Boone v. Ledbetter

• Decision Date: 13 January 1947
• Docket Number: No. 20795.,20795.
• Parties: FANNIE BOONE, RESPONDENT v. H.L. LEDBETTER AND O.R. AINSWORTH LEDBETTER, APPELLANTS.
• Court: Missouri Court of Appeals

200 S.W.2d 601

FANNIE BOONE, RESPONDENT v. H.L. LEDBETTER AND O.R. AINSWORTH LEDBETTER, APPELLANTS.

No. 20795.

Kansas City Court of Appeals, Missouri.

Opinion delivered January 13, 1947.

Appeal from Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

APPEAL DISMISSED.

Jesse I. Moritz and Walter A. Raymond for appellants.

The Trial Court Did Not Have Authority or Jurisdiction to Subject the Land in Question to a Lien in This Proceeding. The Lack of Such Authority and Jurisdiction Is Shown on the Face of the Record and the Judgment Attempting to Impress a Lien on the Land Is Absolutely Void and Binds No One. Aetna Insurance Co. v. O'Malley, 342 Mo. 800, 118 S.W. 2d 3; Dusenberg v. Rudolph, 325 Mo. 881, 30 S.W. 2d 94; United Creameries Co. v. Strother, 342 Mo. 1155, 119 S.W. 2d 762; Coombs v. Benz, 232 Mo. App. 927, 151 S.W. 2d 695; State ex rel. Green v. James, Mo. Sup., en banc, 195 S.W. 2d 669, 672-3 (5); General American Life Ins. Co. v. Leavenworth, 347 Mo. 876, 149 S.W. 2d 360; Hawkins v. Heagerty, 348 Mo. 914, 156 S.W. 2d 642; State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W. 2d 52; Hunter v. Hunter, 327 Mo. 817, 39 S.W. 2d 359; Marchand v. Chicago, B. & Q. Ry. Co., 147 Mo. App. 619, 127 S.W. 387; Steele v. Brazier, 139 Mo. App. 319, 123 S.W. 477; State ex rel. Auchincloss, Parker & Redpath, Inc., v. Harris, 349 Mo. 190, 159 S.W. 2d 799; General American Life Ins. Co. v. Leavenworth, 347 Mo. 876, 149 S.W. 2d 360; Manufacturers Bank and Trust Company v. Rossen Furniture Co., 348 Mo. 1177, 159 S.W. 2d 276; Buckley v. Maupin, 344 Mo. 193, 125 S.W. 2d 820; State ex rel. Brigance v. Smith, 345 Mo. 793, 135 S.W. 2d 355; Coleman v. Hagey, 252 Mo. 102, 158 S.W. 829; Lindsay v. Evans, 174 S.W. 2d 390.

C.W. Prince and Wm. Dennis Bush for respondent.

Respondent was entitled to a vendor's lien upon her land which appellants had obtained by fraud, giving her nothing of value therefor, though pretending to give her property of the value of $12,150 above the incumbrances. McTernan v. Mason, (Mo. App.) 188 S.W. 923; Mollett v. Beckman, 78 S.W. 2d 886; Pratt v. Clark, 57 Mo. 189; Bennett v. Shipley, 82 Mo. 448; Johnson v. Burks, 103 Mo. App. 221, 77 S.W. 133; Florida v. Morrison, 44 Mo. App. 529; Bishop v. Seal, 87 Mo. App. 256; Lenox v. Earls, 185 S.W. 232 (Mo. App.); Hunter v. Hunter, 327 Mo. 817, 39 S.W. 2d 359.

CAVE, J.

This is an appeal from an order of the trial court overruling appellants' (defendants) motion to vacate a judgment because of alleged errors patent of record which rendered the judgment void. The motion was filed after the time expired for filing a motion for new trial and at a subsequent term of court. Such a proceeding is authorized under conditions and allegations made here. Harrison v. Slaton, 49 S.W. (2d) 31, 34; State ex rel. Potter v. Riley, 219 Mo. 667; Shuck v. Lawton, 249 Mo. 168. For a learned discussion of such motions see, Cross, et al. v. Gould, 131 Mo. App. 585; and Simms v. Thompson, 291 Mo. 493.

Plaintiff's amended petition was in two counts. The first count alleged that prior to the month of July, 1928, she was the owner of certain described real estate located in Jackson County, Missouri; that at that time defendant H.L. Ledbetter represented to plaintiff that he desired to convey to plaintiff three residential properties located in Kansas City, Missouri, which he owned, in exchange for her described real estate; that said defendant further represented to plaintiff that his said properties were occupied by tenants under lease yielding a gross rental income of $143 per month and had a market net value of $12,150; that said representations were false and untrue in that said properties were not occupied by tenants under lease and did not yield $143 per month, and that the equities in said properties were worthless; that, at the time he made said representations, defendant knew they were false and untrue and made them for the purpose of deceiving and cheating the plaintiff; that plaintiff relied upon the truth of said representations and, so relying, conveyed her described land to defendant; that said defendant H.L. Ledbetter, shortly after receiving title to her tract of land, conspiring with the other defendants for the purpose of preventing and hindering her from recovering her said land, caused the same to be conveyed to defendant O.R. Ainsworth Ledbetter, and caused said last named defendant to convey said land to defendant C. Clayton in trust to secure a fictitious $8,000 note, payable to defendant H.J. Slusher; and further conspiring against plaintiff, defendant caused another conveyance to be recorded wherein said defendants O.R. Ainsworth Ledbetter and H.L. Ledbetter conveyed the same to James F. McCaffrey, as trustee, to secure the payment of a fictitious $4,000 note to defendant Grover Young. The first count then alleged "the foregoing wrongful and malicious acts have caused plaintiff to suffer mental anguish and inconvenience. That because of all of the foregoing, plaintiff has been damaged in the sum of $12,150", and prayed judgment for that amount together with punitive damages in the sum of $2,000.

The second count adopted all the averments contained in the first count; and further alleged that all the defendants were nonresidents of the State of Missouri, and that they have no property, personal or real, in this state, other than their pretended interest in the tract of land which plaintiff had conveyed to defendant H.L. Ledbetter; that said defendants are insolvent; that plaintiff has no adequate remedy at law, and that she is entitled to have a lien declared against the property which she had conveyed to the defendant "for the amount to which plaintiff is entitled under the averments of the first count herein", and prayed the court to declare a lien on said tract of land "for the amount found to be due her under the first count"; that the court decree foreclosure of said lien, and for such other relief as to the court may seem just and proper.

Defendant H.L. Ledbetter filed separate answer to the first count, admitting he entered into an exchange contract with plaintiff for the real estate described; that warranty deeds of exchange were made and that after he received plaintiff's deed and recorded the same he, for a valuable consideration, conveyed said property to defendant O.R. Ainsworth, who later became O.R. Ainsworth Ledbetter, one of the defendants herein, but he specifically denied that he made any false and fraudulent representations to the plaintiff concerning the rental income from his said property or the net value thereof, or that he conspired with any person in conveying or encumbering said property, as alleged in plaintiff's petition.

Defendant O.R. Ainsworth Ledbetter filed answer to the first count, admitting that defendant H.L. Ledbetter had conveyed to her the property which he received from plaintiff, and that she and H.L. Ledbetter later made the conveyances in trust to secure the debts described in the first count; that all of such conveyances were made in good faith and for value received, and denied each and every other allegation contained in count one.

The answers of the two Ledbetters to the second count of plaintiff's petition adopted all the allegations in their answers to the first count, and, in addition, admitted that they were nonresidents of the State of Missouri, but denied all other allegations and averments contained in count two. Their answers then averred that they had "no right, title or interest, neither legal nor equitable, in the described real property upon which plaintiff seeks to establish the lien sought for in the prayer of count two of plaintiff's amended petition". They prayed that count two be denied, and that they have and recover their costs incurred.

A trial to a jury of count one resulted in a verdict and judgment for plaintiff and against these two defendants (appellants) in the sum of $6,075 for compensatory damages only. That judgment was entered at the March, 1945, term and in due time became final. Thereafter, and at the regular January, 1946 term, a trial was had on the second count, which was a suit in equity; and on the 21st day of February, 1946, but during the January term, the court entered a decree in favor of the plaintiff, which recited that the plaintiff, prior to July, 1928, was the owner of certain described real property, and that on said date plaintiff conveyed said realty to the defendant H.L. Ledbetter, who, by fraudulent representations of value of realty conveyed by him to plaintiff in exchange, "has underpaid the plaintiff in the sum of $6,075"; that for the purpose of hindering and delaying the plaintiff in the realization or recovery of said amount so due her, said defendant, conniving with the defendant O.R. Ainsworth (now O.R. Ainsworth Ledbetter) fraudulently conveyed the above described realty to said co-defendant and both defendants shortly thereafter wilfully and fraudulently caused incumbrances to be filed for record in the office of the Recorder of Deeds, thereby creating spurious mortgage liens; that the conveyance of said realty by defendant H.L. Ledbetter to his co-defendant O.R. Ainsworth Ledbetter was made for the purpose of creating a secret and fraudulent trust in favor of defendant H.L. Ledbetter, and is therefore clearly and utterly void "and because thereof the title to said realty has not left H.L. Ledbetter who is now and has been since July 12, 1928, the legal owner of said realty". The court also found that both defendants are and have been for many years, nonresidents of the State of Missouri and "ordered and adjudged that a vendor's lien be and now is declared upon the title to the land herein above described in the sum of $6,075" and ordered said lien foreclosed unless the amount of the lien was paid on or before March 21, 1946, and assessed costs against defendants.

The defendants appeared at the trial on count one and vigorously...