Hope v. Blair
| Decision Date | 02 June 1891 |
| Citation | 16 S.W. 595,105 Mo. 85 |
| Parties | Hope v. Blair et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Shelby Circuit Court. -- Hon. T. H. Bacon, Judge.
Affirmed.
W. O L. Jewett and C. M. King for appellants.
(1) When the court has no jurisdiction of the subject-matter, the judgment or decree is void. Adams v. Cowles, 95 Mo 501; Brown v. Woody, 64 Mo. 547; Bray v Marshall, 66 Mo. 123; Cloud v. Inhabitants, 86 Mo. 366. (2) The decree did not bind either Kennerly or Berolzheimer. Eddy v. Baldwin, 23 Mo. 588; Collins v. Warren, 29 Mo. 236. (3) The instruction by the court of its own motion is wrong, a deed lying outside the chain of title will impart no notice to the purchaser. Tydings v. Pitcher, 82 Mo. 379; Speck v. Riggin, 40 Mo. 405; Campbell v. Co., 84 Mo. 352. (4) The court erred in allowing the record of the deed to be read as a copy of a lost deed. R. S. 1879, sec. 682; Harding v. Lee, 51 Mo. 241; Coil v. Moore, 51 Mo. 589. (5) Plaintiff must recover, if at all, by the strength of his own title. Seimers v. Schrader, 14 Mo.App. 346; Foster v. Evans, 51 Mo. 39; Dunlap v. Henry, 76 Mo. 106; Farrar v. Heinrich, 86 Mo. 521; Hunt v. Railroad, 75 Mo. 252. (6) The court ought to have given the instructions asked by defendant, declaring in substance that if the court sitting as a jury found from the evidence that Julia A. Wilson had only such an estate in the lot in controversy as that contained in the deed from Gunby to her, or of the record read in evidence of Hopkins to her, then she had no estate separate and apart from her husband, and the equity proceedings and deed under them were, therefore, void. Judgment can be attacked collaterally for fraud. McClanahan v. West, 100 Mo. 320; Bigelow on Estoppel [3 Ed.] 164. (7) The court ought to have set the verdict aside because the amount of damages found is greater than the amount asked. Feedler v. Schroeder, 59 Mo. 364; Moore v. Dixon, 50 Mo. 424.
R. P. Giles for respondent.
(1) The decree in the equity suit of Hope v. Wilson is regular, valid, and imports verity, there being nothing in the judgment roll to contradict the recitals in the decree. Adams v. Cowles, 95 Mo. 50; Crow v. Myersieck, 88 Mo. 411; Burnett v. McCluey, 92 Mo. 230. (2) In determining whether a deed vests a separate estate in a married woman or not, the court is not limited to a construction of the deed itself. Klenke v. Koeltzer, 75 Mo. 239; Martin v. Colburn, 88 Mo. 229; Nicholson v. Flynn, 24 Mo.App. 571. (3) The court had jurisdiction of the subject-matter involved in the equity suit, and one of the questions submitted to the court to be determined was, whether or not Julia A. Wilson had a separate estate in the property, and the court found that she had a separate estate and made a decree subjecting it to the payment of the debt and its findings are conclusive, and cannot be attacked in this suit. Rosenheim v. Hartsock, 90 Mo. 357; Coal Co. v. Bingham, 97 Mo. 196. (4) All presumptions are in favor of the judgment, and nothing shall be intended to be out of the court's jurisdiction, except that which specially appears to be so. Adams v. Cowles, 95 Mo. 501; McClanahan v. West, 100 Mo. 309. No irregularity or error in the form of the decree will affect its validity. Rosenheim v. Hartsock, 90 Mo. 357. (5) The equitable notice of the endency of the suit of Hope v. Wilson seeking to affect the separate estate of Julia A. Wilson with the lien imported notice from the time of filing. Rosenheim v. Hartsock, 90 Mo. 357. (6) The court committed no error in refusing appellants' instruction, and the declaration of law given by the court of its own motion is amply supported by the authorities. It is a maxim in equity that he who takes with notice of an equity takes subject to that equity. Notice in this connection does not mean positive information, brought directly home to the party to be charged with it, but any fact, that would put an ordinarily prudent man upon inquiry, is notice. Major v. Bukley, 51 Mo. 227; Meir v. Blum, 80 Mo. 179; Beattie v. Butler, 21 Mo. 313; Fellows v. Wise, 55 Mo. 413; Muldrow v. Robinson, 58 Mo. 33; Leavitt v. La Force, 71 Mo. 353; Mason v. Black, 87 Mo. 329. (7) The finding of the court is amply supported by the evidence. The facts upon which the findings and judgment in this case are based are incontrovertible; the case being submitted to the court and a jury dispensed with, the facts are assumed to be as the court finds them, and this court will only review the declarations of law. Stewart v. Wood, 63 Mo. 233; Rice v. Dudley, 34 Mo.App. 383; Taylor v. Penquite, 35 Mo.App. 389; Warren & Son v. Malony, 39 Mo.App. 295. (8) The appellant Berolzheimer was affected with notice of the deed from Hopkins and wife to Julia A. Wilson, dated December 25, 1884, and was bound to take notice of all liens shown to exist therein. A purchaser is bound to take notice of his vendor's title deeds, and all liens shown by them to exist. Orrick v. Durham, 79 Mo. 174; Major v. Bukley, 51 Mo. 227. (9) And it makes no difference that the deed from Hopkins to Julia A. Wilson, through which his vendor Kennerly derived title, was not of record; because he could not make out his title through Kennerly without that deed. Johnson v. Gwathmey, 4 Litt. (Ky.) 174; Orrick v. Durham, 79 Mo. 174; Poage v. Railroad, 24 Mo.App. 199. (10) Samuel Kennerly, from whom appellant Berolzheimer purchased, also had notice for the reasons above stated. The deed from Kennerly to Berolzheimer made on the day of the latter's purchase under the attachment proceedings was a quitclaim deed, and will not support the claim of being an innocent purchaser. Ridgeway v. Holliday, 59 Mo. 444; Stoffel v. Schroeder, 62 Mo. 147; Stivers v. Horne, 62 Mo. 473; Maine v. Best, 62 Mo. 491; Sharp v. Cheatham, 88 Mo. 498. (11) The demurrer to the evidence was properly overruled. There is nothing in appellants' contention that respondent offered no evidence showing that Julia A. Wilson, through whom he claimed, ever had title. It was not necessary. The respondent had offered evidence to show that Julia A. Wilson was the common grantor. Charles v. Patch, 87 Mo. 450; Smith v. Lindsey, 89 Mo. 76. (12) Neither is there anything in the appellants' contention, that the finding is for a larger amount than the damage claimed in the petition. The petition contained, besides the prayer for $ 100, a prayer for proper relief, and under this the court was authorized to render judgment for the mesne profit, which was done. (13) When the judgment is for the right party, it will be affirmed. Conley v. Doyle, 50 Mo. 234; Dunn v. Ruly, 58 Mo. 134; Hendecker v. Ganzhorn, 50 Mo. 154; Jackson v. Magruder, 51 Mo. 55.
Ejectment to recover possession of the east half of lot 9 in Taylor and Towson's addition to Shelbina. Answer, general denial.
It was admitted on the trial that Julia A. Wilson, wife of Newton Wilson, was the common source of title, and that defendant was, at the commencement of the suit, and at the trial, in the possession of the property.
Plaintiff offered in evidence the records and proceedings of the circuit court of Shelby county, in a suit by plaintiff herein as guardian of some minor children against Julia A. Wilson and her husband, commenced on the fourth day of February, 1885. This record shows that on the seventeenth day of August, 1883, Julia A. Wilson was the owner of the land as her separate estate in equity, and on said day she executed and delivered to plaintiff as guardian her note for $ 500 intending to charge, and thereby charging, said land for the payment thereof. Personal service was had on defendant Julia A. and notice by publication on her husband. Notice of lis pendens was filed on the day the suit was commenced, and was duly recorded. The court found the facts to be as charged in the petition, and a decree was entered accordingly. Under a sale on execution upon this decree plaintiff purchased the land, and claims title under the sheriff's deed which was read in evidence. Plaintiff offered evidence of damages, rents and profits, and rested.
Defendant then read in evidence a deed from Newton Wilson and wife, conveying the lot in controversy to John T. Hopkins, dated August 28, 1884, filed August 28, 1884. Also note and all the papers in an attachment suit brought January 7, 1885, by defendant Berolzheimer against John T. Hopkins, in which the lot in controversy was attached, judgment obtained, and sale of lot under same. Sheriff's deed also read conveying lot to Berolzheimer; sale under this attachment, regular; deed, dated April 7, 1886. Defendant next read the record of a deed from S. C. Gunby and wife to Julia A. Wilson, dated July 27, 1883, and filed August 20, 1883. This is a warranty deed in usual form, conveying simply a legal title, with no statement in reference to a separate estate.
Then defendant read a deed from Julia Wilson and husband to Samuel Kennerly, dated January 3, 1885; filed April 9, 1885. This was a quitclaim deed, and contained the following recital:
"It is hereby understood by and between the parties hereto that this deed is made subject to a certain deed of trust in favor of George Hope, given by Julia A. Wilson in August, 1883, to secure the payment of $ 500."
Then defendant read deed from Samuel Kennerly and wife to Berolzheimer, dated April 7, 1886; filed April 12, 1886.
In rebuttal plaintiff offered to read the record of a deed from J. T. Hopkins and wife to Julia A. Wilson dated December 25 1884, and filed the same day. This record was objected to as evidence for the reason that the deed did not appear to have been acknowledged. To prove the execution of the deed plaintiff called L. A. Hayward who testified that he was deputy recorder and knew...
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