45 Mo. 160 | Mo. | 1869
delivered the opinion of the court.
The plaintiffs bring fejectment against defendants, claiming-two-ninths in a twenty-acre tract of land in St. Louis eou-ntv, as= heirs of John, O’Reilly, deceased.
The case seems to have turned upon the validity and legal effect of the decree, and upon the notice to the plaintiffs of its existence. First, plaintiffs’ counsel contend that the decree itself was a nullity, and that it can hence be impeached collaterally. But the decree is not a nullity. It is true the petition hardly lays the foundation for the relief given; but the court had jurisdiction both of the subject-matter of the petition and the subject-matter of the decree. The object of the petition was for authority to raise money out of the land to pay the legacies, and the court added to the order sought, substantially, an election by the legatee to take the legacy and release the land, with an order carrying out that election. The court had a right to do both ; and, if the petition did not lay a foundation for both, the decree is simply erroneous, but can not be impeached collaterally. A judgment, though informal, even to the extent of granting a
Let it be considered, as the plaintiffs’ counsel claims, that the paper filed had not the requisites of a conveyance, still it was evidence of an election, and their appearance in court and the declaration there as recited in the decree was also an election, and the doctrine of election applies to just such a case as this. The record does not show what evidence was before the court, but there was enough to satisfy it that the testatrix had devised the interest of Virginia and Julia in certain lands to other members of the family, and had also devised to these, then unmarried, daughters $1,800 each in cash as their full share and just proportion of the lands. The testatrix, as the court found, did not intend these daughters to have the money and land too, but the money in lieu of land, and, it being inequitable for them to take both, they came into court, renounced the land, and filed an instrument in writing to the same effect.
The doctrine of election ordinarily applies to inconsistent or alternative donation, but it has also other applications. Swanson, in his note to Dillon v. Parker, 1 Swans. 894, so strongly commended by Story, says : “ The owner of an estate having, in an instrument of donation, applied to the property of another expressions which, were that property his own, would amount to an effectual disposition of it to a third person, and having by the same instrument disposed of a portion of his estate in favor of the proprietor, whose rights he assumed, is understood to impose on that proprietor the obligation of either relinquishing (to the extent of at least indemnifying those whom, by defeating the intended disposition, he disappoints) the benefit conferred on him by the instrument, if he asserts hismwn inconsistent proprietary rights, of, if he accepts that benefit, of completing the intended disposition by the conveyance in conformity to it of that portion of his property which it purports to affect.”
In Pemberton v. Pemberton, 29 Mo. 409, this court held that where a husband bequeathed to his widow a share belonging to his children, and made their children his residuary legatees, they
In the record under consideration, evidence dehors the will was doubtless received, but even if this were erroneous — upon which there are contradictory decisions — it would not make the election void. Eor purposes of this action, the proceeding and decree under them are to be treated as wholly free from error.
The character, then, of the attempted conveyance of Virginia Lount and her husband and Julia White, and its acceptance by Bowman while the election was being made, especially in connection with the fact that Bowman acted as a sort of attorney for them, drew and swore them to their answer, is very transparent. It was a gross and naked fraud attempted to be perpetrated upon the other heirs of Mrs. White, a contempt of the court in which the proceedings were pending, and possesses no validity whatever. Mrs. Lount attempts to excuse herself by saying that she was ignorant of the character of the paper, and signed it by direction of her husband, since dead. This, if true, may extenuate her criminality, but in no way affects the nature of the transaction.
The defendants insist, however, that John O’Reilly, from whom they claim, was an innocent purchaser, inasmuch as he had no notice of the decree, which was never recorded. There was a failure to put this decree upon the proper record, and that failure and its supposed effect was doubtless the cause of the purchase by,John O’Reilly. He employed his brother, one of the plaintiffs, to examine the records, who did not find it, and when asked why he did not look into the records of the Land Court, replied that it was not his business, intimating properly enough, in a proper case, that those records were not the place to look for record evidence of title. But what was the relation of John O’Reilly to this proceeding ? We have seen that Bowman was fully cognizant of the suit in the Land Court, and was a party to the fraud. O’Reilly was his clerk, and hence in confidential relations with him. No one would believe from that fact alone and from the further fact that the consideration was a nominal one compared with the value of the property, .that he did not
Upon trial below, under instructions of the court in regard to notice, the jury returned a verdict for defendants, and judgment was rendered upon it. Had those instructions been erroneous, the judgment, being so clearly for the right party, should not be disturbed. But the error in the instructions was really against instead of in favor of the defendants. The court went altogether too far in sustaining the plaintiff’s claim. The instruction holds that the deeds of Virginia Lount and Julia White to Bowman, and of Bowman to John O’Reilly made the plaintiff’s title good, “unless John O’Reilly, before the deed to him from Bowman was made and delivered to said O’Reilly had actual notice of the decree which has been read in evidence made m the suit of Thir-well, executor, &c., against Isaac White, or of the existence of said suit.”
The error of this instruction consists in the assumption that the deed of Virginia Lount and Julia White, pending the suit to which they were parties, had any validity whatever as against the other parties. It was a deed of a party pendente lite., and void. If Bowman had been an innocent purchaser, even he would have taken nothing by his deed, and could convey nothing. A contrary rule would make litigation endless. As well might the plaintiffs to this suit convey during its progress the premises in dispute to a third person, and compel the opposite party to litigate the matter over again. The authorities are clear and conclusive upon this point. The Master of the Rolls, in Winchester v. Paine, 11 Ves. 194, on page 197, says : “ Ordinarily, it is true, the decree of the court binds only the parties to the suit. But he who purchases during the pendency of the suit is bound by the decree
Judgment affirmed.