Bostwick v. Freeman

• Decision Date: 26 February 1942
• Docket Number: 37593
• Parties: C. T. Bostwick, Plaintiff in Error, v. James Freeman, Defendant in Error
• Court: Missouri Supreme Court

160 S.W.2d 713

349 Mo. 1

C. T. Bostwick, Plaintiff in Error, v. James Freeman, Defendant in Error

No. 37593

Supreme Court of Missouri

February 26, 1942

Appeal from Gentry Circuit Court; Hon. Ellis Beavers Judge.

Affirmed.

Leonard Johnson, W. L. Johnson, Thompson & Griswold and Perry A. Brubaker for plaintiff in error.

(1) Where the plaintiff in ejectment suit claims under administrator's deed and sale he need only show in the first instance the deed, the order of sale and the order of the court approving the sale. Prive v. Springfield Real Estate Assn., 101 Mo. 107. (2) A collateral attack is an attempt to impeach the judgment by matters dehors the record. Karicofe v. Schwaner, 196 Mo.App. 565, 196 S.W. 46. (3) The probate courts of this State are the creatures of the organic law and their jurisdiction and rules of procedure are definitely defined and limited by the statutes of the State of Missouri. It is a well settled rule that the powers of such court are entirely derivative. They possess no inherent powers and exercise such only as conferred by legislation. They have no common law or chancery jurisdiction. Elliott Estate v. Wilson, 27 Mo.App. 218; Jefferson County v. Cowan, 54 Mo. 237; Burckhartt v. Helfrich, 77 Mo. 376. (4) All recitals in administrator's deed are prima facie correct and such deed cannot be collaterally attacked. Johnson v. Beasley, 65 Mo. 250; Bray v. Adams, 114 Mo. 486. (5) Order proving sale and deed is prima facie evidence of a legal sale. Johnson v Beasley, 65 Mo. 250. (6) It being admitted that the Probate Court of Clinton County, Missouri, had jurisdiction to administer upon the estate of James W. Watson, deceased, and in the process of said administration had authority to make an order for the sale of real estate to pay debts of the estate of James W. Watson, deceased, its finding and making of an order to sell real estate to pay debts was a judicial act, and as such became a judgment, and as such was entitled to the same presumptions of verity as are accorded to the judgment of courts of general jurisdiction. Camden v. Plain, 91 Mo. 117; Robbins v. Boulware, 190 Mo. l. c. 43, 88 S.W. 674; Noland v. Barrett, 112 Mo. 181; Johnson v. Beazley, 65 Mo. 250; Scanland v. Walters, 265 S.W. 688. (7) The judgment of the probate court determining facts essential to its jurisdiction is conclusive as against a collateral attack. Trust Co. v. Moore, 263 S.W. 530; In re Judy, 166 Mo. 13; Camden v. Plain, 91 Mo. 117; In re Davidson, 100 Mo.App. 293; Yoeman v. Younger, 83 Mo. 424. (8) The judgments, orders and decrees of probate court having jurisdiction of the subject matter and between parties over which the court has jurisdiction cannot be collaterally questioned. Camden v. Plain, 91 Mo. 117; Sherwood v. Baker, 105 Mo. 472; Macy v. Stark, 116 Mo. 481; In re Davidson, 100 Mo.App. 263. (9) Where the right of the court to assume jurisdiction of a cause and proceeds to judgment depends upon the ascertainment of facts in pais, it is presumed in a collateral proceeding that the court, having retained jurisdiction, found such facts in favor of jurisdiction. A fortiori, if the court directly finds disputed facts which would be necessary to give jurisdiction to render judgment, the finding is conclusive in a collateral attack. Naeglin v. Edwards, 224 S.W. 764; Cobe v. Ricketts, 111 Mo.App. 105; Cox v. Boyce, 152 Mo. 576; Sullinger v. West, 211 S.W. l. c. 67; Thompson v. Pinell, 199 S.W. 1013; State v. Staten, 268 Mo. 288, 187 S.W. l. c. 44; Fitzgerald v. Road District, 195 S.W. l. c. 697. (10) Vacating a judgment collaterally can never be preferred or brought by a stranger under any circumstances. Harding v. Lee, 51 Mo. 241. (11) The filing of a petition in the probate court by an administrator for the sale of real estate to pay debts gives the court jurisdiction over the real estate. Smith v. Black, 231 Mo. 681, 132 S.W. 1129. (12) A judgment rendered by a court having jurisdiction of the parties and of the subject matter unless reversed or annulled in some proper proceeding is not open to contradiction or impeachment in respect to its verity, validity or binding effect by parties or privies in a collateral attack. 34 C. J., p. 511; Hess Warming Co. v. Elevator Co., 280 Mo. 162, 217 S.W. 493; Smith v. Black, 231 Mo. 681, 132 S.W. 1129; Jones v. Edeman, 223 Mo. 312, 122 S.W. 1047. (13) A collateral attack is an attempt to impeach a judgment by matters dehors of the record. 34 C. J., p. 520, sec. 827; Karicofe v. Schwaner, 196 Mo.App. 565, 196 S.W. 46. (14) Orders and decrees of a probate court in any case in which jurisdiction attaches are not open to contradiction or re-examination in a collateral proceeding. Veihmann v. Veihmann, 250 S.W. 565; McIntyre v. St. Louis, 286 Mo. 234, 227 S.W. 1047; Oldaker v. Spiking, 210 S.W. 59; Wright v. Hetherlin, 277 Mo. 99, 209 S.W. 871; Crum v. Hart, 286 Mo.App. 572, 156 S.W. 1089. (15) It has been held that a judgment may be impeached in a collateral attack on the grounds of fraud in its procurement by a stranger to it. However, that is an exception to the general rule that a judgment regular on its face cannot be attacked collaterally and applies to cases where the stranger attacking the judgment is prejudiced by it in respect to some pre-existing right. The doctrine usually is applied when there is a case of collusive judgment in fraud of creditors. A stranger whose rights accrue to him after the rendition of the judgment alleged to have been obtained by fraud, cannot attack such judgment on that ground in a collateral proceeding. Stoutimore v. Clark, 70 Mo. 471; Githens v. Barnshill, 184 S.W. 145; Abington v. Townsend, 197 S.W. l. c. 256. (16) The exception to the general rule regarding a collateral attack upon a judgment can avail only one whose rights have been affected by it, and not one who acquires an interest in the subject matter of the judgment after its alleged fraudulent procurement. The defendant in error Freeman, had no rights which were affected by the judgment of the Probate Court of Clinton County, Missouri, in ordering the sale of real estate and in the confirmation of the report of sale of the land in question he, the said Freeman, defendant in error, having acquired his alleged claim for right of title and to the possession of the tract of real estate in dispute long after said administrator's deed. Stoutimore v. Clark, 70 Mo. 471; Githens v. Barnshill, 184 S.W. 145; Abington v. Townsend, 197 S.W. l. c. 256. (17) Parties to an action and parties in privity with them cannot collaterally impeach a judgment on the grounds of fraud. DeGrow v. DeGrow, 7 Mo.App. 121; State ex rel. v. Ross, 118 Mo. l. c. 45; Reed Bros. v. Nicholson, 158 Mo. 624; Johnson v. Realty Co., 167 Mo. 325; Abington v. Townsend, 197 S.W. l. c. 256. (18) If the action has an independent purpose and contemplates some other relief or result although the overturning of the judgment may be important or even necessary to its success then the attack upon the judgment is collateral. Abernathy v. Railway Co., 286 Mo. 30, 228 S.W. 486; State ex rel. v. Ellison, 285 Mo. 301, 226 S.W. 559; State v. Bank, 279 Mo. 228, 213 S.W. 815. (19) Even if a judgment is voidable, that is so irregular or defective that it would be set aside or annulled on a proper direct proceeding for that purpose it is well settled as a general rule that it is not subject to a collateral tax. Reed v. Nicholson, 158 Mo. 624; Posthewaite v. Ghiselin, 97 Mo. 420; Gunby v. Cooper, 177 Mo.App. 354, 164 S.W. 152. (20) A judgment cannot be impeached on the grounds that there was fraud in the concoction of the judgment. If the answer could raise such an issue it would be to allow the destruction of a judgment for fraud upon a cause of action stated only in the answer. This cannot be done. Moss v. Fitch, 212 Mo. l. c. 502; Daniel v. Pryor, 227 S.W. 105; Howey v. Howey, 240 S.W. l. c. 456.

R. H. Musser for defendant in error.

(1) Watson on accepting the appointment of administrator became a debtor to the estate of James W. Watson and remained such debtor until he satisfied this debt shown by the judgment of the probate court and the execution issued therefor. Orniston v. Trumbo, 77 Mo.App. 310. (2) The judgment against Watson and his bondsmen on the accounting of a final settlement by the probate court, not being appealed from, from its date became valid and binding. State ex rel. Hyslop v. Billby, 50 Mo.App. 162. (3) Conveyances among relatives are signs from which fraud may be inferred. Matz v. Miami, 108 S.W.2d 975; Bank v. Blick, 115 S.W.2d 27; Fulkerson v. Sappington, 104 Mo. 472. (4) The plaintiff did not take the witness stand and was charged with the character, knowledge and intent of the conveyance to him, and was present all during the trial. Mason v. Perkins, 180 Mo. l. c. 708. (5) Where a conveyance is fraudulent and void a judgment creditor may levy an execution upon the property. Ryland v. Calson, 54 Mo. 513; Kinley v. MacKlin, 2 Mo.App. 241; Dunnica v. Coy, 28 Mo. 525; Woodard v. Mastin, 17 S.W. 308, 106 Mo. 324; Holden v. Wade, 200 S.W. 1053, 273 Mo. 231; Dalton v. Barron, 239 S.W. 97, 293 Mo. 36; McDonald v. Rumer, 8 S.W.2d 592. (6) Where the consideration is insufficient, fraudulent, or no consideration at all, the judgment creditor can enforce his collection on the land. Johnson v. Stevins, 66 S.W. 933, 167 Mo. 325; same, 76 S.W. 1021, 177 Mo. 581; Bank of Fulton v. Nicholas, 100 S.W. 613, 202 Mo. 309; Synder v. Free, 21 S.W. 847, 114 Mo. 300; Leaper v. Bates, 85 Mo. 224; Bank v. Fry, 115 S.W. 439, 216 Mo. 24; Ward v. Stutzman, 212 S.W. 65.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Plaintiff in error, plaintiff below, filed suit in ejectment against defendant in error to recover possession of the SW1/4 of the...