Bates v. Hamilton

CourtUnited States State Supreme Court of Missouri
Writing for the CourtMarshall
Citation144 Mo. 1,45 S.W. 641
Decision Date01 April 1898
PartiesBATES et al. v. HAMILTON.
45 S.W. 641
144 Mo. 1
BATES et al.
v.
HAMILTON.
Supreme Court of Missouri, Division No. 1.
April 1, 1898.

JUDGMENT — VACATING FOR FRAUD — RIGHTS OF COTENANTS — ACCOUNTING — INTEREST.

1. In order to set aside a judgment for fraud, it must appear that the fraud was in the procurement of the judgment, and not merely in the cause of action on which the judgment was founded, and which could have been interposed as a defense, unless such interposition was prevented by the fraud of the adverse party; and especially is this so where the judgment is attacked in a collateral proceeding.

2. Where a tenant in common, by a suit in partition, ousts co-tenants from possession, but the judgment is reversed on appeal five years later, with directions that the ousted tenants be decreed half of the property, and he had collected the rents during the litigation, the ousted tenants may bring a suit in equity, and may compel him to account.

3. Where a tenant in common had collected monthly the rents for the entire property, and had refused to turn over to his co-tenants their respective shares of the rent, or to recognize their rights, he is liable for interest on the rents collected, though he had received none.

4. A tenant in common who had collected part of the rents of the property, paid out of the proceeds, on the advice of counsel, two special tax bills for street paving issued against the property in his charge. His co-tenant thereafter had similar tax bills on the remainder of the property declared invalid. Held, that where the record failed to show what was the infirmity in the tax bills, so as to enable the appellate court to determine whether the one tenant should have resisted by suit the payment thereof, it will be presumed that he acted prudently in paying the tax; and he can credit it to his expenditures in an accounting with his co-tenant.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Suit in equity by Isabell A. Bates and Susan J. McLean against Edward W. Hamilton. From a decree for complainants, defendant appeals. Affirmed.

Jas. F. Pitt, for appellant. M. A. Reed and B. R. Vineyard, for respondents.

MARSHALL, J.


This is a suit in equity for an accounting, growing out of the following facts: Prior to July 29, 1889, defendant and his brother John L. Hamilton owned certain lands as tenants in common. On that date John executed and delivered to his nieces Isabell A. Bates and Susan J. McLean a deed to his undivided share of the property, and, on the 2d of August following, he died. Up to the death of his brother, defendant

45 S.W. 642

collected the rents, and paid over monthly to his brother one-half thereof. On September 7, 1889, defendant commenced a suit for partition, and made his sister Eliza H. Armstrong and these plaintiffs parties defendant. He alleged that the deed from his brother to these plaintiffs was procured by fraud and undue influence, asked that it be set aside, and the property partitioned between himself and his sister Mrs. Armstrong, — three-fourths to him, and one-fourth to her. The defendants in that case answered jointly, set up the deed to these plaintiffs, and claimed that one-half of the land belonged to these plaintiffs by virtue of said deed. The reply reiterated the claim of the petition. The circuit court ordered the deed canceled, and made partition of the property as claimed in the petition, giving this defendant three-fourths, and his sister Mrs. Armstrong one-fourth. The defendants in that suit (the sister and nieces) appealed to this court. After this decree, to wit, on the 1st of March, 1891, this defendant notified Mrs. Armstrong that he would not collect the rents as to the one-fourth set apart to her in partition; and these plaintiffs, with her consent, collected them, but this defendant continued to collect the rents accruing from the three-fourths allotted to him. On the 5th of March, 1894, this court reversed the judgment of the circuit court, and remanded the case, with directions to the lower court to enter a decree giving this defendant one-half, and the other half to be allotted to these plaintiffs in equal parts. Hamilton v. Armstrong, 120 Mo. 597, 25 S. W. 545. At the January term, 1895, of the circuit court, a decree was entered in conformity to the judgment of this court. On the 25th of February, 1895, this defendant instituted suit against these plaintiffs, asking to have the judgment in the partition suit set aside and vacated, because it was obtained by fraud, in that it was based upon a forged deed from John L. Hamilton to them. On the 30th of March, 1895, this suit was begun. The facts above set out were stated in the petition (except the institution of the suit to vacate the decree in partition), and it was admitted that these plaintiffs had collected $12,851.85 from the one-fourth of the property set apart to them in the original partition, and had expended for taxes, repairs, etc., $3,830.68, and averred that the defendant had collected $75,000 from the three-fourths of the property set apart to him in the original partition, had received $8,000 interest on the rents collected by him, had used the rent money in his own business and for his own purposes, deriving $8,000 interest therefrom, and that the use of said money was worth the legal rate of interest, and asked judgment for one-half of the whole sum, less what they had received from the rents arising out of the one-fourth aforesaid, making $41,389.41, for which they asked judgment. The petition also prayed for an accounting, which it was alleged the defendant refused to make. The answer is in three parts: First, a general denial; second, that the decree in partition was obtained by fraud, in that the deed on which it was based was a forgery, which defendant did not discover until after the reversal of the judgment by this court of the original decree in partition, and an averment that as soon as it was discovered, and during the same term, he filed a motion in this court to have the judgment modified so as to permit him to avail himself of the defense of forgery in that case in the lower court, but that his application was denied by this court, and hence he prayed that the decree in partition be vacated, because founded on a forged deed; and, third, the pendency of his suit to vacate the decree, which he alleged would settle every issue in this case. The plaintiffs demurred generally to the second and third defenses, and also specially because Mrs. Armstrong was a necessary party to the determination of that issue. The court sustained the demurrer. The trial then proceeded, and the defendant objected to the introduction of any evidence on the ground that the petition does not state facts sufficient to constitute a cause of action; that is, that one tenant in common cannot, in our state, maintain an action against another for an accounting after a judgment in partition. The court overruled the objection, and defendant duly excepted. The allegations of the petition with respect to all the material averments, except the accounting proper, were admitted by the parties. The parties agreed upon nearly all the items of the account. Those objected to will be referred to hereafter. The defendant, under his general denial, offered testimony to show that the deed to the plaintiffs was a forgery. The court excluded the evidence, and defendant excepted. At the close of the trial, at the May term, 1895, the court entered a decree requiring the parties to state an account of all the rents and money received by them, respectively, prior to January 28, 1895, and also of all taxes, repairs, and other disbursements paid out prior to said date, arising out of the portion of the...

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42 practice notes
  • Smoot v. Judd
    • United States
    • United States State Supreme Court of Missouri
    • November 29, 1904
    ...solely upon an omitted defense. The judgment can only be attacked directly for fraud in the very act of procuring it. Bates v. Hamilton, 144 Mo. 1, 45 S. W. 641, 66 Am. St. Rep. 407; Fears v. Riley, 148 Mo., loc. cit. 58, 49 S. W. 836; Neun v. Blackstone B. & L. Ass'n, 149 Mo., loc. cit. 80......
  • Lieber v. Lieber
    • United States
    • United States State Supreme Court of Missouri
    • December 23, 1911
    ...9 N. J. Eq. 173; Guthrie v. Doud, 33 Ill. App. 68; Md. Steel Co. v. Marney, 91 Md. 360 [46 Atl. 1077]; Bates v. Hamilton, 144 Mo. 11, 12 [45 S. W. 641, 66 Am. St. Rep. 407]. In Vance v. Burbank, 101 U. S. 514 [25 L. Ed. 929], Chief Justice Waite said: `It has also been settled that the frau......
  • Cross v. Gould
    • United States
    • Missouri Court of Appeals
    • May 12, 1908
    ...482, 36 S. W. 621, 58 Am. St. Rep. 604; Nichols v. Stevens, 123 Mo. 96, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514; Bates v. Hamilton, 144 Mo. 1, 45 S. W. 641, 66 Am. St. Rep. 407; McIntosh v. Crawford Co., 13 Kan. 171; Lee v. Harmon, 84 Mo. App. 157; Miles v. Jones, 28 Mo. 87; 1 Black......
  • Waller v. George, No. 27088.
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1929
    ...allegations in the pleading of him who seeks it. [30 Cyc. 219; Lilly v. Menke, 126 Mo. 190, 218, 28 S.W. 643, 651; Bates v. Hamilton, 144 Mo. 1, 13, 455 S.W. 641; Coberly v. Coberly, supra, 189 Mo. l.c. 19, 87 S.W. l.c. 961.] If the evidence had been admitted it would have been outside the ......
  • Request a trial to view additional results
42 cases
  • Smoot v. Judd
    • United States
    • United States State Supreme Court of Missouri
    • November 29, 1904
    ...solely upon an omitted defense. The judgment can only be attacked directly for fraud in the very act of procuring it. Bates v. Hamilton, 144 Mo. 1, 45 S. W. 641, 66 Am. St. Rep. 407; Fears v. Riley, 148 Mo., loc. cit. 58, 49 S. W. 836; Neun v. Blackstone B. & L. Ass'n, 149 Mo., loc. cit. 80......
  • Lieber v. Lieber
    • United States
    • United States State Supreme Court of Missouri
    • December 23, 1911
    ...9 N. J. Eq. 173; Guthrie v. Doud, 33 Ill. App. 68; Md. Steel Co. v. Marney, 91 Md. 360 [46 Atl. 1077]; Bates v. Hamilton, 144 Mo. 11, 12 [45 S. W. 641, 66 Am. St. Rep. 407]. In Vance v. Burbank, 101 U. S. 514 [25 L. Ed. 929], Chief Justice Waite said: `It has also been settled that the frau......
  • Cross v. Gould
    • United States
    • Missouri Court of Appeals
    • May 12, 1908
    ...482, 36 S. W. 621, 58 Am. St. Rep. 604; Nichols v. Stevens, 123 Mo. 96, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514; Bates v. Hamilton, 144 Mo. 1, 45 S. W. 641, 66 Am. St. Rep. 407; McIntosh v. Crawford Co., 13 Kan. 171; Lee v. Harmon, 84 Mo. App. 157; Miles v. Jones, 28 Mo. 87; 1 Black......
  • Waller v. George, No. 27088.
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1929
    ...allegations in the pleading of him who seeks it. [30 Cyc. 219; Lilly v. Menke, 126 Mo. 190, 218, 28 S.W. 643, 651; Bates v. Hamilton, 144 Mo. 1, 13, 455 S.W. 641; Coberly v. Coberly, supra, 189 Mo. l.c. 19, 87 S.W. l.c. 961.] If the evidence had been admitted it would have been outside the ......
  • Request a trial to view additional results

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