225 Mo. 685 | Mo. | 1910
From a decree in the Jasper Circuit Court affecting land, both parties appealed to the Kansas City Court of Appeals, the appeals coming to this court from that on the theory title to real estate was involved in the judgment.
In a pinch, in court or out, much is seen through
One Smith of Oronogo met defendant Scott at the Joplin railroad station in January, 1904 — Scott then being in the thrall and throes of bankruptcy on his own petition. Now, Smith was a real estate agent, who, under this record, must have had an alert eye, if not a receptive palm, for a dollar. Did Opportunity in that behalf knock at Smith’s door? Then, either the latch string hung out for a “come in!” or opens Smith at once. Scott had fished in the troubled waters of speculation in mines and mining, at some time meeting up with Howard. The latter had journeyed from Decatur, Illinois, and was sojourning in Jasper county to mend his fortune. Betimes it fell out that the twain, Howard and Scott, became tenants in common in the land in suit, a farm of 137 acres hard by said Oronogo —further, that said Smith once had charge of it as agent for the two. So, meeting Scott by chance on a winter’s day, he took time by the forelock, and, assuming the title to the farm stood in the two, accosted Scott thus (quoting): “Do you want to sell — do you and Howard? I got a buyer.” Then this (still quoting from Smith’s evidence): “He says, ‘That damned rascal stole that from me,’ and I says, ‘Who?’ and he says, ‘Howard,’ and I says, ‘There is a way to bring thieves to justice if that is the way about it. One
But to begin at the beginning to unravel the tangled threads of an uncommonly complicated record. In 1897 or thereabouts Scott, with one Maris and plaintiff, Howard, were partners in developing, exploiting and working mines and mining properties in Jasper county — only one, the “Little Nugget,” or “Sacred Nugget,” becoming a paying proposition. We deem the testimony, of which there is a great deal, relating to the various contracts anent the “Little Nugget” and the other mines, the outlays and incomes, profits and losses thereof, and the ultimate sale of the “Little Nugget” as throwing little or no light on the case to be decided. This testimony will therefore be omitted. Suffice to say that at a certain time the “Little Nugget” was sold and on winding up the mining ventures and the partnership of Scott, Howard and Maris, it resulted that Scott owed Howard $2816.28. There was a dispute between them. They fell out and went to law. Their respective partnership claims and counterclaims were threshed over before a referee. Presently in 1901 it was found that Scott owed Howard the above amount, afterwards merged in judgment, which, on appeal to the Kansas City Court of Appeals, was affirmed. [98 Mo. App. 509.] That suit ran for three or four years and will be called “suit A.”
doing back a little. In January, 1898, Scott took an option on the land in suit (137 acres), viz., all of the southeast quarter of section 30, township 29, range 32, in Jasper county, Missouri, except thirty acres in the northeast corner — paying’ ten dollars to Hayden, then owner, for the option. The purchase price was $4785 and the payments were to be: One-fourth down and three-fourths deferred, to be evidenced by notes due in one, two and three years in equal amounts, at eight per cent, secured on the property. The land was a farm and used as such. It may have had a prospective value as mineral land but no attempt was made to explore it for mineral. Presently, before the option expired, Howard agreed to take a half interest in the farm. To that' end he drew a check in favor of Scott for $1186.25 to complete the cash payment, and Scott indorsed the check over to Hayden, who, in turn, cashed the same for the payment in hand. The transaction was closed in this way: Hayden conveyed the land to Scott, took back from him a deed of trust securing the notes evidencing the deferred payments— said notes signed by Scott and wife. One Manker was made trustee. This deed of trust and the warranty deed to Scott being spread of record, straightway Scott and wife conveyed an undivided half interest
At some time shortly before August 13, 1900, Howard went to Hayden, paid him the full amount of the three notes given by Scott and wife for the deferred payments on the land and took over the. notes, each indorsed thus: “Pay to the order of F. P. Howard without recourse.” Signed, “T. C. Hayden, trustee.” It seems the notes bore a prior indorsement from Hayden as payee to “T. C. Hayden, trustee for Ernest Webb estate.” The amount of the notes at that time was $3736.30' — the first note was due, the last two were not due. Howard and Scott were “at outs ’ ’ and then litigating over their mining differences.
On October 8, 1900, the sheriff as acting trustee made the sale, presumably at the place required by the deed of trust. One O’Donnell bought on a bid of $485 and a deed to him followed. The advertisement was to the effect that the trustee would sell the undivided half interest in the land owned by Adam Scott, the grantee in the deed of trust, and further set forth that the other undivided interest had been conveyed by said Scott and wife to Howard. It stands conceded that O’Donnell was representing Howard at the sale and that the trustee’s deed conveyed the interest advertised. He received fifteen dollars for his services and immediately quitclaimed to Howard for an express consideration of $500. Howard at once took possession and by his tenants held possession at the time Smith, in Scott’s name, brought suit under the contract we have mentioned. At the date of sale the
The suit brought in Scott’s name by Smith against Howard contemplated setting aside this sale for fraud, and the theory of that case will be developed with particularity a little farther along. Before we come to that suit, another court proceeding demands attention in order to preserve the march of events in due order of time.
Scott knew nothing of the foreclosure at the time, but finally became aware of it. In a casual way he asked street opinions of lawyers about the sale, but got no encouragement. The truth is his financial affairs had run at loose ends and were in a desperate fix. He was much involved in debt and litigation, and, we take it, was entirely dissatisfied with his counsel’s management of his lawsuits, so that whether from distrust of courts or lawyers or for other reasons, he acquiesced in the foreclosure for the time. That foreclosure was followed by judgment in “suit A,” in 1901, already mentioned. Presently after the judgment in that case was affirmed he concluded to surrender all his property, except the strict exemptions allowed by law, and in turn to get acquit of all his debts. To this end, on July 8, 1903, he filed a petition in the district court of the Southwestern Division of the Western District of Missouri to be declared a bankrupt and in due course was declared one. A trustee was appointed. His report shows that all the personal property listed was allowed to the bankrupt as exempt. We infer that all the real estate disclosed
His said petition also contains the following allegation: “That the schedule hereto annexed, marked Exhibit B, and verified by your petitioner’s oath, contains an inventory of all of his property, both real and personal, and such further statements concerning said property as he is able to give and as required by the said acts of Congress.” Attached to that schedule was Scott’s affidavit to the effect that being duly sworn he did declare said schedule to be a statement of all his estate, both real and personal, in accordance with the acts of Congress relating to bankruptcy. A creditors ’ meeting was called in due course by the referee, Mr. Spencer. In the course of that meeting the conscience of Mr. Scott was sifted thoroughly and he disclaimed any knowledge of any other property except that scheduled by him in schedule B. Schedule B covered household, kitchen and office furniture, one cow, one horse and buggy, one dwelling-house in Joplin (mortgaged and the equity claimed as exempt), one-half interest , in a mining lease near Smelter Hill and one-half interest in a mining lease on Granby land. There was no mention in the schedule of any interest in the land in suit, and during that proceeding, as it ran its course in the bankrupt court, Scott called no attention to any such claim.
At the creditors’ meeting claims were allowed against the estate of the bankrupt. Mr. Scott was there with his attorney, and Mr. Howard with his.
The suit we have now reached will be called ‘ ‘ suit C” and it will be necessary to develop the theory of that case with some particularity. Howard, in the meantime, had left Jasper county and returned to Illinois. Service was had on him in “suit C” by an order of publication, the affidavit of non-residence made by Smith as agent for Scott. The allegations in the petition .were, in substance, that Scott owned the land and executed the Hayden deed of trust securing three notes; that thereafter Scott conveyed to Howard an undivided interest in it subject to the deed of trust; that as part of the consideration of the conveyance from Scott to Howard the latter agreed to pay one-half of the indebtedness; that defendant paid the first note and it was surrendered and can-celled, leaving the last two notes, one due on January 22, 1900, and the other one year later; that thereafter plaintiff paid to defendant the half of all three notes with the interest thereon, being his whole share thereof, and defendant received such payment and agreed to pay said notes and have them and the deed of trust satisfied in full; that defendant did not cancel the notes
The suit was instituted in the Jasper Circuit Court at Joplin. The order of publication was made in the “Oronogo Index,” a newspaper published in a little town some distance away and defendant Howard was ordered to appear at ensuing April term. Said order of publication, among other things, stated that the “Oronogo Index” was “designated by the plaintiff as most likely to give notice to said defendant.” Howard had no actual notice of this suit. At said April term a decree was entered following the lines of the petition — finding the allegations therein true, seriatim, and decreeing the foreclosure by the trustee void for fraud and the conveyance subsequent void for fraud, declaring Scott the owner of an undivided. one-half interest “free from all encumbrance of said deed of trust” and that plaintiff was entitled to partition. From this on, things moved off with a quick step. Commissioners were appointed at the time of the judgment, viz., May 14, 1904, to make partition. Two days later they qualified. On the same day they made their report partitioning the land equally between the two,
We shall omit the voluminous pleadings, attending to the gist of them, because of a certain contention made on appeal on the nature of the suit. The petition is plainly a bill in equity. It narrates the history of the purchase of the 137 acres by Scott from Hayden, the execution of the deed of trust for the deferred payments, the execution of a warranty deed from Scott and wife to Howard for-one-half interest subject to one-half of the said deed of trust debt, and alleges that plaintiff assumed and agreed to pay said one-half; that subsequently Scott and wife defaulted in the payment of their one-half; that thereupon Howard bought the notes from Hayden, Manker the trustee refused to serve, and the sheriff of Jasper county at Howard’s request advertised and sold at public outcry the half interest of Scott at the courthouse door in Carthage to O’Donnell, the highest and best bidder, the execution of the trustee’s- deed to O’Donnell and O’Donnell’s to plaintiff. That the premises considered, the plaintiff became the owner of the real estate. The bill goes on to allege the facts relat-
The relief sought was a decree vacating and annulling the partition proceedings from end to end and vacating the deed from Scott to Mooneyham; the vest
The answer of Mooneyham is to the same effect.
The reply ran in the form of a general denial to the separate answers.
At the trial the testimony took a wide range. The
It is proper to say that not only in the bankruptcy proceedings was the fact concealed that Scott claimed an equitable interest in the land in dispute, but in “suit C” the State court was not informed that Scott had gone into bankruptcy or that he had not been discharged at the date he claimed the land, began the proceedings to recover it by setting aside the foreclosure, and to have partition free of the encumbrance of the Hayden deed of trust.
The decree annulled the partition judgment (in part), the report of the commissioners, and the confirmation of that report, as. fraudulent. It also set aside the deed from Scott to Mooneyham as void. There was an important exception mentioned presently. It found and adjudged that Scott had never paid his share of the Hayden notes to Howard or in anywise discharged them.
So much for that part of the decree favorable to Howard.
The chancellor then went on to decree that one half of the Hayden notes is a valid debt “and a lien against Adam Scott’s interest in said land under the terms of said deed of trust in favor of the plaintiff in this case,” and it adjudged that that part of the decree in the partition suit which found the foreclosure proceeding, the trustee’s deed to O’Donnell, and O’Donnell’s deed to Howard were fraudulent and void and of no effect, “be and the same is hereby approved and confirmed as valid.” Costs were taxed against defendants.
From that decree both parties appeal, as said,
I. On one phase of the case, plaintiff’s counsel argue after this fashion: the entire interlocutory and final judgment assailed should have been vacated as of course, they say; and so much of the decree as left part of the judgment effective in Scott’s favor (viz., that part setting aside the trustee’s sale and putting the title to the land in Scott and Howard subject to the deed of trust) is erroneous. This branch of their argument rides off on the theory that the suit is, in effect, a statutory review of the partition judgment. When brought to booh on that proposition is it so? We think not, because:
By Revised Statutes 1899, sections 777 to 784 inclusive, a statutory scheme is provided for reviewing a final judgment on default if the defendant be not summoned and has not appeared and the proceeding for review be commenced within three years, or, in a named contingency, in one. By such petition for review an easy and beaten path is marked out, if an injured defendant choose to take it with the conditions imposed. Tie need only show “good cause for setting aside such judgment,” for instance, that plaintiff’s petition on which the judgment was obtained “is untrue in some material matter, setting it forth, or that he has and then had a good defense thereto, setting such defense forth, or both.” He need not plead or show fraud as a ground for vacating the judgment. [Irvine v. Leyh, 102 Mo. 200; R. S. 1899, secs. 777 to 780, supra.] We are not saying he may not plead fraud. We say he need not handicap himself with the burden of the plea unless he so elects. If the statutes be complied with by the petitioner, the judgment may be vacated, but only on .a condition, viz., that defendant answer or demur to the petition on which the judgment was rendered within a reasonable time
Here Mooneyham has acquired the share set off to Scott, and Mr. Howard, as plaintiff (not as a defendant), brings Mooneyham in as a party defendant and seeks relief against him. The petition was neither entitled nor filed in the original suit. It did not proceed on strict statutory grounds; for the gravamen of the complaint is fraud, and fraud is the most ancient foundation of equity jurisdiction. Observe, Howard tendered no answer or demurrer in the original suit; he did not ask to go on in that case and to have the judgment opened that he might go on. Contra, the relief sought was to sweep away the judgment, the report of the commissioners and its approval, together with Mooneyham’s deed, as the product of fraud and (more significant still) to re-establish his own title out of hand and once for all. It was then a suit to cut behind the partition judgment and proceedings and to try out the merits, not to reopen the old case and proceed to another judgment on another trial in that case. Not only so, but that object was attained by the decree. Therefore, we hold that, having sued in equity, made Mooneyham a party with Scott, and having taken a decree setting aside Mooney-ham’s deed-and the main terms of the partition judgment for fraud, thus avoiding the plain beaten path of the statutes and its incidents, plaintiff’s present contention is unsound. The scope of the pleadings, the parties, the relief sought and obtained and the whole course of the trial considered, it becomes clear
The point is ruled against plaintiff.
II. Defendants’ counsel argue, in substance, that the petition does not earmark the fraud or specify the facts constituting it. They say that to charge fraud generally is to charge a mere legal conclusion; that the substantive and ultimate facts constituting the fraud must be stated or there is no issuable allegation; furthermore, that the strict rules applied in cases where the solemn judgment of a court or the validity of a deed is assailed, require a corresponding strictness and fullness of precision in charging fraud as a ground of relief — all of which propositions may be allowed to them — and finally, that plaintiff’s bill states no cause of action and hence so much of the decree as is in favor of Howard must fall. "We shall not further develop this contention, nor reproduce the bill here in determining the point. We think the petition good after judgment —at least in the absence of a timely motion to make more specific and definite, or other timely objection nisi. It is not without .particularity in charging facts constituting the alleged fraud. Learned counsel did not assail it below as bad for that it stated no cause of action. There can be no appreciable unfairness in our entertaining here the view they entertained below and upon
The point is ruled against defendants.
III. Defendants’ counsel assign error in that, on the facts, there was no such fraud in the very con--ipxucl exp ui quotaspnC exp jo ^uetaomoojcd pue uopooo tion suit as furnishes grounds to annul it in equity. We are cited to a line of cases in that behalf, of which Wabash R. R. Co. v. Mirrielees, 182 Mo. 126, is a fair and fresh example.
In determining the question raised it is not amiss to remind ourselves of some fundamental propositions vital to justice. It is axiomatic that fraud is odious. It vitiates everything. It is the delight and glory of a chancellor to feel for it and snatch away its fruits with a strong hand when found. Judgments of courts are not immune from it. To the contrary, more’s the pity, many a'heinous fraud wears the form and semblance, the fair and honest face of an orderly procedure in courts of justice, and takes its consummation and works its iniquity under the forms of law — the imitation of solemn honesty is but a tribute vice pays to virtue. Accordingly, when fraud is charged, the piercing and discriminating eye of the chancellor looks for it high and low, whether it hide out in some everyday affair or in the judgment of a court. So, equity seeks substance, not form, in pursuit of fraud.
What is fraud? No statute and Ho judge has been so daring and unwise as to define it by hard-and-fast rules. That pre-eminent jurist who “perfected English equity into a symmetrical science,” who is deemed by no less an authority than Lord Campbell “the most consummate judge who ever sat in the court of chancery,” Lord Chancellor Haedwiokb, he who, as the lad Philip Yorke, was designed by his pious Presbyterian mother for some “1lonester trade” than the profession of an attorney (she longing to “see his head wag in the pulpit”) who gave his “days and nights
Broadly speaking, it may be said that false evidence or a lying allegation in a petition is not sufficient to overturn a judgment after the term by a direct proceeding in equity; the idea being that there should be
For my own part, I lean strongly to the notion that the strictness of the doctrine just announced should be applied only to those cases where there is service of process, or actual notice of the suit, or where an appearance is entered and the complaining party has had a chance to meet his adversary and join issue; and that the doctrine ought not to he applied strictly or mechanically to judgments on mere newspaper notice where the defendants knew nothing of the pendency of the suit. If the rules of law are to be administered with reason and never run beyond the underlying reason of them such would seem to be the better view; but in Irvine v. Leyh, 102 Mo. l. c. 207, that view of it was put baldly and strongly to this court by Black, J. It met the concurrence of G-aNtt, J., but the majority of his brethren refused to adopt it. Nine years afterwards in Wonderly v. Lafayette County, 150 Mo. l. c. 650, the dictum of Black, J., was referred to by Valliant, J., as announcing the “reason” of the law and no exception was taken by any of his brethren. If the proposition announced by Judge Black has been ruled by this court since the Irvine case it has escaped me. However, no such discrimination between judgments on actual as against those-on newspaper service has been announced in the many cases decided here assail
Nevertheless no court has undertaken to point out and define the particular frauds which will vitiate a judgment any more than it has to define fraud generally, and many cases attest the acute diligence of courts in classifying facts as extrinsic and collateral in order to save the administration of justice from the heavy reproach of enforcing an unconscionable advantage sounding in fraud in procuring a judgment. In Wonderly v. Lafayette County, supra, the scheme denounced there was said to be a “fraud on the court whose jurisdiction was betrayed and a fraud on defendant who was tricked out of his defense.” That case illustrates the honorable sensitiveness of courts to frauds on their jurisdiction, and shows how shadowy, uncertain and somewhat arbitrary is the line between fraud in the procuring of the judgment as distinguished from fraud in the cause of action itself. In other cases judgments have been annulled because of tricks and deceptions whereby the court has been made an “instrument of injustice.” [Bresnehan v. Price, 57 Mo. 422; Lee v. Harmon, 84 Mo. App. 157; Clyce v. Anderson, supra; Fitzpatrick v. Stevens, 114 Mo. App. 497.]
In the case at bar the jurisdiction of the Federal court on the subject-matter of this controversy was betrayed if the theory be adopted that Sjgott had any interest left in the land of any value; for he concealed
That fraud was also perpetrated by false aver-ments in Scott’s petition and by false testimony at the trial might not by itself be sufficient to overturn the judgment, but certainly proof of the latter frauds, abounding in the case, ought not to help sustain the judgment or prevent its overthrow if other fraud in extrinsic and collateral matters challenged the attention of the chancellor. Such frauds were abundantly proved. .
The point is ruled against defendants.
IV. For Howard it is argued that the decree was erroneous in so far as it reinstated the lien of the deed of trust and made Scott’s half of the debt a valid lien on his one-half interest in the real estate, and in so far as it approved and confirmed as valid that part of the judgment in “suit 0” which set aside the foreclosure proceeding, the trustee’s deed to O’Donnell and thé deed from O’Donnell to plaintiff. Attending to that contention we think it sound. The pleadings were not framed on the theory the deed of trust should be re-established. The plaintiff did not ask that, nor did the defendants. Defendants did not ask to redeem or show a disposition to redeem. Their theory was that the notes were paid and that the foreclosure was fraudulent because they were paid. Plaintiff’s theory was that the notes were not paid and that the foreclosure was made because of default in payment — furthermore that the judgment in “suit C” was fraudulent. The defendants’ theory was contra. In this condition of pleadings and issues Scott was put in the way to redeem without asking for redemption.
Not only so, but he was put in a situation to redeem when, at the time of bringing the suit, the title
If Scott had had the right to sue and the case had been tried on the theory of the right to redeem and the pleadings had been construed'by the parties that way, a different case might be here.
So, if the case had not been brought during the pendency of the bankrupt proceedings and if the Federal court, on its attention being called to the existence of property not scheduled and distributed, had refused to set aside its order winding up the estate and discharging the bankrupt, and if Scott had sued after that in the State court, we might have had a different case. After the judgment in bankruptcy and while that cause was pending, Scott became civiliter mortuus as to his property not exempt, and the title thereto; but, when once discharged, he was no longer civilly dead and the title might be restored to him if the Federal court did not again reach out its hand and seize it. [Scruby v. Norman, 91 Mo. App. 517.]
Again, if Scott had not been civilly dead as to this land when the suit was brought' and if he had brought a suit to set aside the foreclosure on the ground of some irregularity connected with the sale or because the advertisement of the sale was made in such a manner as to prevent instead of give notice and was a trick upon him whereby he had lost a valuable estate at a sham sale for an inadequate consideration, there might have been a different case here.
So, if under similar circumstances, he had sued to set aside a sham sale and to redeem on the theory that the Hayden debt was a common burden on the common title, that his cotenant was a purchaser at the sale and, because of the relation of trust and confidence imposed by cotenancy, such purchase inured to
Plaintiff’s assignment of error is well made. We so rule.
Y. There is one other question. Mr. Mooney-ham’s insistence is that the decree is erroneous in setting aside bis deed. It is argued be was an innocent purchaser under the partition judgment. The testimony shows Smith was the prime actor. In the significant language of his contract he agreed “to do and perform all things necessary” to recover the land.
Mr. Mooneyham came in under Mr. Smith. He drafted that contract. He never came in contact with Scott until about two days before the trial in “suit C.” He knew of the bankrupt proceedings. As agent for Smith and Scott, as an alert and capable attorney, he is presumed to have performed his duty in advising himself in relation to the pendency of that proceeding and that the title to Scott’s land was in the trustee. At some time not clearly disclosed he took upon himself a dual relation, namely, as an attorney and as a purchaser from Scott. He bought untimely, before final judgment approving the commissioners’ report. This with Smith’s acquiescence. He holds now as trustee for Smith because he had not settled with him and the contract provided that Smith, not Mooneyham, should have a half interest. Scott’s hurried deed to Mooneyham narrates a consideration of one dollar and other considerations not named. It seems that Scott had some mining claims he was exploiting, that Mooneyham advanced money on those claims either to develop them or to buy them, that when Howard brought his present suit Mooneyham
The premises considered, the decree is affirmed as to the appeal of appellants, Scott and Mooneyham. That part of the decree appealed from by the appellant Howard is reversed and the cause is remanded with directions to the lower court to enter a decree giving H oward the full relief prayed in his petition.