Boatmen's Nat. Bank v. Fledderman

• Citation: 179 S.W.2d 102
• Decision Date: 03 April 1944
• Docket Number: No. 38760.,38760.
• Parties: BOATMEN'S NATIONAL BANK OF ST. LOUIS, a Corporation, as Trustee Under Last Will and Testament of HUGH W. THOMASSON, Deceased, v. GRACE CAROLINE FLEDDERMAN et al., Defendants, and STEPHEN C. ROGERS, Appellant.
• Court: United States State Supreme Court of Missouri

179 S.W.2d 102

BOATMEN'S NATIONAL BANK OF ST. LOUIS, a Corporation, as Trustee Under Last Will and Testament of HUGH W. THOMASSON, Deceased, v. GRACE CAROLINE FLEDDERMAN et al., Defendants, and STEPHEN C. ROGERS, Appellant.

No. 38760.

Supreme Court of Missouri.

Division Two, April 3, 1944.

Appeal from Circuit Court of City of St. Louis. — Hon. William B. Flynn, Judge.

REVERSED AND REMANDED (with directions).

Jerome F. Duggan for appellant.

(1) There is a defect of parties plaintiff. The question of cancelling notes for fraud is personal and the trustee of a deceased defrauded person cannot by-pass the executor. 37 C.J.S., p. 344, sec. 60; Odom v. Langston, 173 S.W. (2d) 826; Toler v. Judd, 262 Mo. l.c. 352; Wass v. Hammontree, 77 S.W. (2d) 1006; Green v. Tittman, 124 Mo. l.c. 377; Hellman v. Wellenkamp, 71 Mo. 407; Pullis v. Pullis, 178 Mo. 683. (2) The executor, as well as the State Board of Education, as the ultimate beneficiary or legatee, are necessary parties, and all the more so unless their absence is explained by appropriate allegations in the petition. There is insufficient personal property to pay the debts. In re Thomasson's Est., 171 S.W. (2d) l.c. 561. (3) The second amended petition herein is multifarious. Essen v. Adams, 342 Mo. 1196, 119 S.W. (2d) 773. (4) And including so many, 118, defendants and so many varied causes of action plaintiff failed in its efforts to state a cause against this separate defendant according to code requirement. Sec. 1685, R.S. 1939. (5) A cause must be stated against each and every defendant and such cause must affect each defendant. Liney v. Martin, 29 Mo. 28; Trefny v. Eichenseer, 262 Mo. 442; Beattie Mfg. Co. v. Gerardi, 166 Mo. 142. (6) Plaintiff-respondent attempted by reply to fortify its petition, enlarge its claims and set up a new or additional cause of action — this cannot be done. Regal Rlty. & Inv. Co. v. Gallagher, 188 S.W. 151; Talbert v. Chicago, R.I. & Pac. Ry., 284 S.W. 499, 314 Mo. 352. (7) Appellant rendered valuable services and expended money regardless of duress or coercion is entitled to the notes paid him. Field v. Natl. City Bk., 343 Mo. 419, 121 S.W. (2d) 769; Massey-Harris Co. v. Rich, 122 S.W. (2d) 858; State ex rel. v. Buder, 308 Mo. 237, 271 S.W. 508, 39 A.L.R. 1199. (8) This court will take judicial notice of its own records. Lemmon v. Cont. Cas. Co., 169 S.W. (2d) 920; In re Thomasson's Est., 171 S.W. (2d) l.c. 562. (9) This action against this appellant is barred by the three-year Statute of Limitations. Sec. 1007, R.S. 1939; Hubbard v. Keen, 297 Mo. 29. (10) As well as by the five-year statutes, on the grounds there is no title controversy as against this separate appellant and his answer asks affirmative relief. Nettleton Bank v. McGaughey's Estate, 318 Mo. 948, 2 S.W. (2d) 771; In re Thomasson's Estate, 171 S.W. (2d) 553. (11) Appellant in his answer pleaded surrender of a valuable asset and asked affirmative relief therefor and which is not disposed of or mentioned in the decree and for that reason it is defective. Thresher v. Speak, 167 Mo. App. 470; Miller v. Connell, 235 S.W. 137; Lepman v. Rothschild, 216 Mo. App. 251, 262 S.W. 685. (12) The decree finds facts alleged for the first time in the reply. This cannot be done. Talbert v. Chicago, R.I. & P.R. Co., 284 S.W. 499, 314 Mo. 352. (13) The decree was modified in four several instances January 29, 1943. The statutes provide plaintiff shall pay cost under certain circumstances, and those circumstances are present here. Sec. 1686, R.S. 1939. (14) The decree is erroneous in ruling the Illinois marriages and the West Frankfort judgment void. This action is a collateral attack on that judgment. Abernathy v. Mo. Pac. Ry. Co., 287 Mo. 30; Reger v. Reger, 316 Mo. 1310, 293 S.W. 414. (15) And suit can only be brought by executor or personal representative. Odom v. Langston, 173 S.W. (2d) 826; 37 C.J.S., p. 344, sec. 60. (16) Annulment suits are transitory in Illinois. Cox v. Cox, 192 Ill. App. 286; Lindon v. Lindon, 69 Ill. 43; and in Missouri; Marre v. Marre, 184 Mo. App. 198, 168 S.W. 636. (17) An Illinois decree for separate maintenance cannot be denied by courts of other states. Harding v. Harding, 198 U.S. 317. (18) The decree violates, insofar as the Illinois marriages, and West Frankfort decree are concerned. Sec. I, Art. IV, U.S. Constitution. (19) Arkansas judicial decisions, in effect, become a part of their statutes. Thrower v. Hemwood, 173 S.W. (2d) 861; Sec. 7041, Crawford v. Moses Digest of the Statutes of Ark. 1921. (20) That statute Sec. 7041 imposes the obligation of husband and wife until its nullity shall be decreed by a court of competent jurisdiction. Kibler v. Kibler, 180 Ark. 1152; Phillips v. Phillips, 182 Ark. 206; Witherington v. Witherington, 200 Ark. 802. (21) It cannot be set aside in Missouri after death of one of the spouses. Henderson v. Henderson, 265 Mo. 718, 38 C.J., p. 1300, sec. 61; In re Guthery v. Wetzel, 205 Mo. App. 664; Reger v. Reger, 293 S.W. 414, 316 Mo. 1310. (22) The Arkansas marriage cannot be collaterally attacked in Missouri and voided. Williams v. State of North Carolina, 63 S. Ct. 207; Fauntelroy v. Linn, 28 S. Ct. 641, 52 L. Ed. 1039; State ex rel. v. Shain, 149 S.W. (2d) 812; Ray v. Ray, 330 Mo. 536, 50 S.W. (2d) 142; State ex rel. v. Henderson, 230 Mo. App. 25, 88 S.W. (2d) 893; Weil v. Richardson, 224 Mo. App. 999, 24 S.W. (2d) 175; Sec. I, Art. IV, U.S. Constitution.

Franklin E. Reagan and Lehmann & Allen for respondent.

(1) The devisee is the proper party to bring suit to quiet title to the real estate devised. Secs. 850 and 1685, R.S. 1939; McQuitty v. Wilhite, 218 Mo. 586; Chambers, Adm., v. Wright's Heirs, 40 Mo. 482; Spicer v. Spicer, 249 Mo. 582; Wakefield v. Denger, 135 S.W. (2d) 17. (2). The objection that the petition is multifarious was not timely raised, and is waived. Secs. 922, 926, R.S. 1939; Supreme Court Rule 15. The petition is not multifarious. (3) The petition states a cause of action against Rogers. Baker v. Lamar, 140 S.W. (2d) 31; Titus v. Tolle, 223 S.W. 885; W.H. Johnson Timber Co. v. Belt, 46 S.W. (2d) 153; Rains v. Moulder, 90 S.W. (2d) 81. (4) Appellant's point on the Statute of Limitations was not preserved and is not before this court on appeal. (5) The Statute of Limitations did not bar this suit. Secs. 1002 and 1013, R.S. 1939; Armor v. Frey, 253 Mo. 447; Powell v. Powell, 183 S.W. 625; White v. Pendry, 25 Mo. App. 542; Stark v. Zehnder, 204 Mo. 442; Hoester v. Sammelman, 101 Mo. 619; Rutter v. Carothers, 223 Mo. 631. (6) The decree disposes of all the relief asked for by Rogers and is not defective. Stevens v. Fitzpatrick, 218 Mo. 708. (7) The decree against Rogers for costs was proper. R.S. 1939, secs. 1406, 1686. (8) Mr. Rogers' point that the decree for costs against him was improper is not assigned as error and will not be noticed. Supreme Court Rule 15. (9) Mr. Rogers' points that the decree is erroneous in ruling that the three marriages and the West Frankfort judgment are void was not preserved and will not be noticed on appeal.

BOHLING, C.

The Boatmen's National Bank of St. Louis, a corporation, as trustee under the last will and testament of Hugh W. Thomasson, deceased, instituted this action to quiet the title (Sec. 1684, R.S. 1939) to certain real estate in the City of St. Louis, owned by Hugh W. Thomasson during his lifetime. The decree was for the plaintiff throughout. Stephen C. Rogers, one of the defendants, prosecutes this appeal from that portion of the decree holding void and of no force and effect against plaintiff a deed of trust and the $125,000 principal amount of notes secured thereby, Mr. Rogers holding $43,000 or $44,000 of said notes, the portion of the decree by which he was aggrieved. Mr. Rogers did not bring up the testimony. He states the appeal involves the record proper and certain documents, motions, proceedings, rulings and exceptions, exclusive of the testimony. He contends, principally, the court erred in overruling his demurrer to plaintiff's bill; in failing to decree the suit barred by the statute of limitations; in not disposing of all issues presented; in finding facts first set up in plaintiff's reply; and in the assessment of costs.

Plaintiff's petition is lengthy. Many parties were named as defendants and particular allegations affecting various parties are set out. We shall endeavor to limit this review to matters in which defendant Rogers is legally interested. A number of cases involving the Hugh W. Thomasson, deceased, estate have been before this court.^* One, Rogers v. Boatmen's Natl. Bk., 346 Mo. 911, 144 S.W. (2d) 79, involved a demand against Thomasson's estate by defendant Rogers for attorney fees and expenses. The allegations in plaintiff's petition affecting Rogers are in harmony with the facts stated in detail in said case. We therefore outline only the portions of the petition material here and refer the reader to the cited case for greater detail of the facts. The petition alleged that prior to July 25, 1930, Thomasson was the owner in fee of the real estate in question; that he died testate on January 28, 1933, and by his last will and testament, duly probated, devised the real estate to plaintiff in trust for the purposes in said will set forth, that plaintiff is the owner of said property in fee, and that each of the named defendants claim some interest in the real estate adverse to plaintiff's title. Subsequent allegations in the petition undertake to state in detail the claims of the various defendants as known to plaintiff. These allegations were to the following effect: Thomasson in 1930 was seventy-four years of age, weak of will, easily influenced, and the victim of one Grace Mahood (an adventuress living through the entrapment and defrauding of persons of the opposite sex), who conspired with others to defraud Thomasson of his property. Grace Mahood's undue influence and duress over Thomasson is alleged to have...