Capitain v. Mississippi Valley Trust Co.

• Decision Date: 23 December 1911
• Citation: 240 Mo. 484,144 S.W. 466
• Parties: CAPITAIN et al. v. MISSISSIPPI VALLEY TRUST CO. et al.
• Court: Missouri Supreme Court

144 S.W. 466

240 Mo. 484

CAPITAIN et al. v. MISSISSIPPI VALLEY TRUST CO. et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1911.

Rehearing Denied February 29, 1912.

1. JUDGMENT (§ 455) — EQUITABLE RELIEF — ACTIONS — JURISDICTION — COUNTY OF VENUE.

The petition alleged that defendant S. was the daughter of W.; that plaintiffs were the only children of S.; that W. conveyed certain realty in trust for S.'s separate use during her life and after her death in trust for the heirs of her body in fee, provided that any surviving child should hold its interest discharged of the trust upon becoming 21 years of age; that the trustee sold the land under a decree, which decree and the sale were void because the court acquired no jurisdiction of plaintiffs, who were infant defendants in the proceedings for the sale, no service and return having been made upon them pursuant to statute, and because the court had no jurisdiction of the subject-matter and no power to sell the remainders vested in plaintiffs for the life tenant's benefit, and because the guardian ad litem appointed for the infant defendants in such proceedings was appointed, and his answer filed, without his knowledge, "wherefore plaintiffs prayed the said decree * * * and said conveyance be canceled, set aside, and for naught held as to these plaintiffs." Held, that the action was in equity to cancel a judgment, so that, under Rev. St. 1909, § 2516, providing that proceedings on an injunction to stay a suit or judgment shall be had in the county where the judgment was rendered, which statute applies to actions to annul a judgment, the present action was properly brought in the circuit court for St. Louis city; the judgment authorizing sale by the trustee having been rendered there, though the land was situated in St. Louis county.

2. INFANTS (§ 105) — JUDGMENT — VALIDITY — SERVICE.

A judgment ordering a sale of land by a trustee in proceedings against infant defendants was not void on its face for want of proper service, where it recited the appointment of a guardian ad litem for such infants, and that he acted for them, though the evidence showed that he knew nothing of the proceedings.

3. INFANTS (§ 110) — JUDGMENT — EQUITABLE RELIEF — CANCELLATION.

Where a judgment is not void on its face for want of service upon infant defendants because it shows the appointment of a guardian ad litem, but the evidence shows that he knew nothing of the proceeding, an equitable action will lie to cancel the judgment at the suit of such infants.

4. TRUSTS (§ 194) — SALE — PROCEEDINGS — VALIDITY — LACK OF SERVICE.

Where there was no valid service upon infant remaindermen in proceedings by a trustee to sell land, the judgment of sale was void as to them.

5. INFANTS (§ 90) — ACTIONS — PROCESS — GUARDIAN AD LITEM — APPEARANCE.

If infant defendants were not in fact served and proper proof of service made, no appearance by a guardian ad litem appointed without authority could give the court jurisdiction.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Suit by Ringrose J. Capitain and others against the Mississippi Valley Trust Company and others. From a judgment dismissing the bill, plaintiffs appeal. Reversed and remanded.

Wm. F. McLaughlin, Robert & Robert, and Wm. L. Becktold, for appellants. Jos. S. Laurie and Albert Blair, for respondents.

GRAVES, P. J.

This case has for its companion the case of John G. Priest, Trustee, et al. v. Ringrose J. Capitain et al., 236 Mo. 446, 139 S. W. 204, decided at the last term of this court, and reference should be had to the opinion in the Priest Case for some of the details in the case at bar. As will be seen, the Priest Case was one in which John G. Priest, as trustee under a deed made by Ringrose J. Watson, applied to the circuit court of the city of St. Louis for an order to sell the real estate. An attempt was made to bring the present plaintiffs into court by service of process upon them in the state of California. In this Priest Case we held that the circuit court did not acquire jurisdiction over the plaintiffs in this case because there was no valid proof of the service of the writ of summons upon them in the state of California. In the original Priest Case the lands were ordered sold and were sold in accordance with such order of the circuit court. These plaintiffs were infants.

In the case at bar the plaintiffs seek to have the judgment and decree rendered by the circuit court of the city of St. Louis in the original Priest Case declared null and void and the deeds made in pursuance of said sale under such order and decree declared null and void, and for other and further relief as called for in the prayer. The petition is exceedingly verbose and sets out in full the matter discussed by this court at the last term in said Priest Case, supra. The petition, omitting these details, reads: "Now come the plaintiffs in the above-entitled cause, Ringrose J. Capitain, Chouteau Capitain, and Isabelle Capitain Williams, and by leave of court file this their amended petition, and for their cause of action state: That the defendant Sophie M. Capitain was the daughter of Ringrose J. Watson and intermarried with Frank J. Capitain. That the plaintiffs Ringrose J. Capitain and Chouteau Capitain were the only sons born of said marriage, and are still living. That the plaintiff Isabelle Capitain Williams, now the wife of ____ Williams, and the defendant Manette Howenstein, the wife of ____ Howenstein, now a widow, were the only daughters born of said marriage. That on the 6th day of October, 1869, Ringrose J. Watson was the owner in fee of the following described property: Lot No. 3 of the subdivision of the estate of Ringrose D. Watson, deceased, containing 33.32 acres, being lot No. 3 of subdivision of a tract of 105 arpents conveyed to R. D. Watson by John Mackey, in United States survey No. 2,033, in the county of St. Louis, state of Missouri. That on said day said Ringrose J. Watson conveyed to Joseph Bogy and Edward T. Farish, by deed record in Book 394, p. 527, of the office of the recorder of deeds of the city, then county, of St. Louis, said real estate and other real estate therein described. That said conveyance was made to said Bogy and Farish in trust for the sole and separate use of Sophie M. Capitain, the daughter of the said Watson (said Sophie then being a feme sole named Sophie M. Watson), for and during her life, free from the control of her husband, should she marry, and after her death in trust for the heirs of the body of the said Sophie M. Capitain (formerly Watson) in fee; provided that so soon after the death of the said Sophie M. Capitain (formerly Watson) as any surviving child of the said Sophie shall have attained the age of 21 years, such child shall hold its interest in said property wholly discharged of the trust; and also providing for further disposition of the property in case the said Sophie M. Capitain (formerly Watson) died leaving no children. A copy of said trust deed is hereto attached and marked `Exhibit A,' and made a part hereof." Here follow the allegations as to how Priest became trustee and the court proceedings begun by him to procure the sale, and allegations as to the sale itself and the deed made thereunder. The details of these matters are found in the opinion in the Priest Case, supra.

The petition in the present case thus concludes: "That under said decree the land herein described was ordered sold, and said John G. Priest, as trustee and commissioner, sold said land to A. K. Stewart, and on October 28, 1892, acknowledged a deed conveying said land to said A. K. Stewart. That on the 2d day of January, 1892, defendant the Mississippi Valley Trust Company was duly appointed trustee under said deed in the place and stead of said John G. Priest. That the defendants Sophie M. Capitain and Manette Howenstein are nonresidents of this state. That Sophie M. Capitain is now sui juris and is a resident of the city and county of Los Angeles, state of California. That the whereabouts of Manette Howenstein are unknown, and that the ordinary process of law cannot be served upon the said Sophie M. Capitain and the said Manette Howenstein. That the plaintiffs are the only surviving children of the said Sophie M. Capitain except Manette Howenstein (formerly Capitain), who is also a child of the said Sophie M. Capitain, and a widow. Th...