169 Mo. 51 | Mo. | 1902
— This is a proceeding in equity instituted September 26,- 1898, to avoid, set aside, and annul a partition decree entered in a suit by this plaintiff, Edward W. Hamilton, against Eliza Armstrong, now deceased, and these respondents, rendered in the Buchanan Circuit Court, on January 28, 1895.
The defendant demurred to the original petition filed, whereupon plaintiff filed an amended petition. To this defendant also demurred. In the meantime, upon plaintiff’s application for a change of venue, Judge Jacob Klein of St. Louis, was called in to try the case, and this last demurrer was sustained, and plaintiff filed the following second amended petition, to-wit:
“Now comes said plaintiff and for his second amended petition herein states:
“That the defendants Einis L. McLean and Susan J, McLean are husband and wife. That on or about the second day of August, 1889, the plaintiff and his brother, John L. Hamilton, were the owners in fee as tenants in common'each-of an undivided half of the following described real estate situate in the county of Buchanan and State of Missouri,, that is to say: lots 1 and 12 in block 40, lot 12 in block 53, lots 5 and 6 in block 57, lots 7, 8 and 9 in block 64, the south half of lot 11 ■ in block 40; also a lot or parcel of ground bounded and described as follows: Beginning at the southwest corner of lot 1 in block 61, thence north with the west line of lots 1, 2 and 3 in said block, 110 feet, thence east 23 1-3 feet, thence south 110 feet to the south line of said lot 1, being the north line of Felix street, thence west to the place of beginning, together with an interest in and to an alley ten feet in width on the north side thereof; all of said land hereinbefore described being in the original town, now city, of St. Joseph. That on the second day of August, 1889, the said John L. Hamilton, then being and remaining so seized of said lands and a resident of said county, died intestate, without issue and without ever having been married,, leaving as his only heirs at law the plaintiff, who was and is his only brother, and Mrs. Eliza H. Armstrong, his only sister; that the said Eliza Armstrong died in the year, 1896, being then a widow, and leaving as her only children and heirs at law the defendants Susan J. McLean and Isabella A. Bates.
“Plaintiff further states that, on the very day of the death of the said John L. Hamilton, the defendants, Einis L. McLean, Susan J. McLean and Isabella A. Bates, filed in the office of the recorder of deeds for said Buchanan county, and caused to be spread upon the record of deeds of said county
“Plaintiff further states that the aforesaid falsei and forged deed so filed for record and recorded in the recorder’s office in and for Buchanan county, State of Missouri, on the-second day of August, 1889, had appended and attached thereto a genuine certificate made by one John T. Quigley,, then and there a notary public within and for said county,, stating that the said John L. Hamilton had on the twenty-ninth day of July, 1889, personally appeared before him and had acknowledged the execution of said deed, which cer
“Plaintiff further states that the forgery of said deed was and is skillfully executed, and the pretended signature of the
“Plaintiff further states that on the —- day of August, 1889, he as plaintiff instituted a suit in this court for partition of said premises against the said Eliza H. Armstrong, Isabella A. Bates, Susan J. McLean and Einis L.. McLean as defendants, wherein his petition was as follows:
“'The plaintiff complains of the defendant, and for his cause of action states, that the plaintiff and John L. Hamilton, lately deceased, were in the lifetime of said John L. Hamilton seized in fee as tenants in common of the following
“The defendants in said cause on the twentieth day of ■January, 1890, filed their answer to said petition, as follows:
“ ‘The above named defendants for answer herein admit that plaintiff and John L. Hamilton were, during the lifetime •of said last named party, the owners of and tenants in common of the real estate described in the petition; admit that ■said John L. Hamilton died on the second day of August, 1889, leaving no wife or descendant, father or mother, and that plaintiff was said John L. Hamilton’s only brother, and that defendant Eliza H. Armstrong, was his only sister; admit that defendants Einis L. McLean and Susan J. McLean are husband and wife; admit that the defendants, Susan J. McLean and Isabella A. Bates, claim to have an interest in that portion of said real estate formerly owned by said John L. Hamilton, and claim to be in possession of deeds of conveyance from said John L. Hamilton of his one-half interest therein, and deny each and every other allegation in said petition contained. Defendants further state that prior to the death of the said John. L. Hamilton, and on the twenty-ninth day of July, 1889, the said Hamilton made and executed his
“Plaintiff further states that on the twenty-third day of September, 1890, he filed his reply to the defendant’s answer in said partition suit, as follows:
“ ‘Plaintiff, for reply to' the new matter set forth in the answer of defendants, denies each and every allegation therein contained; an;d further answering, plaintiff reiterates and charges as in his petition that the pretended deed referred to in the petition and set up in said answer, is not, and never was, the act and deed of said John L. Hamilton, but the semblance and pretense of such conveyance was procured by the solicitation and influence of defendants, unduly and fraudulently exerted over the said John L. Hamilton, and at the time when the said John L. Hamilton was suffering and enfeebled from a severe illness, which in a very short time terminated his life, and when he was in the care and charge of said defendants as his nurses and attendants, and when he was incapable, by reason of such illness, to transact any business.’
“Plaintiff further states that relying upon the false and fraudulent representations of the defendants as to the genuineness of the said deed purporting to have been executed by the said John L. Hamilton and believing the same to be true, and having no reason to suspect them to be false, and relying upon the aforesaid false and spurious certificate made by the said notary to said deed as aforesaid, and -believing the same to- be true, and having no means of discovering their falsity, nor any reason to suspect them to be false he was induced thereby and did, in reliance thereon and being misled thereby, without any fault or negligence on his part, admit by his pleadings in said partition suit that the said deed so purporting to have been made by the said John L. Hamilton, had in fact been made and signed by- him, and was induced by the aforesaid false representations and false certificates to believe that said deed
“Plaintiff further states that the pretended maker of said deed, John L. Hamilton, died within two days after it purports to have been made, and that ,in fact he was in the throes of death when said alleged deed was placed of record, and was totally unconscious from that time until his death, and that said deed was not in fact placed of -record until .the defendant Einis L. McLean was assured of the almost immediate death of the said John L. Hamilton. Plaintiff further states that he did not discover that said deed was a forgery, nor did he suspect that it was a forgery, nor had anything come to his knowledge which caused him to- suspect that it was a forgery or which would have been likely to cause him to suspect that it was a forgery, until long after the final'judgment and decree of partition aforesaid, and long after the final adjournment of the term of court at which the said partition suit was tried and the said decree entered.
“Plaintiff therefore charges the fact to be, that said decree was based upon an absolute forgery, the fact of which the plaintiff did not and could not discover, and that he was prevented from making that defense, and was induced to- admit the genuineness of said deed by his pleadings, through the aforesaid false and fraudulent representations, assurances, official certificate, and other means employed by the said defendants to mislead and induce him to- believe, and which did induce him to believe that the said deed was genuine.
“Wherefore plaintiff says that the said decree was ob
Defendants demurred to this second amended petition on the ground, among others, that it did not state facts sufficient to constitute a cause of. action. This demurrer was .also sustained, and plaintiff declining to plead further, his bill was dismissed 'and judgment rendered against him for costs, from which he appeals to this court.
This ease has had quite an eventful history. The decree of partition, sought to be avoided, was rendered three years and eight months before the commencement of this suit. The questions involved in this proceeding have been before this court on two occasions since the rendition of the decree in partition, and decided adversely to plaintiff in each instance. [Hamilton v. McLean, 139 Mo. 678; Bates v. Hamilton, 144 Mo. 1.] In the opinion on the former appeal, it was said: “Whatever the rule may be elsewhere, it is well settled in this State, in order that a judgment may be set aside in a direct proceeding for that purpose, it must be made to appear that fraud was practiced in the very act of procuring the judgment,” and that, “the fraud must be in the procurement of the judgment, and not merely in the cause of action on which the judgment is founded, and which could have been interposed as a defense.”
In our judgment, the demurrer of the petition herein was properly sustained by the trial court upon the authority of the case of Hamilton v. McLean, 139 Mo. 678, supra. The petition in this case, as in that, has the same .parties, plaintiff and defendant; its purpose, the setting aside and annulling the
The petition in the present case is much more elaborate in its detail than the petition in the case reported in 139 Mo. 678, supra, but- when stripped of its unnecessary verbiage and when read in the light of the pleadings in the pai’tition proceedings that have.been copied into and made a part thereof, so that the court might be informed as to the real facts involved, independent of the pleader’s conclusions therefrom, the petitions in the two cases may be said to be substantially the same. The statement in the present petition as to what was the issue in the partition proceedings that resulted in the decree now sought to be set aside and annulled, is, at best, but a conclusion of the pleader, the error of which is shown by the reading of the pleadings in that proceeding, which are copied into it and made a part of the petition herein, and on a demurrer to that petition the court was not bound in its consideration thereof to the pleader’s conclusions, as to the facts involved in the determination of the partition proceedings, which resulted in the decree rendered, but had the right to look beyond plaintiff’s mere statement of erroneous conclusions, to the pleadings in the partition proceedings, which were_ copied into his petition and made a part thereof, to determine for itself what really was the issue in that case.> and treat as having been said by the pleader, that only as a fact, ■ which upon the face thereof shows for itself; and this case clearly illustrates the wisdom of the rule which requires that in suits of this character, the pleader must set out, along with his statement of the facts, the pleadings in the case, in which
When the pleadings in this ease are read and considered as a whole, and in connection with the pleadings in the partition proceedings in the case of this plaintiif against Eliza Armstrong et al., copied therein, we must determine that it is nothing more than a- proceeding to have this court set aside and annul the decree obtained in that suit on the strength of what plaintiif characterizes as a forged deed, used by the defendant therein to deceive him- and the court called to- adjudge and settle the controversy therein involved.
Such being the case before us, we come again to the question, what fraud can be considered in an effort to set aside and annul the decree rendered by a court of competent jurisdiction in a proceeding wherein all the parties thereto have been brought properly before the court ? As said above, the charge made in the petition, now before us for consideration, when stripped of its useless allegations and the conclusions of the pleader made therein, is that .the partition decree, in the case of this plaintiff against Eliza Armstrong et al., rendered on January 28, 1895, was based lipón a forged deed used by the defendants in that case.
To use again the language of the opinion in 139 Mo. 678, supra, in disposing of this question, when then before the court for consideration, “whatever may be the rule elsewhere, it is well settled in this State, in order that the judgment may be set aside in a direct proceeding for that purpose, it must be made to appear that the fraud was practiced in the very act of obtaining the judgmentthat the fraud must be in the procurement of the judgment and not merely in the cause of action upon which the judgment is founded, and which could have been interposed as a defense, unless its interposition as a defense was prevented by the fraud of the adverse party.
In Nichols v. Stevens, 123 Mo. l. c. 116, it was held, that in order to set aside a. judgment on the ground of its having
"When the same question was before the court in Moody v. Peyton, 135 Mo. 489, it was there said, “The rule is that when a judgment is sought to be impeached upon the grounds of fraud, such impeachment can only occur when satisfactory evidence is offered that such impeaching fraud occurred in the very concoction or procurement of the judgment.”
In United States v. Throckmorton, 98 U. S. 61, that court thus expressed itself: “The doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed.....That the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would -be greater, by reason of the endless nature of the strife, than any compensation 'arising from doing justice in individual cases.”
Mr. Story, in his work on Equity Jurisprudence (11 Ed.), sec. 1582, thus states the rule: “The only'question of fraud which is open to examination in a court of equity, ás a ground for enjoining the judgment of any court having jurisdiction. of the.case, whether domestic or foreign, is such as intervened in the proceedings by which the judgment was obtained. All questions, prior to the proceedings by which the judgment was obtained, are necessarily concluded by it.”
In Ritchie v. McMullen, 79 Fed. Rep. 573, the court had under consideration the question of setting aside a former judgment on the ground of fraud in its procurement. After
The case at bar can not be distinguished in principle from the authority above referred to, and numerous others that might be cited if further reference was deemed necessary, in which similar relief has been refused, and in which the doctrine contended for by plaintiff was denied. ' But. appellant now contends that whatever might have heretofore been the rule in this court upon this question, the rule has been greatly modified in the case of Wonderly v. Lafayette County, 150 Mo. 635, and "that it'may now be construed to be, that judgments are impeachable for fraud relating to the merits of the controversy, and perpetrated against a party and the court called upon to consider it.
There is nothing in the Wonderly case which militates against the rule announced in any of the foregoing authorities. The rule there enunciated does not apply to the facts here. The distinction is obvious. In the Wonderly case the petition was predicated upon fraud in inducing the Federal, court to assume jurisdiction, and the only question involved in that cause related to the manner of obtaining jurisdiction of the cause. In other wordá, whether the judgment could be-attacked for the fraud of Wonderly in having the Federal court take jurisdiction in the case through the interposition of ■ Francis Owens and render judgment that could not have been
Here, there is no pretense of fraud in acquiring jurisdiction in the partition suit now sought to be set aside and annulled. On the contrary, the annulment of the decree is sought on the ground that the defendant had used a forged deed in obtaining it. In the Wonderly case, the court cites the case of Hamilton v. McLean, 139 Mo, 678, supra, with approval.
While it is true, as contended by plaintiff, that the deed in question was assailed in the partition suit on the ground of its having been obtained by fraud and undue influence, yet that was not the only issue tendered by the pleadings. In that case the petition referring to the deed in question and two others, executed at the same time, alleged that “they were and are null and void.” The defendants in their answer in that suit set up that deed averring its execution and delivery by John L. Hamilton, whereby he “conveyed his undivided one-half interest in and to the land in the petition described to these defendants.” The reply, after denying each and every allegation contained in the answer, alleged that the deed in question “is not and never was the act and deed of John A. Hamilton.” Thus it appears that the execution and validity of the deed in the controversy was directly involved in the partition suit.
The validity of the deed having been directly, and not extrinsically or collaterally, involved in that case, the plaintiff is concluded thereby and can not, in the circumstances of this case, again go into the merits of that controversy, even though
Counsel for plaintiff, however, seek to excuse their failure to show that the deed was a forgery upon the trial of the partition suit, by alleging in their second amended petition that the defendants had “at divers times subsequent to the date of the deed and before the trial of the partition suit, fraudulently represented that the deed was genuine, and that it had been signed by John L. Hamilton.” This was not a statement of an extrinsic or collateral matter. It was a fraudulent statement touching a matter necessarily involved in the trial of the merits of the partition suit; and the mere fact that both the plaintiff and the court were deceived thereby does not affect the question involved here, or change the character of such representations. It devolved upon the plaintiff to ascertain the facts in respect to the alleged execution and validity of the deed, and he had no right to rely alone upon the defendant’s statements concerning it. It is not claimed that any confidential relations existed between the plaintiff and defendants. They occupied antagonistic positions towards the property and towards each other so that plaintiff relied at his peril upon any statement defendants may have made relative to the character of their title. [Ritchie v. McMullen, 79 Fed. Rep. l. c. 531; Lewis v. Land Co., 124 Mo. 687; Wood v. Amory, 105 N. Y. 282.]
Moreover, the pleadings in the partition suit, which are set out in the petition herein, conclusively show that the plaintiff was not misled or induced by any statements, made by the defendants to admit the genuineness of the deed in
The plaintiff having been given an opportunity of showing that the deed was a forgery, upon the trial of the former suit, and having failed to do so, the judgment will not now be set aside, and the merits of the action gone into again.
The judgment of the circuit court is therefore affirmed.