Bank & Trust Co. v. Bowman

• Decision Date: 29 March 1929
• Docket Number: No. 27567.,27567.
• Citation: 15 S.W.2d 842
• Parties: FIRST NATIONAL BANK AND TRUST COMPANY OF KING CITY v. LOUIS N. BOWMAN ET AL., Appellants.
• Court: Missouri Supreme Court

15 S.W.2d 842

FIRST NATIONAL BANK AND TRUST COMPANY OF KING CITY v. LOUIS N. BOWMAN ET AL., Appellants.

No. 27567.

Supreme Court of Missouri, Division No. 1.

March 29, 1929.

Appeal from Gentry Circuit Court. — Hon. John M. Dawson, Judge.

AFFIRMED.

Fielding P. Stapleton and J.W. McKnight for appellants.

(1) The jurisdiction of any court exercising authority over a subject-matter may be inquired into in every court, when the proceedings of the former are relied on and brought before the latter by the party claiming the benefit of such proceedings. Ex parte O'Brien, 127 Mo. 491. (2) The jurisdiction of the court of the subject-matter of an action does not rest on averments in pleadings, and sufficiency of pleadings is not a jurisdictional test. 15 C.J. 733; Weelscher v. Kelly, 69 Mo. 343; Schubach v. McDonald, 179 Mo. 163. (3) Consent or waiver cannot confer jurisdiction over the subject-matter of the action where it is not vested in the court by law. 7 R.C.L. 1043; 15 C.J. 802; Schmidt v. Order of Foresters, 259 Mo. 153; Big Tarkio Drain. Dist. v. Voltner, 256 Mo. 152. (4) Where the jurisdiction depends on some collateral fact, which can be decided without going into the case on its merits, then the jurisdiction may be questioned collaterally and disproved, even though the jurisdictional fact be averred of record and was actually found on evidence by the court rendering the judgment. 17 Am. & Eng. Ency. Law, 1084, 1085; Ex parte O'Brien, 127 Mo. 491. (5) A life tenant of the entire estate cannot maintain partition against the remaindermen. Atkinson v. Brady, 114 Mo. 200; Stockwell v. Stockwell, 262 Mo. 671.

(6) Prior to the act approved March 29, 1921, the husband's interest in the real property of the wife was that of tenant by the curtesy and there was no right of election to take a child's part. By this act the right of election by the widower to take a child's part was conferred upon the husband. Laws 1921, p. 119. (7) Fraud will vitiate a judgment. Howard v. Scott, 225 Mo. 714; Marley v. Mfg. Co., 232 S.W. 706. When the defendant is prevented by the fraud of the plaintiff from making the defense, and when as in this case the defense rests in the peculiar knowledge of the plaintiff and he conceals it from defendant, the fraud attaches to the judgment itself and vitiates it; it is a fraud in procuring the judgment. Wonderly v. Lafayette Co., 150 Mo. 650. (8) The First National Bank & Trust Company is chargeable with its cashier's knowledge of the facts at the time the train approached and passed over it. There was there-Marley v. Mfg. Co., 232 S.W. 704; 2 C.J. 859.

E.G. Robison and J.J. Robison for respondent.

(1) The suit in partition in which the appellant was adjudged to be the owner of an undivided one-half interest in the land in controversy in this action was binding and final, and res adjudicata, and cannot be reopened in this action. The court in the partition suit had jurisdiction of the subject-matter, and of the parties. The decree was not appealed from. The evidence of fraud on the court in the procurement of the judgment is not proven. The most that can be said of the evidence on this point is negligence of defendant's counsel in the partition suit. Hope v. Blair, 105 Mo. 92; Howland v. Ry. Co., 134 Mo. 479; Brown v. Curtis, 155 Mo. App. 381; Chouteau v. Gibson, 76 Mo. 51; Murphy v. De France, 101 Mo. 159; Rosenheim v. Hartsock, 90 Mo. 365; Myers v. Miller, 55 Mo. App. 343; Sims v. Grey, 66 Mo. 616; Yates v. Johnson, 87 Mo. 217; Grey v. Bowles, 74 Mo. 424; Stewart v. Dent, 24 Mo. 110; Latrielle v. Dorleque, 35 Mo. 236; Bobb v. Graham, 89 Mo. 203; Yore v. Yore, 240 Mo. 464; Landis v. Overton, 293 S.W. 372; Canton Trust Co. v. Durrett, 9 S.W. (2d) 929; 34 C.J. 901, sec. 1311. (2) A judgment in partition cannot be avoided by one of the parties to it upon the grounds that others who were not parties had an interest in the premises in partition. Cochran v. Thomas, 131 Mo. 279; Canton Trust Co. v. Durrett, 9 S.W. (2d) 929. (3) There is no evidence of any fraud on this defendant by any one. He say that Ward never told him anything about his interest in this real estate. He is a well educated man; at that time editor of a newspaper and a business man. He was sui juris, and took the petition and summons to a good lawyer, of his own choosing, who prepared his answer, and tried the case for him. This does amount to fraud on the court. Murphy v. De France. 101 Mo. 157; 34 C.J. 278, sec. 496. (4) The doctrine of subrogation was properly applied in this case under the evidence in the cause. Capen v. Garrison, 193 Mo. 341; Banking Co. v. See, 146 Mo. App. 275; Davenport v. Timmonds, 157 Mo. App. 365; Berry v. Stigall, 253 Mo. 690; Wales Heirs v. Fleming Est., 29 Mo. 152; 25 R.C.L., Subrogation, secs. 26, 37. (5) The defendant in the partition suit, under oath, declared in his answer that his interest in the land was an undivided one-half interest. The admission in the answer, especially when signed by the defendant himself and sworn to by him, amounted to a solemn admission on his part as to his interest in the real estate. This was made after consultation with the attorney of his own choosing, and is binding on this defendant in this cause. Turner v. Baker. 64 Mo. 245; Utley v. Tolfree, 77 Mo. 309.

SEDDON, C.

Plaintiff commenced this action in the Circuit Court of Gentry County on August 7, 1925. The action is a statutory one, seeking to quiet, ascertain and determine the title to lots 15 and 16, in block 11, of Kate Carter's First Addition to the city of King City, Missouri. The petition is conventional, alleging that the plaintiff bank is the owner in fee simple of the above-described real property and that the defendants claim and assert some title, estate or interest therein, the nature and characer of which claim of interest is unknown to plaintiff, and praying the court to ascertain and determine the estate, title and interests of the respective parties in and to the described real property. The answer of the defendants, which is in the nature of a cross-bill, and the reply of plaintiff thereto, are lengthy, and no purpose is to be served in stating the substance of those pleadings. Suffice it to say that the answer of the defendants sets up the claim of interest of the defendants in the real property described, and avers that the Circuit Court of Gentry County was without jurisdiction of the subject-matter of a certain suit or action in partition, which suit or action will be presently mentioned and discussed in the course of our opinion, resulting in a judgment in partition, and an order of sale, whereby the described real property was sold to the plaintiff bank as the highest and best bidder at partition sale, and which sale was confirmed by the Circuit Court of Gentry County, it being averred in the answer of defendants that the Circuit Court of Gentry County was induced to exercise jurisdiction of said partition suit by the false and fraudulent representations of the plaintiff bank, and that the final judgment and subsequent proceedings therein, including the sale of the described real property to the plaintiff bank, were occasioned by fraud committed upon the Circuit Court of Gentry County by the plaintiff herein; wherefore, the defendants pray that the judgment in said partition suit or action, and the deed in partition thereunder, be set aside and for naught held. The reply joined issue upon the averments of the answer, and pleads the judgment of the Circuit Court of Gentry County in the said partition suit as res adjudicata of all matters and things therein adjudged, and that the defendants are thereby estopped to dispute or controvert said judgment in the instant action.

The substantive facts are not controverted and may be briefly stated. The common source of title of the land in controversy was Maggie A. Bowman, the deceased mother of the principal defendant herein, Louis N. Bowman. Maggie A. Bowman died intestate in the month of September, 1917, owning and seized of the described land. She was survived by her husband, William L. Bowman, and by one child and descendant, the principal defendant herein, Louis N. Bowman, who was a minor of eighteen years at his mother's death. It is admitted by the parties herein that the estate of Maggie A. Bowman was duly administered by her surviving husband, William L. Bowman, as the administrator of her estate, in the Probate Court of Gentry County, in which county decedent resided at the time of her death.

On February 11, 1919, and during the minority of the principal defendant, Louis N. Bowman, the surviving widower of the decedent, William L. Bowman, executed and delivered to the First National Bank of King City (which, at that time, was the corporate name of the plaintiff bank) a deed of trust, purporting to convey to Robert Stanton, trustee for said bank, an undivided one-half interest in the land in controversy to secure the payment of William L. Bowman's promissory note of even date therewith for $1900, payable to the order of said First National Bank of King City on June 18, 1920, with interest on the principal sum from date at seven per cent per annum, payable annually. The deed of trust aforesaid contained the usual provisions, and empowered the trustee named therein to sell the described land, in the event of default in the payment of the principal and interest of said note when due and payable, at public vendue, for cash, to the highest bidder at the court house door in the city of Albany, Gentry County, Missouri, upon the giving of thirty days notice of the time, terms and place of sale, and of the property to be sold, by advertisement in some newspaper printed and published in Gentry County. Pursuant to the powers conferred by said deed of trust, the trustee named therein proceeded to sell the undivided one-half interest in and to the described lands, purported to have been conveyed by said deed of trust, on April 8, 1922,...