Charles v. White

• Decision Date: 25 July 1908
• Citation: 112 S.W. 545,214 Mo. 187
• Parties: BETSY ANN CHARLES et al., Appellants, v. THOMAS WHITE et al.; BETSY ANN CHARLES et al., Appellants, v. GEORGE A. NEILL et al
• Court: Missouri Supreme Court

112 S.W. 545

214 Mo. 187

BETSY ANN CHARLES et al., Appellants, v. THOMAS WHITE et al.; BETSY ANN CHARLES et al., Appellants, v. GEORGE A. NEILL et al

Supreme Court of Missouri, Second Division

July 25, 1908

Appeal from Newton Circuit Court. -- Hon. F. C. Johnston, Judge.

Reversed and remanded.

Horace Ruark and Sturgis & Geyer for appellants.

(1) That the deed from Stephen D. Sutton to his five daughters named therein "and the heirs of their bodies forever," conveys, under our statute abolishing fee tails, a life estate to the grantees named with a remainder over to their respective children born and to be born, is elementary law. Tiedeman, Real Property, sec 47; Jones, Real Estate in Conveyancing, sec. 613, p. 505; Bone v Tyrrell, 113 Mo. 175; Phillips v. La Forge, 89 Mo. 75; Wood v. Kice, 103 Mo. 329; Reed v Lane, 122 Mo. 311; Godman v. Simmons, 113 Mo. 122; Clarkson v. Clarkson, 125 Mo. 381; Emmerson v. Hughes, 110 Mo. 627; Utter v. Sidman, 170 Mo. 284. (2) The fact that Sutton's deed to his daughters was made in fraud of creditors, made it void only as to such creditors as might attack it. "No rule of law is more firmly established than that a transfer of property made in fraud of creditors, while void as to them, is binding upon the parties thereto and those in privity with them." 14 Am. and Eng. Ency. Law (2 Ed.), 273 and 280; 20 Cyc. 419, 608 to 615; Stevenson v. Edwards, 98 Mo. 622; Whittaker v. Whittaker, 157 Mo. 353; George v. Williamson, 26 Mo. 190; Larimore v. Tyler, 88 Mo. 661; Van Winkle v. McKee, 7 Mo. 435; Sell v. West, 125 Mo. 628; Thomas v. Thomas, 107 Mo. 459; Hall v. Callahan, 66 Mo. 316; Bump, Fraudulent Conveyances (2 Ed.), pp. 436 and 451. (3) Although a judgment or decree in a creditor's bill brought to set aside a conveyance, annuls, sets aside and makes void the conveyance, such judgment is restricted to the purpose of the suit and the parties to it. Such judgment makes the conveyance void only as to the creditor attacking it, and only for the purpose of collecting his debt. "If a conveyance is set aside by the creditors of the grantor it is set aside only as to such creditors and does not operate to revest title in the grantor, his heirs or any one claiming under him." 20 Cyc. 617; Stevenson v. Edwards, 98 Mo. 622; Mundy v. Vail, 34 N. J. Law 418; Barnes v. Railroad, 122 U.S. 1; Graham v. Railroad, 70 U.S. 704; Bell v. Wilson (Ark.), 5 L. R. A. 370; Bohn v. Weeks, 50 Ill.App. 236; Keeton v. Bandy (Ky.), 74 S.W. 1047. "A decree avoiding a deed as to creditors of the grantor leaves the deed operative between the parties. Such a decree is a decree sub modo and binding only as to such creditors." 20 Cyc. 821; McDowell v. McMurria, 107 Ga. 812; Norton v. Norton, 5 Cush. (Mass.) 524; Knapp v. Crane, 73 N.Y.S. 513; Alred v. Smith, 135 N.C. 443. (4) When a decree is rendered declaring a conveyance fraudulent and void in a creditor's bill, the grantee has his option to pay the amount ascertained to be due and keep the property or let the property sell to pay same. If he pays the claim the decree is satisfied and is no longer of any effect on the conveyance. Bump, Fraudulent Conveyances (2 Ed.), p. 550; Rawson v. Fox, 65 Ill. 200; Bostwick v. Menck, 40 N.Y. 383; 20 Cyc. 822; Wait, Fraud. Convey., sec. 171; Needles v. Ford, 167 Mo. 510; Stevenson v. Edwards, 98 Mo. 625; Railroad v. Soutter, 80 U.S. 517. It is the sale thereunder and not the decree setting aside the conveyance that divests the grantee of title. Mundy v. Vail, 34 N. J. Law 418; Bell v. Wilson (Ark.), 5 L. R. A. 370; Kerr v. Hutchins, 46 Tex. 384. (5) The Rutledge judgment is not res adjudicata upon the parties hereto for the reason that the court had no power under the pleadings and issues presented to divest the remaindermen of title and vest the same in the life tenants. No such question was submitted to the court and its action in attempting to adjudge something not at issue was void. Booger v. Frazier, 99 Mo. 325; 1 Black on Judgments, sec. 242; 2 Black on Judgments, secs. 618, 619; 24 Am. and Eng. Ency Law, 768, 775; 23 Cyc. 684, 1235, 1317; 1 Freeman on Judgments, secs. 118-120; 1 Herman on Estoppel, 62; Biglow on Estoppel, 92; 7 Ency. of Evidence, 801; Munday v. Vail, 34 N. J. L. 418; Hope v. Blair, 105 Mo. 85; Nemo v. Railroad, 105 Mo.App. 551; Graham v. Railroad, 70 U.S. 704; Reynolds v. Stockton, 140 U.S. 254; Barnes v. Railroad, 122 U.S. 1; Sache v. Gillette, 112 N.W. 386; Spoors v. Coen, 44 Ohio St. 497; Ransom v. Fox, 65 Ill. 202; McFadden v. Ross, 108 Ind. 512; Waldron v. Harvey, 54 W.Va. 608; Reynolds v. Stockton, 43 N.J.Eq. 211; Metcalf v. Hart, 3 Wyo. 513; Knopf v. Morel, 111 Ind. 570; Unfried v. Heberer, 63 Ind. 67; Knapp v. Crane, 73 N.Y.S. 513; Strobe v. Downer, 13 Wis. 11; Bogess v. Scott, 37 S.E. 709; Fithian v. Monks, 43 Mo. 502; Fish v. Lightner, 44 Mo. 269; Owens v. Link, 48 Mo.App. 534; Wilson v. Lubke, 176 Mo. 210; Garland v. Smith, 164 Mo. 1; Williams v. Monroe, 125 Mo. 588; Bell v. Wilson (Ark.), 5 L. R. A. 370; McDowell v. McMurria, 33 S.E. 709; Windsor v. McVeigh, 93 U.S. 274; 20 Cyc. 821; Alred v. Smith, 135 N.C. 443. (6) The judgment in the case of Thomas Rutledge v. Betsy Ann Charles et al., is not res adjudicata upon the issues herein for the reason that the life tenants under the Sutton deed were not adversaries to the infant remaindermen, but co-defendants with them. In order for a judgment to bind parties as res adjudicata they must have occupied adversary positions at the trial upon issues formed between them by the pleadings. McMahan v. Geiger, 73 Mo. 145; State Bank v. Bartle, 114 Mo. 276; Comstock v. Keating, 115 Mo.App. 372; O'Rourke v. Railroad, 142 Mo. 342; Cormody v. Hanick, 85 Mo.App. 659; Springfield v. Plummer, 89 Mo.App. 530; 24 Am. and Eng. Ency. Law (2 Ed.), 731; 23 Cyc. 1279; 1 VanFleet's Former Ajudication, secs. 229, 256; 1 Freeman on Judgments, sec. 158; Corl v. Riggs, 12 Mo. 430; Rudd v. Cornell, 171 N.Y. 114; Finley v. Cathert, 149 Ind. 470; Bank v. Bartsch, 51 Minn. 474; Beronio v. Lumber Co., 129 Cal. 232; Goff v. Hathaway, 180 Mass. 497; Eikenberry v. Edwards, 71 Iowa 82; Buffington v. Cook, 35 Ala. 312; Smith Bros. v. Railroad, 109 La. 782; Gardner v. Raisbeck, 28 N.J.Eq. 71; Kent v. Kent, 82 Va. 208; Koelsch v. Mixer, 52 Ohio St. 207; Hoxie v. Bank, 20 Tex. Civ. App. 462; Keagy v. Bank, 12 Okla.Terr. 33; Cleveland v. Chambliss, 64 Ga. 352; Bigelow on Estoppel (5 Ed.), 101; Cushing v. Laird, 107 U.S. 69; Jones v. Vert, 121 Ind. 140. (7) The force and effect of a judgment is not enlarged by the fact that it was rendered by consent. Holmes v. Guion, 44 Mo. 164; Short v. Taylor, 137 Mo. 517. Especially is this true where the minors' consent is by guardian ad litem who was at the time attorney for the consenting adult life tenants whose life estate was attempted to be enlarged to a fee. (8) Stephen D. Sutton is the common source of title. The plaintiffs claim under him as remaindermen in his deed to his daughters. The defendant by his answer says he has "by appropriate deeds and mesne conveyances taken and derived the whole of all the estates and titles of the said Sutton heirs." He put in evidence an unbroken chain of title from the Sutton heirs (life tenants) to himself, and claims in himself and grantors continuous possession for over thirty years. In suits to determine title under section 650, Revised Statutes 1899, the same rule prevails as to the common source of title as in ejectment; any defects in the common source of title are immaterial. Harrison Machine Works v. Bowers, 200 Mo. 219; Graton v. Land Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698; Sedgwick and Wait on Trial of Title (2 Ed.), sec. 803; Sell v. McAnaw, 138 Mo. 272. (9) The possession of the life tenant or his grantee is the possession of the remaindermen and for their benefit. Any outstanding title or adverse interest acquired by the life tenant or his grantee while holding such possession, either by limitation or deed, inures to the benefit of the remaindermen and cannot be used to defeat the remaindermen's title. The only right of the life tenant in such case is to require contribution as to the purchase price paid, if any. Coke on Littleton, sec. 453; 1 Kerr, Real Property, secs. 575 and 576; 1 Washburn, Real Property (5 Ed.), 129; 1 Am. and Eng. Ency. Law (2 Ed.), 807 and 808; Stevens v. Martin, 168 Mo. 410; Keith v. Keith, 80 Mo. 125; Peck v. Lockridge, 97 Mo. 558; Hickman v. Link, 97 Mo. 494; Allen v. DeGroot, 105 Mo. 442; Allen v. DeGroot, 98 Mo. 161; Melton v. Fitch, 125 Mo. 281; Manning v. Coal Co., 181 Mo. 373; Cockrill v. Hutchinson, 135 Mo. 74; Myers v. Reed, 17 F. 406; Dillinger v. Kelly, 84 Mo. 568; Whitney v. Salter, 36 Minn. 103. (10) The possession of a life tenant or his grantees is not, and cannot by any act or deed of his be made, adverse to the remaindermen. The Statute of Limitation does not begin to run till the death of the life tenant, and the remaindermen are not barred till ten years after such death. Hall v. French, 165 Mo. 430; Reed v. Lowe, 163 Mo. 535; Melton v. Fitch, 125 Mo. 290; Keith v. Keith, 80 Mo. 125; Fisher v. Siekmann, 125 Mo. 178; Bradley v. Railroad, 91 Mo. 498.

Geo. Hubbert with Clay & Sheppard for respondents.

(1) The confusion and apparent conflict amongst certain cases bearing upon the doctrine involved in this case, seem to arise, more often than otherwise, out of the failure to keep in view the polar star of distinction between the sufficiency of a petition to invoke and bring into play the jurisdiction of the court on the one hand, and its sufficiency to show, on the other hand, that the plaintiff is entitled to some remedy at the hand of the court. The jurisdiction, fully proof against any manner of collateral attack, may exist even where the plaintiff does not...