrongful were in said fraudulent suit and decree and for age years; guardian appointed litem was twenty-one no ad ages minor defend- any The of these them of them.” names and or here) (plaintiffs title twenty-one in in the suit to ants, number given. are .that, charges after the also' The under review amended 1925, attorneys May 25, induced decree, entry purported of the wives, respective execute to their (Schumacher) to S. Fadler Adelheid interest warranty conveying undivided one-fourth a an deed any person grantees, or other controversy; neither of lands in that attorneys used deed; and gave any consideration carry out their as of convenience wives a matter names of their wrongful purposes. and fraudulent June On or about petition are: allegations of the Further filed Schumacher Schumacher, of Adelheid Margaret sister setting out County an information of Jackson Probate Court a small insane, the owner and was was that Adelheid Schumacher money including $3,500, of about value property amount likely would be she estate, property real piece a small service personal After appointed. guardian were squander unless found 1926, was Schumacher, on June she Adelheid of notice managing her incapable jury insane of a to be by the verdict under guardian appointed Henry Knacke affairs. business ward, estate inventory he filed an $1,000, bond of Bonds, Kansas, Liberty City in Kansas showing real estate mortgage cash, appraised $8,892.50. note and all inventory at did not property controversy. disclose interest here in May 28, On 1928, Knacke,- guardian Schumacher, as of Adelheid insane, reported probate to the one- court she had an undivided fourth interest the Walnut Street real estate involved here prayed for an property order to sell at private sale for cash. Of this application petition alleges for an order of sale the amended filing attorney- instigated of was procured pursuance defendants “in wrongful, their said malicious and fraud purpose al ent depriving petitioners -these and the heirs bene estate, they may be, ficiaries of the whosoever Fadler of said Dietrich of their appropriate procure interest said land and to same for their own benefit for the benefit of members of their ’’ families. through Knacke, guardian, also states went having the form of lots in undivided one-fourth interest appraised $3,500, George B. selling suit at the interest to one Tracey sum, filing having approved report for that and of sale a charges executing Tracey. petition and of a to further The deed Tracey purchase himself; that did not that allowed the land for he his name to be as matter in the used of convenience furtherance of purpose carry wrongful deprive “petitioners, out the to scheme others, and heirs or beneficiaries be” of estate of as case Fadler; Tracey any moneys guardian, pay Knacke, that did not $3,500 by but at- paid that consideration of was two entire torneys. 1 petition

The amended that the of the date recites existence deed May 25, 1925, convey by purported Schumacher Adelheid in attorneys to the wives interest of the an undivided one-fourth May kept land record until was secret and the same was not filed for 1928, years days (cid:127)1. copy of the three and three after certified decree of April 1, 1925, May filed in the recorder of deeds’ was petition separately precision and with office. The then recited by sundry result of execution of six deeds and to defendants. As a which Mrs. conveyances one-fourth interest these color of title to the conveyed defendant-attorneys’ and also the Schumacher to the wives Tracey, guardian which Mrs. Schumacher’s sold to one-fourth interest words, half interest which in the suit in the entire the decree other Schumacher, was vested one-sixth title in Mrs. vested Gabbert, man, Duvall, F. also George a straw one-sixth Clare H. daughter attorneys- married of one party a straw and the whom, petition, in the defendant, person, in a unnamed and one-sixth attorneys-defendant, purchase a sixth induced to charges, two charges attorneys. that paid to the $5,000 for interest attorneys-de- by procured' was all these deeds execution of deprive plain- their fraudulent intent furtherance fendant in' tiffs of land, vesting their interest in per- and in three portions sons in undivided interest which the decree the one-half in suit brought by No. Mrs. was vested in Schumacher about attorneys might these bring partition in order that suit of all the land. This suit which sometimes we will call cause No. attorneys County Kan- instituted in the Jackson Circuit Court-at City July, George Gabbert, sas here, H. a defendant 1928. plaintiff partition action, Duvall, F. and Clare the unnamed purchaser, others, innocent also the here sued Fadler, peti- unknown heirs or devisees of were the defendants.- The partition tion suit recited the one-sixth interests of undivided Gabbert, purchaser, alleged plain- Mrs. Duvall and the innocent half, charged tiffs here and the unknown defendants owned other bind, par- susceptible partition prayed that the land was not alleged defendants, except sale, tition that the Mrs. Duvall purchaser, Mrs. Duvall innocent were nonresidents of Missouri. voluntary purchaser appearance the innocent entered their answer,'admitting allegations partition all joining prayer An publication thereof. for all de- order entering appearance fendants other than the their two was obtained published four Daily the same was Record a week for once days; guardian appointed weeks on no ad litem was other no therein, partition suit for of the infant defendants named being quiet title the same infant mentioned in the suit to and who are in the instant suit. here further attorney charges 29, 1928, Gabbert and his on October defendant (one here) Duvall had entered of the defendants and defendant to find that purporting cause No. a decree said person.each owned an third Gabbert and Duvall and the unnamed defendants, part of the land and that the other undivided one-sixth living, including unknown, plaintiffs the in this case then known and find or deter- one-half, purporting not to owned the other the decree partition suit in the respective interests of the defendants mine the interest. The holder of sixth other than Duvall and. the other the ease charges plaintiffs in the instant that none of the petition further until partition suit notice, knowledge information of the any or had 16, T928. October alleges having the herein first also that petition

The 16, 1928, of the existence of the to about October suits learned on or attorneys plaintiffs in partition, for the the instant quiet and for title they served a motion set and, October prepared case judgment purported decree review of the or petition in and aside asking leave to answer in said 288305 and No. partition suit aside the cross-petition to set answer said to- include and cause No. 210647 in said cause decree judgment' or entry of said purported among facts the by reason of thereof procurement for fraud the tip others set petition in the amended under examination. time, charges and further at the the motion that attorneys re- for review were of the served one defendant quested him attorneys allow agreed and the their turn time filed, to consider the same and he before it should be agreed or change the title that in make no the meantime he would attor- status proceedings plaintiffs’ of the until had so informed he the charges, neys. Notwithstanding agreement, as the this ignorance through attorneys two that pretending defendant here appointed litem guardians had a<l inadvertanee omitted to have pur- the aside therein, court to set infant defendants asked 288305; No. ported cause entry partition or decree of the thereupon one accordingly, an made court order voluntarily dismissed attorneys paid the costs suit and in said action. procurement

Other acts judgments of the to which fraud are imputed and not heretofore stated in summary peti our of the attorneys-defendant tion are: charge at all times knew and were able devisees, with notice that all might be, the heirs and as the ease of Dietrich Fadler were repre non-residents of Missouri and were only Jacobs, sented the affairs of the Fadler estate admin istrator, attorneys plaintiff and the several for the and for the de pending fendants in will contest suit the Circuit Court Independence; Floyd County attorneys that these E. Jackson at administrator, Jacobs, readily all times were at well known and City, attorneys to be about Kansas but that found the accused inquiry purposely from communication omitted refrained of or having with any persons lands, with these to do said estate and attorneys, alleged same, Fadler and suit to contest will of administrator, executor, inquiry from or communica or trustee any parties will from com to the contest suit and tion with quiet pendencj fact of suits to title munication of the two persons. parties purposely or partition They and in brought either of actions include as defendant omitted to administrator, only rep Floyd Jacobs, resident Missouri E. property. Dietrich Fadler estate and The attor resentative of the buildings upon occupied land were neys-defendant knew Yoights, parties consent of by tenants, with the the other under Schumacher, and not under Adelheid will contest her, bring anyone claiming before after-the under nor neither she partition any and in ever claimed title ing suits land; attorneys, their but the two possession the rents or convenience, persons purposely agents of refrained confederates, and any any giving notice of of such claims any claim or making from entry the of the land. At time of the occupants or tenants of of Jackson Court the publication practice the Circuit orders of County and the law published was that the in each same should be daily secular issue of newspaper in which same was ordered published, to be wrongful in purpose but intent stated and petition probability and for the elimination or likelihood acquiring in the instant suit actual notice of publication No. attorneys the accused order of caused the published only be intent once a week for four weeks. With same in pendens notice either not file the recorder’s office lis did partition. quiet the suit to title or for and defendants are Gabbert petition The named the amended wives, wife, attorneys husband, Mrs. Duvall and the two and their B. Schumacher, Knacke, guardian, George Henry also Adelheid during E. P. Tracey Vaughan. and shows that record pendency resigned below, Knacke action the court guardian Schumacher, and curator of Adelheid that Herman Schu- with- appointed place Knacke, was macher and that Schumacher filed, an demurrer. drew answer which Knacke had instead filed and appeal pending prior While the and to the sub- has been this court suggested Adelheid appeal mission of the there was the death of Schumacher, guardian, Schumacher, discharge of Herman her and the appointment of her estate as administrator Schumacher ac- twenty-two Schumacher. The cause names of heirs of Adelheid sixty- cordingly proceed. There are be revived and was ordered to Dietrich nephews and nieces of three of whom are some deceased, grandnepliews grandnieces and others Fadler, are others They are de- great-grandnieces. great-grandnephews again are half-brothers and two sister scendants of one brother one prays that amended Fadler, are dead. all four of whom title suit to judgments pretended and decrees void; that the instruments null and partition suit be declared guardian’s quitclaims conveyance and the or purporting to be deeds and that and void null petition be declared deed mentioned land be in the the same plaintiffs as title of upon the the clouds persons all that the controversy be removed interest, right estate, adjudged to have no be claiming them under claim. Schumacher, suggestion here of death of Adelheid In view of filed to the amended demurrer separate guardian Schumacher, curator, will her in that of her name Schumacher, her administrator'and Herman as that treated join separate demurrer. other defendants heirs. The her allege not amended does state Both demurrers misjoinder parties plaintiff. is a there action and cause of misjoinder “That thus: states demurrer The Schumacher writing re- paper therein petition, of said allegations deceased, Fadler, Dietrich will of last to be the purporting ferred probated such, provides and property that said shall be held in until grand-nephews trust the death of grand-nieces all and of said Dietrich may living Fadler death, who be at time his of when said real estate his, should thereunder vest in legal Dietrich Fadler’s heirs. The further states that said Dietrich Fadler died on February 17th, 1918. degree further states the of kin- ship of the plaintiffs various extending Dietrich Fadler to the de- gree great-grand-nephews of great-grand-nieces, and and shows that Fadler, following at the time of death of Dietrich and said. ’’ only following persons Fadler, were the heirs Dietrich to-wit: of twenty-seven plaintiffs There follow the names of and the further misjoinder parties recital that there is therefore of in that the other kinsmen, cause, thirty-six in the in number and named demurrer, not question could take of property under the pleaded petition. will as By may Misjoinder. way observation,

I. preliminary of we say parties parties that a few and plaintiff defect of means too hence synonymous misjoinder parties is not with of which means an excess Cyc. grounds We complaint of of here. parties, one of the 294.] [31 makes also that Section Mo. Statutes Annotated note demurrer, make terms parties of cause for but does not defect However, misjoinder parties plaintiff is of misjoinder a cause. ground for in such case the for demurrer the reason (Mo. App.), 83 of v. Hicks not state a cause action. does [Akins Ed.) (2 75; Pleadings S. to Actions W. Barbour 459.] appear to support demurrer of of second writers the briefs question misjoinder view when withdrew had this have only in con parties the matter they would discuss stated that and en minor were certain question whether with the nection allegations petition. But under relief under titled to plaintiff ex parties must be misjoinder of pleadings and briefs amined. that, appears of the at time petition it face Upon the law, Fadler, final determination if at the his heirs at of Dietrich death he, intestate, con- suit, died found be will contest should nieces, grand- grandnephews and and ten nephews and fifteen sisted nephews Dietrich Fadler one Subsequent the death nieces. Thus, according to defend- children. two leaving a widow died nieces, ants, nephews were fourteen at law of Dietrich heirs deceased widow a grandnieces and the grandnephews twelve Schu- twenty-seven mentioned in heirs making up nephew, grandnephews and plaintiffs were The other macher demurrer. whose great-grandnieces great-grandnephews grandnieces list living were included were grandparents parents or We Dietrich Fadler. lieirs, not heirs who therefore were (cid:127) n (cid:127) moment. question for the defer examination of this great-grandnepliews contend that the

Defendants next sus will, if it should great-grandnieces not take under the could land pleaded devised the tained, will as reason that grand and grandnephews .question to a until all of Fadler’s trustee deceased, when nieces, living death, at the and" that time of his are died, grandnieces have the grandnephews the last of said and will convey property shall Fadler’s heirs. trastee to' Dietrich 307, by (Sec. contend, is defined statute word “heirs” defendants of 1929) at the time Mo. take Stat. Ann. to mean those who' would Therefore, great-grandnepliews his who death. those are by defend great-grandnieces being limited and in the sense not heirs argument is fallacy ants, will. this cannot inherit under The' “heirs,”- as meaning word used limit the of the will, to the the word in one of the sections of definition distributions, statutory applicable law of to the estates descents and word, persons who die intestate. The word “heirs” like other according phrase-or clause, occurring will, in a is to be construed gathered intention the testator as intention 338, from W. Koppelman, the whole will. v. 94 Mo. 7 S. [Reinders “As to the intention of the testator in the use of the word 288.] will, simply ‘heirs’ in his court such heirs of held that he meant wife) (his death, the said Anna be in at as should existence her and not such of her heirs as in existence at were the time of the death testator, at time will.” And or he wrote his this court governing held that construction to be correct under well rules known wills. construction of meaning We not do intend to construe of the- “heirs” as word Fadler, will used' since that instrument is not before us. We limit ourselves pleaded to the statement that under that will as petition great-grandnephews first amended great-grandnieces and here, who are will precluded taking not be from as testa- mentary respective heirs their shares of Fadler’s estate at the death grandnephews grandneices by last of the and reason of the they, great-grandnephews fact that great-grandnieces, not were statutory heirs at the time of Fadler’s death. equity misjoinder This is a suit which parties plain judged by tiff is not to- be applicable more strict rales to an Hicks, action at law. v. 109 App. 95, Mo. 83 S. W. [Akins 75.] Equity (8 Adams’ Ed.), Doctrine of section page thus states law, disputed the distinction: a contested; “At is issue alone disputants by decision; immediate alone are' bound proper parties alone are the equity, to the action. In is decree asked, and not is requisite only; decision therefore all.

865 court, may be affected persons be before the whose interest should complete necessary proposed decree, whose concurrence is ' ” arrangement. Pomeroy’s Equitable (4 Ed.), sections Jurisprudence scope of rules page seq., the broad points et thus out equity governing joinder: proper fixed, arbitrary, rigid, “The procedure common-law rules of are In technical, equity flexible. while suit are natural and those greater respect parties no and to features the contrast than in judgments. concerning parties the common law The doctrine of liabilities, actions, the form joint rights their or several right liability, respective kinds of these based resting upon verbal crowning technicality system, are the of ’the premises up premises nothing, mean and built from these equi . processes logic. most accurate verbal . . of mere judgments wholly un respect parties table doctrines with are law, different their prevailed like those which at the common adapt operation, in their conceptions, practical fundamental in their rights and ability circumstances, upon to and in their results litigants. governing equity in admin dirties of The motive relief, adjust grant and to system istration of its remedial is to full really parties, which rights suit the of all the one and duties subject-matter that suit. grow out of or are with the connected in persons concerning parties is, that all principle Its fundamental recovery, might however against be a whose favor or whom there interested, although indirectly, partial, persons who are so and also all rights or granted, their subject-matter relief that and the decree, although re might by no .substantial duties be affected against them, par be made shall covery for or can be obtained either ordinarily im suit; a matter of substantial it is not ties to the defendants, as al they joined plaintiffs or portance whether are regxilated certain extent question procedure is to a though this rather than convenience upon considerations of rules based see theory.” effect requirements of To same essential Gartside, Papin, 11 669; Ulrici v. S. W. 113 Mo. v. Gartside 42; 308. C. J. Mo. opinion plaintiffs are of broad rules we Under these subject matter of res which is the sufficient interest have a amended joined in the first parties, properly make them this action begun February 1919. It was will action petition. contest October equity was instituted on this suit pending still when was 1929. petition filed on October 26, 1928, -was when the amended question fully contemplates fairly undetermined petition This pass is to property is to his heirs or to descend Facller’s whether nephew One has died' since Fadler will. under the terms is will contest ad- before passed possible on. It auite thereby may nephews the other and nieces die and leave judicated of a final group persons a new’ take in the event deter- who would remedy intestacy. effective petition mination of seeks may will complete AA’hatever be the outcome of the contest suit and whosoever die the meantime. charge misjoinder parties

Let us also examine th'e of a possible property w’ant of a interest of some of them in affected in light allegations concerning of the amended Schumacher, quiet partition. the action in suit title and Adelheid quiet title, alleged the suit to that all the plaintiff her here) (plaintiffs therein claimed have some interest procured publication adverse to her. The order land her attorneys allegations. ma.de like The decree in that found that case ^Adelheid a half peti Schumacher had interest. While the amended tion does not state in whom the decree undertook to vest other half, may safely Ave infer decree found that the defendants here) (plaintiffs owned the second half. We draiv this inference from partition the fact that the alleged plaintiffs suit land, here owned an undivided one-half of the and that the inter locutory find, partition purporting decree so found “without adjudge, then, respective or determine the interests.” Hot can de argue equity suit, fendants noAVbe heard to in this on an issue misjoinder by them, legal questions respective raised interests testamentary and non-interests as heirs at law or as beneficiaries when the defendants here repre and those whom pleaded procured finding, sent decrees in the actions’which this annual, suit seeks to that all here oivned a half interest? all, question upon After the ultimate appeals these concerns the ownership of an undivided one-half interest in the land affected. And which, title, that is the half under the decree Schumacher, AAdiich,by vested in Adelheid conveyance her conveyance by guardian by a her first subsequent Knacke and con veyances finally was transferred to defendants Gabbert Glare F. purchaser. Duvall and the innocent For the reasons stated avp rule misjoinder that there is not parties a plaintiff. cause Statement action. Tn IT. support charge of the petition action, does

that the amended not state a cause of 1929, 1081 saA that under Sections to 1087. Revised plain Statutes petition have filed a years tiffs for revieAv could within three from recording judgment, quiet the date of the in the suit to title. haA'ing failed to Plaintiffs avail themselves of this remedy defendants judgment insist that became absolute. publication constructively plaintiffs As here were served bv action, quiet they appear title and as did not suit to and defend litigants who, the class proper come -within cases,

867 years recording judgment, avail within three after the 1081-1087, 1929. themselves of the benefits Revised Statutes of Sections plaintiffs But are defendants are in error their conclusion that (one absolutely by 1083, barred Section Mo. Statutes Annotated that “if such upon they rely), provides which which sections final years for such review be not filed within three after judgment rendered, is That section the same shall stand absolute.” deprive remedy does not a equity power a court of of its to afford practiced though for fraud procurement judgment, even remedy that sought years is not within the rendition of three after judgment. 1083, "With the Revised fact mind that Section 1929, is, verbatim, 3686, Statutes the same as Section Revised Stat quote expressed utes from support we last of the views Leyh, v. Irvine Mo. 14 S. l. 716: W. c. Leyh,

“We defendant, here notice by the contention made this suit by is barred Section 3686 of 1879. of the Revised Statutes That section preceding succeeding provide and the sections a review by publication only, where the is defendant notified appear does not filed to the action. must be for review years within judgment, and, three after final if not filed within that time, judgment stands To absolute. obtain such review it is not necessary to procuring judgment, show fraud in it will be but sufficient to show that petition, upon judgment matter, procured, asking party untrue in some material good the review plaintiffs has had defense. The here not do ask a They review under the statute. seek to set aside the attachment judgment by procured equity because fraud. in- Courts of have an power judgments by fraud, herent to set aside obtained powbr away providing is not taken the statute for a review in the cases mentioned. statute, before This suit is not founded on bar.” foregoing case, hence Section constitutes no In the years commenced their action nine after the rendition of judgment. case, plaintiffs Tn years the instant filed suit three 210,647 judgment, in and six months after cause No. title. equitable III. foregoing For reasons stated in para graph, sustained, urge the demurrer should not be as defendants be, years should because within three after did cor not a writ of error am nobis. resort to This writ would have appropriate the facts been more the amended stated proceeding than a under Sections 1081-1087. For now it is the law contemplated these a motion statutes “must based .one patent irregularity which is record,” pur an while error c-oramnobis “is to pose apparent of writ of make to the court the record some error of by dehors fact which appear evidence did not which was unknown to the of record and court.” ex rel. [State 868 v. Riley, 667, 219 647, Potter Mo. 118 W. S. l. c. A motion 651.]

in the nature a writ might of of error nobis peculiar coram have been ly suitable to those minor infancy here whose not was brought to the attention of the guardians court and for whom ad Gott, litem were appointed 210,647. not in No. cause v. [Powell object Mo. But the of there motion was the to correct an error 459.] upon based, of fact proceedings which certain in law been the had being error of assumption fact the that a minor was of defendant fact, age. full charged petition, Here as the the amended quiet in the suits partition, minority title and certain for the of suggested, alleged merely badges defendants was is not one may add, of fraud. authorities, We without citation of the redress wrongs peculiarly cognizance of to infants is within of the equity. courts of For these we no conten reasons find merit tion that should sustained demurrer have been because did not sue writ of error out a coram nobis.

TY. plaintiffs’ peti Defendant’s next contend that equitable fraud tion does for not state a cause action for relief procurement judgment Schumacher suit to title, 210,647. v. cause is thus No. rule stated Irvine settled Leyh, 14 W. l. 717: Mo. S. c. judgment a vacated fraud . “The fraud which must for will.be procuring judgment. If vitiated

ulent act in the cause of action is defense, fraud, action by is a and it must be asserted the, interposition pre is rendered, its judgment is unless in which cited.) (Cases by adversary. The acts of an vented the fraud fraud, equity will, or annul aside which a court account set same, decree, by parties, a court judgment rendered between the or col or competent to frauds extrinsic jurisdiction, have relation court, to a first and not tried fraud lateral to the matter v. States was founded. matter on which the decree [United strongly stated principle so Throckmorton, thus 98 U. S. The. 61.] ground an party had proceeds cases cited which interpose the defense appear and opportunity to rendered.” complained distinction, classification, these rules proper under But the particular charged case sometimes proved in a acts of fraud vitiates in one fraud sense cases, -the act of In some is difficult. goes procurement, sense in another of action cause court, found This so complaint made. which judgment of 745. S. W. 635, County. 150 Mo. Lafayette Wonderly v. case of Throckmorton, 98 U. S. v. United States leading case of The- frauds clearly the character of supra, states Leyh, v. in Irvine cited judgment. pointing After out procurement go to the which motion law affords defeated party of relief modes 869 for a trial, new error, writ appeal óf and bill for review, in accord with the rule framed for repose society, the United States Su preme (98 Court 65): said U. S. l. c. “But there is an exception admitted general to this rule cases where, by reason of something done by the party suit, successful ato there was in adversary fact no trial or decision of the issue in the ease. Where the party unsuccessful prevented has been from exhibit- ing fully ease, by his deception or practiced fraud by himon his opponent, by keeping away him court, from promise false of a compromise; or where the defendant knowledge never had suit, being kept ignorance by plaintiff; the acts of the or an where attorney fraudulently or authority without represent assumes to party defeat; and connives at his or attorney regularly where the employed corruptly sells out his side,— client’s interest to the other these, and similar cases which show that there has never been a real hearing contest case, trial or are reasons for which a new judg*- sustained to set aside and annul the former decree, ment or open hearing. and case a new and a fair (Cases cited.) cases, many In all these have been others which examined, relief has been granted, ground that, by on the fraud some practiced directly upon party seeking judgment against relief decree, party prevented or has presenting been from all of his hand, case to the On equally court. the other the doctrine is well judgment settled that the court will Avas not set aside a because it instrument, evidence, perjured founded on a fraudulent or for judg- actually presented matter which was considered epitomize ment do not the facts of this case but it is assailed.” We example charge not into the a clear of a of fraud did enter judgment. procurement of the procurement

On the a clear case of other hand fraud judgment Quinlivin, upon v. 57 425. That is Ward Mo. was a suit judgment. York trial refused to allow a New The Missouri court foreign procurement proof to offer of fraud in the defendant remand- Supreme judgment Court judgment reversed the and the proof. grounds of to let in the with directions ed the cause judgment procurement to the this court held went fraud which liquor drunk. until he became with plied defendant plaintiff were defendant condition, plaintiff induced was in this While defendant New York him in a plaintiff sued obligation upon Avhich sign an the action. to defend AA'entto court with counsel court. Defendant defend- to cheat and defraud attorneys, with a view Plaintiff and his they action, intended a cause not have did ant stated might go home. Defendant defendant suit, and that to dismiss had moved departed. After he these assurances relied York in the New against defendant judgment took Missouri, plaintiff Missouri. upon and sued court twilight In the zone between the clear cases of v. United States Throckmorton, supra, Quinlivin, supra, many cases, Ward v. are easy less of decision infinity reason of the of fraud. These eases quite justly come Judge within the comments of Lamm in Howard v. Scott, Mo. seq., S. W. l. c. 1165 et in which he said: “What fraud? daring judge No statute no has been so ’’ as to define restating unwise hard fast rules. After the quoted rule above Irvine Leyh, supra, from v. he com made this ment: no point “Nevertheless court has undertaken to define out and particular judgment, any frauds which will vitiate a more than it has generally, many to define fraud cases attest dili the acute gence in classifying of courts facts as in extrinsic and collateral justice order heavy reproach to save the administration of from the sounding enforcing advantage pro in an unconscionable in fraud curing judgment.” a Marley

In Mfg. Co., v. 289 Mo. 232 S. W. 221, Norman’s Land and 704, gave in plaintiff this court full relief to relied who fraud procurement judgment. a-of One Norman instituted three suits having general object acquire In the same title to certain land. attorneys cooperate. The each he had different did not case who having begun about abandoned, first suit been the two were others in In In personal time. one was the other same there service. by had, judgment complained which of was there was service publication. fact Of this of service this observed: “The mode court 3, served, ivas well Marley personally that was sued in No. Case county scrutinizing him counsel from prevent calculated to and his might be by which his land papers publication suit for another court fraud, marks of noted this of the ear affected.” And one to advertise the 2, directed his counsel that, was in Suit No. Norman printed paper in a of limited circulation publication notice of county seat. from the distance published in a small town some 717 715, l. c. 200, 102 Mo. 14 S. W. Leyh, In of Irvine v. case which deduced in the cases from he (1890), Black, J., that observed first suit quoted the defendant general which we have rule interposed fraud might have actual notice appeared or had rule expressed opinion that the he this For reason as a defense. case a its strictness to applied in all not cited could be eases only, newspaper brought notice been where had the defendant no real consequence a had and as notice had no actual carrying vote did not receive view This defend. opportunity what no distinction opinion judges expressed and two of the personal there is cases in those between made ever should Scott, In Howard v. service. constructive which there is and those in expressed J., Lamm, (1910), 1158, l. c. W. 685, 125 S. 225 Mo. supra, J., Black, views of strong concurrence personal the decision after years nine fact that to the he called attention Leyh, Irvine v. supra, Valliant, J., iu Wonderly v. Lafavette Coun ty, 150 635, 650, Mo. c. l. S. W. 45 L. R. A. 73 Am. St. Rep. 474, gave any dissent, without the dictum Black, J., as the reason for the laid rule down. The in Wonderly Lafay “reason” v. County, ette supra, J., to which Scott, Howard v. supra, Lamm, (150 650): referred is as follows Mo. l. c.

“The reason of doctrine equity will not entertain a bill to judgment set merely aside on the averment that the cause of action on which it is is fraud, founded with is party tainted that the had an opportunity interpose suit in which the defense judgment Leyh, was rendered. v. 102 Mo. l. 207. c. j [Irvine when prevented by plaintiff But the defendant the fraud of the making defense, from as in when this case the defense rests peculiar knowledge it from de plaintiff and he conceals fendant, it; the fraud attaches to the itself and vitiates procuring judgment.” is a fraud judges Ir- appear dissenting

It would that while therefore right Leyh, supra, saying v. were that no distinction should vine cases, personal publication be made between service service cases and J., yet opinion his was Black, in the sense in which correct Lafayette interpreted County have been case. Defendants who personally cry who have have to than served less excuse fraud those 1081-1087, Re- statutes, Sections no actual notice. review had case, recognize 1929, in this vised Statutes which we have examined by pub- who have served by allowing to been the fact But reopen the case. years judgment in which to lication after three notice with the defendant judgment plaintiff if shall serve after cuts 1082 down judgment, Section copy with suit and year. period to of review one amend that the supporting contentions Other cases Bacon, 237 Mangold Mo. v. are: ed states a cause of action Co., Investment 650; v. Estate Davidson Real 496, S. W. (Mo. 1, Transit Co. 1143; Gurley v. Louis 125 S. W. St. 226 Mo. 148 W. Dorrance, 625, 242 Mo. S. 895; v. 259 S. W. Dorrance App.), equity want of give which instances 94. heretofore cited Cases not Mo. Betts, 264 v. Shemwell judgments fraud are: to for set aside 409; v.Wolf 192 W. 390; Chilton, Gallagher W. v. S. 268, 174 S. Brooks, 129; Rail O’Shea, Wabash 337; v. 84 Mo. Payne 177 W. S. Mirrielees, 126, 81 S. W. 437. 182 Mo. v. road Co. from the cases gather them all as applicable we rules Under by the cases, cited some other many herein, from

mentioned not, opinion that the parties are others we Schu- Adelheid allegations Take the action. states cause to widow wife and as common-law on record a claim placed macher services estate; for a demand presented that later she one-lialf her paid sum demand her compromised nurse; she as deed, and, part general compromise, as of a executed a aban she doning releasing a course of her claim as a widow. That was v. Howard which, of this court in paraphrasing conduct the words sleep Scott, 685, plaintiffs to 1158, 225 Mo. 125 S. W. “lulled the question They on the a suit of their title. had no call look out for subject bj^ Schumacher, the same thenceforward.” matter Adelheid already This conduct too akin the devices used some Manufacturing quoted Marley cited and v. case of Norman’s Land & Co., 289 221, Mo. 704. this court said S. W. Of those devices (289 229) Mo. l. c. : responsible 3,

“Norman directed for Suit No. because he had No. counsel, Kelso,, his Suit to reinstitute the suit dismissed vigilance 1. If him Marley, this act and tricked tended abate the Marley, only upon out of a defense Suit No. it was not a fraud 2. but judgment the court rendered a in Case No. who default filing This procuring personal of a case and therein was well service Marley being pend- calculated to mislead as to there another action ing, and, said, agent and this act What his was the of Norman. Marley, did, equity, did, he if misled attorney law and the act tricked him out of a in Case No. then such en- defense fraud sought tered into herein to be set aside.” , emphasize as fraud All Missouri eases and all other cases an act of entering judgment any procurement into the of a conduct tends pendency adversary him to the to trick an out a defense'or to blind case, petition pleads the of an In instant the amended action. her and of course of of Adelheid Schumacher mentioned conduct attorneys, designed prevent appearing as a trick from charges defending’ against title. These the suit to defendants, grounds who special are made of demurrer As legal right. within her Schumacher acted contend Adelheid charges pleaded impute fraud nevertheless. charge action of the

Then there is the of fraud ascribed to the advertising publica of the order of attorneys-defendant the notice newspaper only daily in a quiet once a week tion the suit to title legality publication as City. plead the of this in Kansas Defendants Avith We do not concern ourselves separate cause of demurrer. innuendo fraud sufficiency publication, of but AAriththe of the the Marley petition upon In v. Norman’s places AAdiichthe it. the case of opinion placed Mfg. Co., that this court in it.s supra, & Ave Land noted publication in a badge of the insertion of an order upon of fraud in a some dis printed small toAvn neAA^spaperof limited circulation beyond doubt publication Avas county Yet that tance from the seat. granted reasoning readily be legally By the same sufficient. many of fixing in which the names laAAr the order that there is no caption petition and order arranged in the of a should be defendants the names the placement of of publication. pleaded of But defendants in the petition was, quiet suit to title like the scant publication notice, of a device intended prevent to from obtaining knowledge pendency of the of the action.

Then there is charge the more petition serious of attorneys-defendant, acting respective plaintiffs for the in the suits quiet to title and partition, guardians ap- did ad litem not have pointed disregard for the minor ¥e defendants in those cases. special predicated demurrer proceeding that this contention stop lawful. Neither we point by plain- do to made consider the tiffs petition that the separate amended states a of action cause favor ground of the litem guardians infant on the ad for them appointed. charge were not of We heed alone the that, perpetration against plaintiffs of and fraud upon the procurement judgment court Nos. of entries suits rendering 210647 and and .less preventing further and concerned, attorneys- likely actual notice in person fact to non- informing defendant of the failed and refrained from the court causes); age (defendants and of certain of the those of procured judgments appointment to entered without guardians acts, by tricks ad litem. the standard Measured devices, to fraud defense of an action amount intended avert a charge major judgment, particular is the this procurement aof non-age of certain specification If petition. the amended appointment suggested the resultant the defendants had been all timely attention guardians brought to the litem would have ad "We actions. defendants, minors, the two pendency adults necessary to make than of the further phase this case pursued have of action. holding states cause that the our reasons for clear separately specially by demurrers Y. their Defendants oc concerning matters allegations of the amended all assail title. quiet judgment in the curring rendition of the after support degree tend to no allegations in these They insist that allega judgment. These of that procurement charge fraud in the Schumacher, of by Adelheid a deed the execution tions relate to her acts of the insanity proceedings, of the grantees, her deeds others Gabbert vesting in defendant ultimate guardian in the suit to Adelheid lands decreed interest half aside have set only seeks petition not The amended quiet title. an have prays to title, it also but in the suit judgment cloud removed the to have pleaded deeds the several nulled proceedings by conveyances by the plaintiff’s title created grounds demurrer. special in these merit no partition.' We see Cooley affirmed. appearing, error reversible No CC., Westimes, concur. C., is Fitzsimmons, opinion foregoing PER CURIAM: All concur. judges of the court. opinion adopted

Case Details

Case Name: Fadler v. Gabbert

Court Name: Supreme Court of Missouri

Date Published: Sep 4, 1933

Citation: 63 S.W.2d 121

Court Abbreviation: Mo.