Baldwin v. Whitcomb

• Citation: 71 Mo. 651
• Parties: BALDWIN, Appellant, v. WHITCOMB et al.
• Decision Date: 30 April 1880
• Court: United States State Supreme Court of Missouri

71 Mo. 651

BALDWIN, Appellant,

v.WHITCOMB et al.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Mississippi Circuit Court.--HON. D. L. HAWKINS, Judge.

REVERSED.

This was an action brought by Mary J. Gray, as guardian of Wm. Baldwin, against James H. Bethune, executor of George Whitcomb, deceased, James H. Bridges, and the heirs of said Whitcomb. The petition prayed that a deed to certain real estate therein described, should be set aside as having been fraudulently obtained by the said Whitcomb from one Drakeford Gray, administrator of Samuel Baldwin, the father of the said William. The circuit court found for the defendants and dismissed the plaintiff's petition. The facts are fully stated in the opinion.

J. B. Dennis for appellant.

Louis Houck for respondents.

SHERWOOD, C. J.

In the year 1856, Samuel Baldwin owned and resided on a farm in Mississippi county. On the 8th day of May, in that year, he contracted with the defendant, James H. Bridges, to sell the same for $1,800. The title bond which evidenced the contract, provided that the payments should be made as follows: $900 on the 1st day of January, 1857, and a like sum on the 1st day of January, 1858. It was also recited in the bond that Bridges had executed his two promissory notes corresponding with the provisions above mentioned, as to the times and amounts of payments of the purchase money. Soon after this occurrence the parties rescinded the contract, and the title bond was, for the sum of $50, surrendered by Bridges to Baldwin, who thereupon delivered the bond to his wife for safe keeping. Baldwin continued to reside on the premises, treating and claiming them as his own, until his death, which occurred in the year 1857. Bridges resided on an adjoining farm, and never, after the contract was rescinded, made any claim to the land. Upon Baldwin's death the bond was found among his papers. There is such an array of testimony on the above mentioned points, as to banish all doubt as to the entire correctness of the foregoing brief statement.

On the hearing of this cause, and the introduction of the plaintiff's evidence, the defendants, in support of their answer, introduced in evidence a petition for specific performance, filed by George Whitcomb, the then clerk of the county court, also the bond before mentioned, upon which was an indorsement which bears date May 26th, 1856, and has the name of Baldwin signed to it, and purports to transfer to George Whitcomb all Baldwin's right in the second note mentioned in the bond, i. e., the one due January 1st, 1858. There also appears on the bond an indorsement, without date, purporting to be signed by the defendant, James H. Bridges, and to transfer for value received, the bond to George Whitcomb. The defendants also introduced in evidence the promissory notes mentioned in the title bond, one of which had an assignment thereon to George Whitcomb, purporting to have been signed by Samuel Baldwin; and, as appears from Whitcomb's petition, was assigned prior to the transfer of the bond.

The defendants also introduced in evidence the decree for specific performance, entered by the county court of Mississippi county, April 20th, 1858, on the same day the petition was filed. This decree recites that Drakeford Gray, the administrator of Baldwin, appeared in open court, entered his appearance, and waived any other or further notice, and after making the usual recitals, the decree requires the administrator, Gray, in specific execution of the contract of his intestate, to execute and deliver a deed to Whitcomb. The petition for specific performance alleges that Bridges paid Baldwin, in his life-time, the amount of the first note, and that Whitcomb, on the 26th day of May, 1856, paid to Baldwin the amount of the second note, and that thereupon he assigned to Whitcomb the second note, and made the indorsement to that effect on the bond.

Gray is positive that he never appeared in the county court and waived service of notice as recited in the decree for specific performance, and equally so that neither Bridges nor Whitcomb ever approached him to induce him to waive service of notice. This witness also testifies that Whitcomb was his adviser, and exercised great influence over him about the business of the estate; that at a sheriff's sale of the interest of one Willett in the land in question, Whitcomb bid it off, and in a little while came to Gray and induced him to sign and acknowledge the deed, which he did without reading it, supposing it to be all right, and that witness never did knowingly and understandingly sign a deed for the land in controversy under an order of the county court for specific performance. Gray was very dissipated while administrator, and Bridges had him completely under his control.

According to Whitcomb's own petition, Bridges having paid the first note during Baldwin's life-time, and the second note having been paid by Whitcomb at the time of the alleged indorsement on the 26th day of May, 1856, and having subsequently received from Bridges a transfer of the title bond, he was entitled at least as early as the decree and reception of the deed made by Gray, to the land in question; but we find that he made no claim to the land during the first part of Gray's administration. Although he knew that Gray was paying rent to the estate for the land while acting as administrator, yet Whitcomb asserted no title to the land as the assignee of the title bond from Bridges, and only set up such a claim during the latter part of Gray's administration, and only then by reason of the purchase under execution of Willet's interest in the land.

As to Bridges, we find him, when applied to for advice by Mrs. Gray, telling her that Baldwin had no title to the land, that it was sold to pay George Beeler for the purchase money, and to do nothing with it.

W. G. Cooley, former judge of the county court, who had testified to the contract between Baldwin and Bridges, having been rescinded, and to having with other witnesses found the title bond among the papers of Baldwin's estate, said: “I have no recollection of such a judgment having been made by the county court, although the records were signed by me. Had my attention been called to any such proceeding, it would at once have reminded me of the rescission made between Baldwin and Bridges. I am positive no such decree was ever made by the county court. The record, as it now is, could have been made by the clerk and the reading of that part of it omitted. I don't see any other way it could have been done. I had unbounded confidence in Mr. Whitcomb, and never re-read the record.”

The decree for specific performance, referred to by Judge Cooley in his deposition, was pleaded by defendants as res judicata, and in bar of the present proceeding, and plaintiff's reply alleged that the decree was obtained by fraud, and this was the charge also in the petition, and this is the chief point for determination.

1. ADMINISTRATION: petition for specific performance.

It must be confessed that it would be to the last degree hazardous to set aside, except for the most weighty considerations, a judgment apparently entered with customary regularity upon the records of a court. But so much cannot be said of the judgment under discussion. The statute (1 R. S. 1855, p. 148, § 39) requires the petition for specific performance to be verified by the affidavit of the petitioner. This...