48 Mo. App. 345 | Mo. Ct. App. | 1892
This is a suit in equity to' set aside a judgment of the probate court of Franklin county, allowing in favor of the defendant a demand against the estate of Mary I. Link, deceased, in the sum of $685, on the ground that said judgment was concocted by the defendant and others through fraud. The plaintiffs had a decree in the circuit court, and the defendant appealed to this court.
The first objection made by the appellant is that the petition states no cause of action. The objection is not well taken. It is to be.observed, in considering it, that no objection was taken to the petition in any way in the court below, whether by motion in arrest of judgment or otherwise; but that its allegations were traversed, and that the parties, went through trial thereon, and that it subserved every office of a pleading in that it has fully notified the defendant of the grounds-of action against him. Its essential allegations are-that Mary I. Link died intestate on the twenty-eighth day of March, 1886, leaving certain real estate in the-counties of St. Louis and Franklin, described by metes and bounds, and leaving as her heirs-at-law the plaintiffs, William A. Link, A. J. Link, Anna B. Link and Addie L. Owen, — the plaintiff, B. L. Owen, who is the-husband of Addie L. Owen, being joined for conformity; that the plaintiffs first named and the defendant are the
The objections to this petition are, first, that it does not plead any fact constituting fraud, but pleads only conclusions; and, secondly, that it does not show any diligence on the part of the plaintiffs or their counsel. We are of opinion that the petition, in charging a fraudulent concealment of the existence of an unfounded claim, subsequently exhibited, sufficiently charged a fraudulent concoction of the judgment, and, in charging a prior and subsequent concealment, showed a sufficient excuse of any want of diligence on the part of the plaintiffs in moving earlier to have the claim set aside. It was thus stated by Chancellor Kent in Duncan v. Lyon, 3 Johns. Ch. 356: “It is a settled principle, that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report, by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party, umnixed with negligence or fault on his part.” This language has been quoted with approval by our supreme court. Ritter v. Press Co., 68 Mo. 458; Carolus v. Koch, 72 Mo. 647. In our opinion the petition clearly states facts taking the case out of this rule. It shows that the defendant was. the general administrator of the estate, and that the plaintiffs were the co-heirs with the defendant of the estate, and hence beneficiaries therein; and the'lep"d inference is that he stood in a relation of trust ana coniiaence toward them; it then
The next objection is that there is no evidence to support the judgment. This objection is equally untenable. We concede the proposition of law contended for by counsel for defendant, that the fraud which will warrant a court of equity in enjoining a judgment at law must not merely be a fraud in the claim which has ripened into a judgment, but that it must be a fraud in the procurement of the judgment itself; in other words, it must be, as is sometimes said, a fraud in the very concoction of the judgment. The rule is very well expressed ■by Mr. Justice Story : “ Where a judgment is attacked ■ and sought to be set aside for fraud, the fraud must have been practiced in the very act of obtaining the .judgment, or else it will be concluded by the judgment at law, where fraud is equally a defense as in equity.” The rule is further expressed by Black, J., in a recent ■case (Murphy v. DeFrance, 101 Mo. 157) thus: “A :judgment procured by fraud may, of course, be set aside in equity, but the' fraud, because of which such relief is granted, is one in procuring the judgment. As has been said by this court: Courts of equity will not vacate or enjoin a judgment merely because based on a •cause of action which may be vitiated by fraud.” If the cause before us does not present a state of facts invoking the exercise of the jurisdiction of equity to set aside a judgment, concocted by fraud, within the-rule ■thus stated, then the jurisdiction does not exist at all.
The only substantial conflict in the evidence relates to the amount which the defendant realized from working the farm of his mother during the five years for which he preferred his claim, and what was done with the money which he thus realized. His own evidence
But it is argued that the defendant was not guilty of any fraud toward his co-heirs in concealing from them the fact of his intention to prefer this claim against the estate, in failing to give them notice of his making the claim, and in concealing from them the .fact that the claim had been allowed, because the law does not entitle the heirs to notice of claims preferred against the estate for allowance. This is true; but, nevertheless, we are of the opinion that circumstances may exist, where the principles of honesty and fair dealing raise the legal duty on the part of the administrator of giving notice to those immediately interested in the estate. Such, we think, was the case. The defendant was not estopped from exhibiting his claim against the estate although he gave the plaintiffs to understand that no such claim existed ; but if, after such statement, he concluded to prefer a claim, it was his legal duty to advise them of such intention, so as to give them opportunity to resist it, if so advised. His failure to do so was, under the circumstances, a fraudulent concealment, and as such evidence of a fraudulent concoction of the judgment. He had opportunities every day of communicating with them and informing them of his intention to prefer it.
A motion has been made by the respondent to tax the sum of $40 against the appellant for an amended bill of exceptions, which the respondent was obliged to go to the expense of drawing up and presenting to the judge, in consequence of the fact, that the appellant presented and procured the signature of the judge in the first instance to a bill of exceptions which did not •set out the evidence according to the stenographer’s report, but which set it out only in a condensed and summary manner. We do not regard this as a matter coming within our appellate jurisdiction. It is a question relating to the taxation of costs in the circuit court, with which that court must deal in the first instance, before it can be made the subject of a review in an appellate tribunal. We are not called upon to express ■our opinion as to whether or not the respondents are
The judgment of the circuit court will be affirmed. It is so ordered.