193 Mo. 365 | Mo. | 1906
— This is a bill in equity to reform a deed made on the 21st of February, 1898, by John T. Hendrickson and wife to George M. Siling, by having
There was a judgment for the plaintiffs, and the defendants, York and Mitchell, appealed.
THE ISSUES.
The petition states that on the 1st of November, 1892, Libbie S. Siling became the owner of lots 10, 11, 12 and 13 in block 12 in the town of Stewart City, commonly called Drexel, in Cass county, Missouri, as her separate property; that afterwards, on the 21st of February, 1898, Mrs. Siling and her husband, George M., conveyed said lots to the defendant Hendrickson; in consideration of which Hendrickson agreed and promised to sell and convey to Mrs. Siling the property here involved, subject to two deeds of trust thereon, aggregating $700; that Hendrickson undertook so to-do, but by mistake of the draftsman the conveyance from Hendrickson and wife was made to George M. Siling instead of to Libbie S. Siling; that said deed, so executed, was never delivered by Hendrickson to Mrs. Siling or to anyone else for her in her lifetime, and she never, in
The prayer of the petition is for a decree enforcing the contract, divesting title out of Hendrickson; setting aside the judgment in favor of Mrs. York against Mr. Siling, the execution and sale thereunder and the
The petition originally contained a second count in ejectment, hut on the 5th of January, 1903, the plaintiffs dismissed that count. The defendants York and Mitchell were personally served with a summons in the case. The sheriff’s return certified that Hendrickson could not he found in Cass county. There was an order of publication as to him, which was duly published, but he failed to appear and made default. The defendants, Mitchell and York, appeared and answered and defended the suit. Their answers were general denials, coupled with a special plea alleging the validity of the attachment proceedings and the title of Mitchell obtained thereunder; denying that Mrs. Siling bought the property from Hendrickson, or that Hendrickson agreed to make the deed to her but by mistake made it to her husband, and alleged the truth to be that the purchase price was paid by the husband and the deed made to him pursuant to contract, and that he was the real owner of the land at the time of the attachment and of the sale thereunder, and that the amount bid by Mitchell was applied to the payment of the debt from Mr. Siling to Mrs. York, and that Mr. Siling has made no tender of the amount so bid and applied, and is therefore not entitled to any equitable relief.
The defendants Mitchell and York further plead that George M. Siling was estopped because he had knowledge of the pendency of the attachment suit prior to the rendition of the judgment, and had actual knowledge that judgment had been rendered against the land and execution issued thereon, and that the defendant Mitchell had purchased the same upon execution, and that thereafter Mr. Siling refused to pay the taxes, or to pay the interest on the lien or mortgage on said land, and never made any demand on Mitchell for the posses
The reply is a general denial.
The case made is this:
About 1890, George M. Siling, with his wife and child, came to Drexel, Missouri, and purchased a piece of property and erected a building thereon for hotel purposes, and conducted a hotel, his wife assisting him in so doing. Afterwards he traded the hotel for a farm in Kansas, and then sold the farm. Afterwards, on the 1st of November, 1892, he used $2,500 of the proceeds of the sale of the farm for the purchase of lots 10, 11, 12 and 13 in Stewart City, commonly called Drexel, and had the conveyance therefor made to his wife, Libbie S. Siling. He afterwards built a house and store thereon, and with the remainder of the proceeds of the Kansas farm he purchased a. stock of goods, called a racket stock, and he and his family lived on the premises and carried on the business, his wife assisting therein. The defendant Hendrickson owned the sixty-seven-acre farm here in controversy, lying in Cass county. The parties agreed to exchange the town lots and house and store for the farm. Hendrickson says they valued the farm at $2,500, the town lots and residence at $1,200, and the stock of goods at $600, and as there was a mortgage of $700 on the farm, which Mrs. Siling was to assume, that made the value of the town lots, stock of goods and mortgage equal to the value of the farm. At that time Mrs. Siling was in very bad health; was suffering from consumption and little hope of her recovery was entertained. Mr. Siling, without the knowledge or consent of his wife, directed that the deed from Hendrickson to the farm be made to him, for the purpose, as he says, of holding it for the benefit of their child, Mamie Siling. Mrs. Siling executed the deed to the town property to Hendrickson, but according to the tes
It appeared from the testimony of Mitchell that prior to the sale he had an interview with the attorney of Mrs. York, wherein the attorney stated that Mrs. York was only interested in having the property bring the amount of her judgment, with costs and interest, and would not bid at the sale beyond that amount. It also appeared from Mitchell’s testimony that he agreed with Dr. Bennett, that if he could get a good title to the land for the amount of the judgment, interest and costs, and if Dr. Bennett would not bid at the sheriff’s sale for the land, he (Mitchell) would pay Dr. Bennett the sum of $37.50.
Upon this showing, the chancellor entered a decree for the plaintiffs, vesting the title in Mamie Siling and divesting it out of Hendrickson and Mitchell, and, as nearly as can be ascertained from the briefs, for the judgment itself is not set out in the abstract of the evidence, also ordered the defendant Mitchell to turn over the possession to Mamie Siling. What other order was contained in the decree is not clear from the abstract in this case, and in the absence of the full terms of the judgment, it is impossible to definitely determine. From this decree Mitchell and Mrs. York appealed.
I.
On the 1st of November, 1892, Mrs. Libbie S. Siling acquired the title to lots 10, 11, 12 and 13 in block 12 in Stewart City, commonly called Drexel, Cass county, Missouri. The consideration for the purchase thereof was paid by her husband. The general rule of law is that where a husband buys property and has
Mrs. Siling never knew that the title had been taken in the name of her husband and died in ignorance of that fact. She never, in writing or in any other manner, gave her husband any authority so to do. She, therefore, might, if she had lived, have compelled him to convey to her, or to be declared a trustee for her benefit, but dying in ignorance of the fact she did not do so. The deed from Hendrickson to Mr. Siling was not placed on record until just before the institution of this suit, on the 25th of September, 1902. At the time
II.
The next question which presents itself for adjudication is whether or not, under the circumstances státed, the. attachment and judgment thereunder passed a good title to the defendant Mitchell.
It is conceded and uneontradicted that from May, 1898, until September, 1902, Mr. Siling was a non-resident of the State of Missouri. The York suit against him was by attachment. He was not personally served, nor is there any substantial evidence in the case that he ever knew that such a suit had been instituted against him, or that the judgment had been entered, or that the land had been sold until December, 1901, about sixty days after the sale of the land under the attachment judgment. He was notified only by publication. The title acquired by Mitchell at that sale, therefore, depends upon the validity of the attachment proceedings. The sheriff in levying the attachment complied with the requirements of section 543, Revised Statutes 1889, being now paragraph 3 of section 388, Revised Statutes 1899, except that he did not give notice
The point here involved, and the construction of the statute applicable to such cases, underwent adjudication by this court in Walter v. Scofield, 167 Mo. l. c. 553, and the previous decisions of this court were there analyzed, with the result that it was held that the circuit court never acquired jurisdiction in the attachment case, and that the judgment and sale thereunder, and the subsequent conveyances arising* therefrom were void. In respect to the consequences to the purchaser at such a sale, that case was a much stronger case in favor of the purchaser than is the case at bar, for in that case a third person, an entire stranger to the transaction, became the purchaser, and afterwards other third persons became part owners of the property; while in the case at bar the purchaser was the tenant in possession, and therefore more closely identified with the title. In addition to this, the purchaser in this case, the tenant in possession, has not, by his conduct, entitled himself to any consideration at the hand of any court, for whilst he says he knew of the institution and progress of the attachment suit, and whilst he says he wrote a letter to Mr. Siling before the judgment was entered, telling him of the suit, still, neither the letter nor a copy thereof was preserved or introduced in evidence, and his testimony as to the contents of that letter is not at all persuasive or convincing that he ever wrote such a letter, or if he did write a letter, that it contained information of the institution of the suit. In addition to which, his conduct after the judgment was entered, and prior to the sale, in promising to give Dr. Bennett $37.50 if he would not bid against him at the sheriff’s sale, tends strongly to compel a conviction that instead of notifying the owner of the pendency of the suit or of the judgment or contemplated sale, he was actively engaged in an attempt to procure the title to the property
The defendants seek to avoid the effect of the defects in the proceedings in reference to notice, and of the rule declared in Walter v. Scofield, supra, by showing that although the sheriff did not notify the tenant, as the statute requires, still the tenant had actual notice of the pendency of the suit prior to the rendition of the judgment, and therefore the requirements of the statute were met.
This contention, however, is untenable.
It might with equal propriety be claimed that a court acquired jurisdiction of a. defendant, who had not been brought into court by any sort of process, by showing, dehors the record, that the defendant actually knew there was a suit pending against him. The requirements of the statute are mandatory, and this is so for wise reasons, to-wit, that the record shall affirmatively show that the notice that the law requires was served upon the defendant, and that the matter of whether or not a defendant had notice should not be allowed to rest in parol, nor subject to the temptation of perjury, not implying, however, the existence of such conditions in this case. It was pointed out *in Walter v. Scofield, supra, that the notice to the tenant in possession was as essential to conferring jurisdiction in attachments against non-residents, as was the publication of the notice in the papers, and it was said that the notice to the tenant would probably be a better notice to the owner than the publication, for presumably the tenant would notify the owner. Generally the presumption would obtain, but the facts in this case clearly show that even presumptions of law may not always consist with actual facts, and that tenants may be found, like the tenant Mitchell, who would fail to notify the landlord, for ulterior purposes of their own. It is no answer to this to say that if the notice had been served, the tenant
It follows from the foregoing that the circuit court never acquired jurisdiction in the attachment suit of York v. Siling, and that all the proceedings therein, including the judgment and the sale by the sheriff, and the sheriff’s deed to Mitchell, were absolutely void.
This leaves the case, therefore, the same as if there had never been an attachment suit, or a sale thereunder, and the same as if it was a suit against Hendrickson and George M. Siling and Mamie Siling for the reformation of the deed from Hendrickson to Siling.
It is true, as defendants claim, that the bill alleges that the contract was that the deed should be made to Mrs. Siling, and that by mistake of the scrivener, Mr. Siling was named as the grantee, and that the evidence shows that Mr. Siling directed the deed to be made to him. But it does not follow, as defendants claim, that for this reason all relief should be denied to Mamie Siling, the heir of Mrs. Siling. The facts established clearly show that Mrs. Siling never knew that the deed had been made to her husband instead of to her, and that she never authorized the deed to be made in that way. If she was still alive there can be no doubt that she could mairitain an action against Mr. Siling and Mr. Hendrickson for the reformation of the deed and have it corrected so as to vest the title in her and divest it out of her husband; and Mamie Siling, her heir, has the same rights as her mother would have had. Neither is it at all important or material that Mr. Siling purchased the property with his own money, for1 he gave it to his wife at a time, when, in law, he was entitled to do so without defrauding any existing creditors. When, therefore, the exchange of the property was made and Mr. Siling took the conveyance in his own name instead of in his wife’s name, he became a mere trustee for her benefit. In other words, her property was given in exchange for this property, and therefore a resulting trust was created in her favor by operation of law, and Mr. Siling became simply the trustee of the property. Abundant facts are stated in the petition upon which to predicate relief upon this ground, and therefore the failure to prove the allegations of the
IV.
The defendant Mitchell, however, claims that the amount he paid for the property at the attachment sale has not been tendered to him, and that relief cannot be accorded the plaintiff, in equity, in the absence of such a tender.
Two all-sufficient reasons suggest themselves why this contention should not be allowed, to-wit: first, this is purely a suit by Mamie Siling to recover property which, of right, belongs to her, and she owed Mrs. York nothing. Therefore, the money paid by Mitchell for the purchase of the property did not go to extinguish any debt that Mamie Siling owed. Mamie Siling could have maintained this action against her father and the other defendants as defendants, and would have been entitled to the relief sought without tendering to Mitchell any sum which he had paid for the land and which had been applied to the extinguishment of her father’s debt to Mrs. York. Instead of making Mr. Siling a party defendant, he was made a party plaintiff, but that does not alter Mamie Siling’s rights in the case. Second, but even if this were an action by Mr. Siling, it cannot be fairly said that the conclusion reached by the trial court was erroneous because it did not require Mr. Siling to refund to Mitchell the amount he had paid at the sheriff’s sale for the property. The best complexion that can be put on the case is that there was a conflict in the testimony between that of Mr. Siling and of Mitchell as to whether or not Mitchell notified Mr. Siling of the pendency of the suit before the judgment. The chancellor believed Mr. Siling’s testimony. Much of the evidence that was produced before the trial court, including the correspondence,. is not embodied in the abstract of the record. Therefore this court cannot adjudge the trial court
There is no evidence whatever of any estoppel or ratification by Mr. Siling, and there could be none as to Mamie Siling for she is still a minor, therefore, the plea of estoppel and ratification is without merit in this case.
For the foregoing reasons the judgment of the circuit court is affirmed.