*1 Jay Appellants, and Flossie Jones, Arnold, Charles W. Jones Scott, Arnold, Norman Preston Francis Fernita No. Respondents, 41009 221 S. W. and Ronald
(2d) 187. One, May 9,
Division Rehearing Modify Opinion or to Motion for Overruled, June
Boyd Jones; Ewing Jay appellants and Flossie Jones Ewing, Ewing Ewing & of counsel. . . Arnold, respondents
Joe W. Collins for Fernita Scott Charles Arnold, Francis ad for Norman Preston Guardian Litem Arnold and Ronald minors.
DALTON, (1) C. Action two cpiiet counts: To and determine title to county described real estate in ground Cedar on the quieted title had theretofore been plaintiffs’ predecessor title and that the claims of by the defendants were prior barred (which judgment judgment purported to reform the deeds under which the claim defendants and further determined against title them); (2) and to reform the deeds under which defendants claim contingent subject remaindermen to the 'life estate of Frank Arn- (so convey old that the deeds will Arnold) the fee to quiet and to against the title by defendants. Defendants answer and cross action seek to establish their claimed contingent interest as remaindermen yacated under the mentioned deeds and to aside, have and set alleged fraud in procurement, its upon by plain- relied tiffs. The trial court vacated and set aside judgment, re- fused to reform quieted and the deeds the title as claimed de- have and contend there is evidence appealed Plaintiffs
fendants. court. judgment of the support findings and in the record to intestate, IT. to show J. Arnold died The tends real and other lands. estate possessed seized and the described bjr E. and three adult his Arnold was survived widow Sarah He children, Emily Collins, Arnold. De Arnold and Frank Mae
Allie are Arnold, and Arnold Fernita Francis fendants Charles Scott Norman Preston Arnold and-defendants children of Frank Charles Arnold. grandchildren his sons of and’Ronald Arnold are agreement into between May 1915, entered pursuant In an oral IT. Arnold for reasons that children widow and three of J. conveyed mother, stated, the children not here be three need in the real owned E. all of their interests Sarah .estate immediately death and she the time his father at their thereafter, by conveyed deeds, to “Frank separate two question. acknowledging bodily real estate here heirs” the expressly assigned right her of dower and she deed one tract for herself a life estate and to the other tract she reserved the deed assigned.” convey shows “Dower not Other acknowledgment her prepared All deeds were to the other heirs. were ances made acknowledged party and recorded same before the same agreement. same stated in pursuant consideration date provi affection.” The detailed deeds and “love and $1.00 agreement deeds conformed to sions several grantor grantees correctly expressed the intention of when and delivered. executed wife, simple,
Thereafter, Frank Arnold and as owners in fee exe- question to property two of trust on the here in cuted *4 Company Duvall-Percival Trust to secure certain notes therein de- been satisfied' record. The deeds of trust have On Jan- scribed. uary E. a recited" $1.00 Arnold for consideration of Sarah quitclaim a to Frank Arnold deed to executed and delivered one of In she his two of land. this deed recited that the deed tracts prior warranty a of and satisfaction for” deed “made release dated May 17, December Sarah for 1915. On E. Arnold a-recited quitclaim a Frank $1.00 consideration of executed deed to Arnold acquired covering tract he had from her. the other by deed, warranty January 20, Sarah E. Arnold for a On convey purported to to Frank Arnold the $1.00 consideration of fee of real previously title one of two tracts estate simple con- that was made for veyed. purpose recited it This deed cor- warranty E. of Sarah recting original carry deed Arnold “and to convey and of said deed purpose real -intent and also to out the conveyance in said it was the intention life estate retained and by parties grantee in interest that said all should understood have so life estate subject grantor, simple and title fee carry full intent out the conveyance seeks she by this relinquish rights all and es- time to and also at this of same purpose above described simple title Frank Arnold a fee in said tablish land.”' dollar and “one July 25, 1925, Frank Arnold wife for
On warranty by purported deed con- valuable consideration” other vey simple all of the described real estate to T. Mont- the fee title to Craig County, Oklahoma, “subject mortgage gomery $4800 grantee agrees pay.” to assume and which residing Frank children were Arnold his three twenty Montgomery, away, who lived about miles visited
Oklahoma. Arnold between 14 them often. The several children were and 18 years age. Montgomery told Frank there was a defect in Arnold him; acquired necessary the title to the lands that it -was to have friendly straighten title; go “a suit” to out the and that “he would down have it done.” The’ evidence tends to show that both Mongomery Later, Arnold and knew what the defect was. Mont- gomery brought straight- Arnold had told the suit been and the title up. Móntgomery ened Neither nor Frank Arnold at time men- tioned the matter of the the Arnold suit to children. Arnold made arrangements represented they to have the children never against even learned of the fact that suit had been instituted them they present until received notice of the action. The evidence further Montgomery, conferring tends to show Frank after with Osborn, attorney conferred with E. Sarah Arnold and S. E. county. attorney
Cedar The conferred with E. Arnold and Sarah an conformity obtained affidavit in with the recital her deed of January 20, 1925. action was instituted in the court of circuit county warranty
Cedar to reform striking the two out the bodily grounds "words “and his assigned heirs.” The for reforma tion convey were that Sarah E. simple Arnold intended to a fee title; Frank expected to receive simple; title fee that mistake of the scrivener the express deeds did not the mutual intention of parties. Sarah E. Arnold and Frank who parted had with possession, title and were not made Only the action. the three minor children of Frank Arnold, non Missouri, residents of the were made defendants and by publication for service order publication -was obtained. Proof of duly made, (cid:127)was called, defendants -were three times but did not appear and a default Rhodes, reputable was entered. J. attorney F. *5 of El Dorado Springs, appointed guardian was ad litem minor defendants. He filed an answer on stating their behalf he was unfamiliar with the facts asking require the court proof. strict- The minor'defendants had county, lived in Cedar but in 1927, stated, they as residing with their father in Oklahoma. Rhodes,
They any never knew of or had with Mr. who communication testimony sought by plaintiff offered no on behalf. The relief their granted. by consent, the judgment was While the not entered was was judgment Mr. “saw and it shows Rhodes agreeable knew, Mr. Rhodes opposing with him.” As far as counsel not a judgment “consented to the entered.” It was the court judgment by objections- consent, entered no thereto there were but appeal and no taken. reforming quieting
The decree the deeds and- title was entered 28, Respondents’ November 1927. and cross action to vacate answer procurement and set the decree aside for fraud its De- was.filed 9, concerning reply cember 1947. No issue was raised pleading proof statute no or as to the of limitations there was acquired title, concerning appellants circumstances under which nor knowledge knowledge alleged pro- or lack fraud in their judgment. parties stipulated curement of the “that acquired by conveyance Frank plaintiffs herein have mesne convey by Frank Arnold could deed which whatever..title gave when in connection with T. considered tenant, living. the 1927 law suit.” Frank the life was still Other opinion. facts will be stated in the course of the finding procure
Does the evidence sustain the of fraud in the prior judgment? proceeding ment direct judgment ground fraud, upon set aside a the burden rests party seeking alleged such to establish relief fraud evi cogent convincing dence that is clear, so as to leave reason fraud, able doubt procurement of such the fraud must be in the judgment, distinguished going as from matters to the merits McCormick, (2d) 654, the cause. Elliott v. 323 Mo. 658; Hockenberry County Bank, Cooper 88 S. W. (2d) 1031, 1036; Easterly, Sutter 354 Mo. 189 S. W. upon subsisting judgment,
The record
its face shows a valid
regular
respects
binding
all
upon
material
the defendants
Driskell,
named
therein. See Jones
Appellants that the became absolute under 1939, long 1247 and 1249 R. S. Secs. institution of the cause’’; instant and that it “is not voidable now.’’ The mere fact and no bill appeal that no was taken of review filed period within the and that the provided statute became final and conclusive
167 between the is proceeding no bar to a direct judgment vacate set aside the procurement. fraud its Gabbert, Fadler v. 333 (2d) 121, Mo. 129; Spotts v. Spotts, 331 (2d) 977, S. W. 55 premises of question, the deeds in of the name
grantee designated was bodily as “Frank Arnold and his heirs.” The form of the by subsequent deeds and the efforts evidenced by litigation simple- sufficiently obtain title in fee show recognition of the fact that the children of Frank Arnold had a contingent interest of record in the described pur real estate. The pose original of the suit was to defeat such record interest. Mont gomery bringing insisted on petition suit counsel drafted the great with care. prior defendants in the suit had a valid meritorious defense
thereto, towit, that sought the words to be stricken reforma out intentionally tion were inserted; conveyed the estate was in compliance agreement with an entered into between the widow and children of J. Arnold; II. and that the deeds were executed carry form shown to an out intention expressed by H. J. Arnold in his lifetime. The that, fact lapse after a twenty more than years, present defendants action were able to make the same de fense and establish it to the full satisfaction of the trial chancellor is sufficient to show prima facie the defendants in the ac good tion had a and sufficient meritorious defense. Gaertner, Beil v. 197 (2d) S. W. 611, 616; Hockenberry Cooper v. County Bank, supra (88 (2d)W. 1031, 1037) ; Cherry (Mo. App.), (2d) Wertheim S. W.
Through no fault of own these minor defendants were totally deprived opportunity present their meritorious de They fense. never guardian knew the ad litem who appointed was represent they them and never learned of the existence the suit. they While had a meritorious presented. defense it was not There was no contest and no evidence whatsoever was offered on their be half in the trial of the cause. There no they is contention that guilty negligence presenting in not their defense, they or that have guilty been diligence laches or want of discovering in not the al leged fraud. Overton, See Overton v. supra; Cherry v. Wertheim, supra; College Monmouth Dockery, appointment 785. The guardian ad litem filing and the formally his answer complied with the statutes and facilitated the entry judgment. Such formal compliance did pro not make the ceeding adversary such an one as to bar relief equity. If judgment procured by was in fact fraud collusion, charged, the fraud proceeding vitiated the whole and the defendants are en equitable titled Spotts relief. Spotts, supra (55 S. W. 977, 983). deprived That defendants were of their récord interest clearly injured ap- the described -real estate and decree
pears, since the decree of their How- pleaded in.bar claim. ever, injustice “the fact that from the results equitable interposition.” means sufficient to invoke Dobbs v. The St. *7 Joseph Co., 189, Fire & Marine Ins. 191. 72 Mo. The defendants adequate- remedy no law. had. available or at tending original The evidence to show action instituted that the was prosecuted by agreement Montgomery and of consent and and Arnold knowledge with a full of in real defendants’ interest the described estate;-and Frank Arnold E. and Sarah Arnold knew of defend pro ants’-meritorious defense was not sufficient to show fraud in the judgment. curement of tended show a -the Such evidence Realty action. fraudulent cause of Belt, W. H. Johnson Timber & Co. v. 515, (2d) 153, 156; Gallagher (Mo. 329 Mo. 46 S. W. v. Chilton Sup.), 409, judgments W. 412. do not 192 S. Courts of vacate “for purpose giving the a second party opportunity of defeated be Murphy France, heard on of the merits his defense.” v. De 101 151, 158, W. 756; Gaskell, v. 190 593, 13 S. Winchell 354 Mo. (2d) S. W. 272. 266, chancellor fraud and found there was collusion Mont The.
gomery purposely keeping the minor defendants from knowing anything adversary about ; the that there was case trial case; or decision of issues of and that the defendants never had of knowledge suit, being kept ignorance by the acts Montgomery upon and Arnold. relied The rule is set out. Over (37 ton v. Overton, supra (2d) 565, 568). S. W. And see Hocken berry County Cooper Bank, Lieber, v. Lieber v. 239 supra; 1, 44, 458; Alden, 143 160, S. W. Street v. 62 64 N. Town of Minn. 158; 1, W. v. 157, Alger, 22; 114 Keith Tenn. United States v. Throckmorton, 61, 65; 673, 98 U. S. Am. Jur. Judgments, Sec. p. 240. Gabbert, (63 W. supra 121, Fadler it is 132), S. said
that:'“All all emphasize Missouri cases and other cases an act' of (cid:127) fraud entering procurement judgment any. into the of a conduct tends, adversary which to trick an of a out' defense or to blind-him pendency an action.” points This case further out that may, which lawful right particular act one has the do under cir cumstances, be “a device from prevent intended to defendants obtaining pendency Cant knowledge action.v Also see v. Johnson, 365; Judg well 236 Mo. W. Am. 139 S. Jur. ments, p. Sec.
Appellants minors insist that’“the fact these were not informed entirely this proceeding and normal conduct consistent with.honest part Arnold”; that the intentions more than support alleged fraud amounts to no Of suspicion, the trial presumption”; insinuation or “mere ‘ Arnold to defraud of Frank part an intention presumed court1 Mont the title to had warranted . . . because his children and circumstances facts whether We determine gomery.” niust intent and of fraudulent inference legitimate which a from shown Stark, 248 Mo. Zehnder v. be drawn. purpose should 42, 71, 123 W. Hutton, 224 Mo. County Bank Savings 92; Ray trial chancellor from which the in the record was evidence There prose action was not find properly that the infer could use law plan was mere scheme good faith, but cuted in defendants of wrongfully deprive the of the court to processes ful having them estate without the described real their interest claim con action; and that the was opportunity real to defend law resorted for the the.machinery was in fraud and ceived what known to' be their taking the said children purpose Gabbert, supra. Fadler v. described real estate. lawful interest 366, 27 W. infer Leyh, 512. The Irvine Compare purposely kept minor defendants were ence could be drawn that the *8 proceedings; purpose that Mont the of ignorance merely to him of to Frank home was advise gomery’s visit Arnold’s plan and protecting plan and to seek his aid proposed Montgomery When visited Arnold' facilitate its consummation. with, that Arnold’s were direct conflict well knew interests children; any Arnold that, of the if there publicity, interest likely any prevent one of it could most be the to learn would action, proposed Arnold Montgomery While advised of his defense. such from children. the circum he concealed fact Arnold’s Under an can shown inference be drawn that the concealment was stances returned and willful and intentional. later told plan successfully completion, that had carried to he did been but While not advise the children. silence or concealment fraud becomes disclose, duty speak duty where a a legal ulent there is to may existing fiduciary relationship to disclose exist where there is .no special expressly between the and where no confidence is re duty posed. may to disclose arise from the circumstances case, inequality including superior of condition and the knowl edge party, one fair knowledge which is not within the and rea Cates, 24 party. Mo. 223, reach other McAdams v. sonable Duncan, 170, 226; 186; Barnard 38 Wheeler Missouri Pac. Co., 888, (2d) 579, 583; City 328 Mo. National Bank of Dry Co., 339, (2d) 69, St. Louis v. Carleton 334 Mo. W. Goods 67 S. Wonderly Lafayette 73(3); Co., 635, 650, 745; 150 51 S. W. 902, (Mo. App.), 692, 699; v. Duenke (2d) Vendt 210 S. W. Sec. 553, III, p. Pomeroy’s Equity (Fifth Edition) ; Jurisprudence Vol. Deceit, 23 Am. & 78; 245, Jur. Fraud 77 and Secs. 37 C. J. S. Sec. . Whether, a or to disclose exists and whether or 16(b) not duty not. circumstances amount to fraud must be determined facts particular 79, 856; of the 23 Am. & Deceit, p. case. Jur. Fraud Sec. 372; Gabbert, (63 49 C. supra J. S. See. Fadler v. S. W. (2d) 121, 130).
“It practiced directly to how fraud could be difficult see more rights a present keeping one entitled to court than ignorance him in proceedings. true It is most cases something directly of extrinsic fraud the defendant has said to the person amounting rights representations whose involved necessary person any it was such part proceed not to take in the ings. cases, In other acts have held to amount repre been to such allowing sentations. But the rule the maintenance of action strictly" for extrinsic fraud should not be limited so as to require a representations directly as basis evidence of made Dyson, (2d) 322, one defrauded.” Purinton v. 8 Cal. Pac. 113 A. L. R.
We think that under the facts and circumstances shown this imposed duty record law upon Montgomery to disclose the fact litigation of this to defendants therein and that the concealment thereof extrinsic constituted and collateral fraud. In view all evidence the inference could and should be drawn that service publication was selected and used device get valid service on defendants, concealing the minor but with the intent from them against the fact that action had been instituted an, pre- them and to having knowledge them litigation vent actual op- or portunity present It may defense. is well settled that fraud proven by Herrmann, be circumstances. Castorina v. 340 Mo. (2d) 297, 302; Epstein, W. Black v.
We are not unmindful of the fact there was testimony oral tending before the trial chancellor show that the action was *9 prosecuted good purpose, solely for an honest faith to correct a mistake of the scrivener of the and to make the deeds conform parties deeds; to the mutual intention of the and that service by publication good was selected and used faith as an incident to procedure, trial such brrt the chancellor refused accept to believe or theory finding facts in the case. that the The of fraud and procurement collusion in the is sustained record in the case. that
Appellants further contend “there is no competent or support finding material to of the trial evidence court that the through not 1915 deeds were drafted mistake that it was the convey E. Arnold the land to to Frank intent Sarah Arnold ’’ bodily heirs. governing proceeding to reform a The 'rules deed and quantum necessary to proof fully such reformation are reviewed not need (2d) 727 and (Mo. Sup.), v. Gholson in Feeler to ample evidence is that there Appellants here. insist repeated be on have been “written appear to reformation; the deeds support only in the grantee named warranty with the ordinary deed forms bodily heirs”; and his as “Frank Arnold premises of the deeds scrivener; that mistake of the made correct the attempts were in her conformity with the recital an affidavit grantor made and later sold mortgaged correction; Frank Arnold deed of thought he “had fee; he testified and that property as owner ’’ Montgomery. conveyed land to it, good when he title made deeds were tending show that-the We think the widow and children agreement between with accordance intentions conformity with the then Arnold, deceased, and in H. J. appellants. relied outweighs the evidence finding that “there evidence.fully chancellor’s sustains the This We made delivered.” deeds were at the time the no mistake refusing chancellor in action of the trial defer to the should and do setting former decree decree, entered, aside,; reformation, determining quieting as- title refusing reform the.deeds Bradley Van is affirmed. by defendants-respondents prayed Osdól, GC., concur. by Dalton, C., adopted opinion foregoing
PER CURIAM: The judges All concur. court. opinion of the as the for Erastus Trustee and Thornton Jennings, C. Erastus Collins Henry County, Court of Order of the Circuit Under Collins, C. E. Gaskill and W. Plaintiffs-Respondents, I. Missouri, W. Appellant, 40865 221 Defendants, I. E. No. Gaskill, Johnston, (2d) 181. April 11, One, 1949. Division Motion, May 9, Opinion Own Modified on Court’s Banc, Rehearing Opinion or to Transfer on Modified Motion for Overruled, June