McClanahan v. West

100 Mo. 309 | Mo. | 1889

Sherwood, J.

This proceeding, an equitable one, was instituted by plaintiffs in May, 1885, whereby they sought to set aside and hold for naught a judgment and sale in partition, the sheriff’s deed and subsequent conveyances, on various grounds set forth in the petition which iji substance alleged: William K. Anthony died in 1858, the owner of the land described in the petition; that he left as his only heirs at law, Robert Gf., Marion, George, Jackson, Lewis, Lillie, and Nancy T.; that soon after the death of said William K. Anthony, his daughter Marion married Thomas West; that in 1854 a proceeding was begun in the circuit court of Jackson county for the partition of these lands, to which all the heirs were made parties; that at the March term, 1855, an order of sale of the lands was made by the court, and at the March term, 1857, the sheriff filed his report of sale, which was presented to be confirmed.

It is alleged that the judgment and proceedings are void on their face; that said Thomas West pretended to purchase said lands at said sale for a nominal price; that the plaintiff Nancy T., who some time before the bringing of this suit married her co-plaintiff McGlanahan, had no notice of the pendency of said partition proceedings, that she was not served with any process, and as to her they were void.

That the suit was instituted by the said Thomas West who conspired with Robert, one of the Anthony heirs, to cheat and defraud the plaintiff Nancy out of her share of her father’s estate; that she was then a small girl, and after the close of the war she inquired of Thomas West, and his wife Marion, what had been done with her father’s land, and was told by them that it had been sold for debt, and that West had bought it at sheriff’s sale. It is further alleged that she believed these statements and placed special trust and confidence in them, and was thus thrown off her guard and prevented from making further inquiry.

It is further alleged that West made these false representations with the view to cheat and defraud the plaintiff, and that in order to conceal his deceit and fraud he forbade intercourse with her relations and friends and induced others to keep quiet, and, lest she might discover the fraud, he sent her into Morgan county, telling her that there was a little money coming to her from her father’s personal estate, and that her guardian would send it to her when she arrived at her majority.

It is further alleged that plaintiff Nancy never learned of said fraud and concealment until within two years immediately preceding the filing of this petition, when a copy of the petition filed by the Kansas City Belt Railway Company for a condemnation of a part of the land was served upon her. This aroused her suspicions.

It was further stated that Thomas West died in 1873. The petition further states that her guardian, at his settlement in 1870, asked her for receipts, which she gave, but she disclaims any knowledge of their purport; she alleges that she did not understand that she was receipting for her share of her father’s land, and she asks if any receipt or conveyance of her share in her father’s land is offered in evidence it may be declared void, as she supposed she was receiving only her share of her father’s personal estate.

It is further alleged that said partition suit was never prosecuted to a final end; that the record shows that no order of distribution was ever made, and that no deed to the purchaser under the sale therein appears to have been acknowledged in open court as required by law.

The heirs of Thomas West are made parties to the bill, and it is alleged that the widow Marion and the children have sold part of the-lands to defendant Shaeffer, who purchased for defendant Blair.

Allegation is further made that West in his lifetime, and his widow and children since, have pretended to purchase or have caused to be purchased by others for their benefit the interest of the heirs of the said William K. Anthony, except that of the plaintiff Nancy, and that they tried to purchase hers, and by so doing admitted her right to one share, as tenant in common, to one-seventh of the lands.

It is further alleged in the bill that the decree in the partition suit is incomplete, fraudulent and void, and that all mesne conveyances from the pretended sale thereunder are fraudulent and void, and plaintiffs claim ■ that they are entitled to the possession of the one undivided one-seventh part of said lands and pray for a decree of possession.

Further prayer is that the said judgment in partition and the sale made in pursuance of the same, and the deed be declared null and void, and be set aside especially as to them; that all intermediate conveyances be declared fraudulent, null and void, especially as to the plaintiffs; and that the possession of the undivided one-seventh part of said lands be adjudged to the plaintiffs, and for other relief.

The answers of the adult defendants were in fact or in effect: First. General denials. Second. Pleas of the statute of limitations. Third. An estoppel arising from the receipt by the plaintiff Nancy after she arrived at her majority, with full knowledge of the facts of her proportion of the proceeds of the partition sale. The replies were general denials. The answer of the guardian ad litem of the minors was as usual in such cases. Having heard the testimony in the cause, the lower court dismissed the petition and plaintiffs brought error.

The petition in this cause does not charge that any fraud was used in obtaining the judgment of partition; if this had been done, if it had been charged that fraud was used in the very “ concoction ” of that judgment, it would have been admissible to establish such fraud in the present proceeding; regarding it, in that event, as a direct attack on that judgment. Bigelow on Fraud, 86, 87, 88, 90, 94, 95, 636; Bigelow on Estoppel [3 Ed.] 162, 163; Payne v. O’Shea, 84 Mo. 129.

The authorities differ on the point whether a judgment can be attacked collaterally for fraud, or whether it can alone be done in a direct proceeding. Very strong reasons may be urged in behalf of either view. Bigelow on Fraud, 86, 87, 88, 90, 94, 95, 636; Bigelow on Estoppel, 161, 162, 163, 164. The eminent author just cited holds that no just distinction can be taken between the right of a party injured, to attack “a judgment concocted in fraud,” whether such attack be directly made or made collaterally. Bigelow, Estop. 164. But it is unnecessary to rule the point now, for the obvious reason that there is no tendency in the testimony adduced by plaintiffs to show fraud in the proceeding or concoction of the judgment, nor of any connection of the defendants therewith. This being the case, parol testimony was wholly out of place to show that plaintiff Nancy had not been served with process in the partition suit. And this is true notwithstanding that the judgment in that suit is silent as to the acquisition of jurisdiction by service of process upon her.

A domestic judgment, rendered by a court of general jurisdiction, cannot be impeached by the parties to it merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally as conclusive on the parties thereto, whether it recites, or whether it fails to recite, that jurisdiction has been acquired. Nothing shall be intended to be out of the jurisdiction of the superior court, but that which specially appears to be so. Freeman on Judg. [3 Ed.] sec. 132; Crepps v. Durden, 1 Smith’s Leading Cas. [8 Ed.] part 2, 1137 and cas. cited; Freeman v. Thompson, 53 Mo. 183; Lackland v. Stevenson, 54 Mo. 111; State v. Williamson, 57 Mo. 192; Huxley v. Harrold, 62 Mo. 516; Gates v. Tusten, 89 Mo. 13; Jeffries v. Wright, 51 Mo. 215; Hallowell v. Page, 24 Mo. 590.

But though parol testimony was wholly inadmissible for the purpose aforesaid, yet it was competent to supply the missing files in the partition cause. Such files could be supplied by pursuing the method pointed out by the statute, or, as at common law, by proving their loss, and then proving their contents, or any material parts thereof. For this reason it was that the affidavit filed by the defendants for a continuance on account of the absence of the witness, C. J. Bower, was properly admitted in evidence to show that the missing files in the partition cause showed the service of process on plaintiff Nancy, thus establishing that there was nothing in the lost files at variance with the presumptions incident to, and attendant on, the doings of a court of general jurisdiction. These files, if in existence, could .have been used to contradict the record, if at variance therewith, and to show that no jurisdiction had been acquired; even as against jurisdictional recitals in the record (Cloud v. Inhabitants, 86 Mo. 357, and cas. cited; Milner v. Shipley, 94 Mo. 106; Blodgett v. Schaffer, 94 Mo. 652; Adams v. Cowles, 95 Mo. 501); and, for the same reason, secondary evidence of their contents, when lost, was admissible, though if no such secondary evidence had been introduced, those favorable presumptions which. always attend the acts and doings of a court of general jurisdiction could still have been invoked in behalf of the judgment in question.

It is claimed, however, by plaintiffs that this affidavit was improperly admitted in evidence, and when it was offered to be read the plaintiffs objected; but they were in no position to object after they had agreed to admit the affidavit to be read in evidence “for the purpose of a trial.” Having done this, having thereby cut off the defendants from obtaining a continuance which otherwise would have gone, they are clearly estopped from now assigning as error what beforehand they agreed should be done.

Parties litigant are not allowed to trifle with the court or with each other; they are not allowed to assume inconsistent positions. Having made their election, and thereby caused their adversary to elect to pursue a certain course, they cannot, after such a course has been pursued at their instance, take advantage of it, deny its validity, and thus “tread back and trip up the heels” of their adversary. Slack v. Lyon, 9 Pick. 62; Brown v. Bowen, 90 Mo. 184; Bigelow on Estoppel [3 Ed.] 562, 601, 602, and cases cited.

This conclusion renders unnecessary any discussion of the validity of the statute which authorizes the affidavit for a continuance in a civil cause to be read in evidence. But, for the sake of argument, it might be granted that the parol evidence, introduced to show that no service of process was had on plaintiff Nancy, was competent, and still the result reached by the trial court could not be suc'cessfully questioned, since the great weight of the evidence shows that due service of process was had upon plaintiff Nancy, as well as upon the other three minors; this is established in the most pronounced manner, not only by the parol testimony, but by the sheriff’s book, showing service on the minors, as well as by the testimony of the sheriff himself, whose deputy served the process and made report to him when he made the charges in his book, as was his custom. Besides, the record itself shows that George W. Buchanan was appointed guardian ad litem for the four minors' and that he filed answers for them. Prom which statements it will be presumed that the proper service was had upon the minors, and that the court, cognizant of this fact, thereupon appointed the guardian ad litem; and it will be presumed, also, that the attorney then appointed guardian ad litem would not have filed an answer for minors who had not been personally served, as required by law. And then there are the receipts given by the minors, and by the plaintiff herself, after she attained her majority, when acting in the presence, and under the advice, of her counsel, for her share of the proceeds of the sale in partition. If she knew from what source these proceeds came, and still receipted for them, and there is good reason to believe she did know, she certainly would not be allowed to repudiate the transaction now, even if the partition proceedings were, in fact, void. She certainly could not have both the money and the land. Austin v. Loring, 63 Mo. 19, and cases cited.

It is charged in the petition that the partition proceedings are void on their face. If this is true,' the plaintiffs have stated themselves out of court; for in such case the remedy at law by action of ejectment would be adequate and ample. But we have discovered nothing in the proceedings which- varies from the requirements of the law as then in force. The order of sale was properly made, the rights of the parties being therein determined and adjusted; and if the judgment was rendered at the first term of the court after service had, this was but an irregularity, not going to the jurisdiction of the court. And the sale of the property was duly made; the deed of the sheriff executed and acknowledged, and the sheriff who conducted the sale made proper report thereof to the court which was approved by the court, and this was all that was necessary in such cases. If the sale of the land was valid, of course this ends the matter of the plaintiff’s claim for relief on that point; but looking over this whole record, we find nothing to induce the belief that the plaintiff Nancy has been defrauded in the slightest particular, or that any fraud, whatever, was practiced upon her. No one can read this record with any degree of attention without being impressed with the idea that this litigation originated in the fact that the land in question sold in the partition suit in 1855 for a small sum, but was worth when this proceeding was instituted some nine hundred dollars per acre; this appears to be all the fraud there is in this case. And it is to be distinctly understood that this court views with disfavor proceedings like the present, instituted nearly the life of a generation after the transactions on which they are supposed to be based occurred, and which, if successful, to paraphrase the strong language of Judge Scott on one occasion, would “make the dead sin in their graves.” See State ex rel. v. West, 68 Mo. 229; Lenox v. Harrison, 88 Mo. 491; Burdett v. May, ante, p. 13.

It is said that the judgment in .this cause is erroneous because rendered against the plaintiff Nancy, a married woman. This error can be easily corrected by striking out her name from that portion of the judgment for costs. Cruchon v. Brown, 57 Mo. 38; Weil v. Simmons, 66 Mo. 617; Mueller v. Kaessmann, 84 Mo. 330; Wescott v. Bridwell, 40 Mo. 146; Shaw v. Davis, 55 Barb. 389; Cent. Law Journ. 1886, 553; Hunt v. Railroad, 89 Mo. 607; Byerly v. Donlin, 73 Mo. loc. cit. 272.

We affirm the judgment.

All concur, except Brother Bakclay,

who holds that all the former decisions of this court already cited, on jurisdictional points, should be overruled, and this reason only allows him to concur in the result.