Castorina v. Herrmann

• Decision Date: 21 April 1937
• Docket Number: 34334
• Citation: 104 S.W.2d 297,340 Mo. 1026
• Parties: Pasquale Castorina v. Arthur Herrmann, Appellant
• Court: Missouri Supreme Court

104 S.W.2d 297

340 Mo. 1026

Pasquale Castorina v. Arthur Herrmann, Appellant

No. 34334

Supreme Court of Missouri

April 21, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Robert W McElhinney, Judge.

Affirmed and remanded.

Alfred H. Kerth, Dunbar & Dubail and Bryan Wilson for appellant.

(1) The deed of trust from Roth to Herrmann was filed before the sale under the respondent's judgment and takes precedence over respondent's title acquired at that sale. Davis v Owenby, 14 Mo. 170; Valentine v. Havener, 20 Mo. 133; Dixon v. Dixon, 181 S.W. 84. (a) The principle is stare decisis and a rule of property. Reed v. Ownby, 44 Mo. 204; Sappington v Oeschli, 49 Mo. 244. (2) The filing of the transcript of the judgment in the justice court case of Castorina v. Joe Campise and Caterina Campise did not affect the validity of the lien of the appellant's deed of trust. (a) The record title was in Roth, which is sufficient to protect appellant, a bona fide purchaser. Odle v. Odle, 73 Mo. 289. (b) Even if Roth held title in fraud of creditors, the appellant must be protected. Secs. 3119, 3122, R. S. 1929; Hurley v. Taylor, 78 Mo. 238; Reynolds v. Faust, 179 Mo. 21, 77 S.W. 855. (3) Herrmann was not a party to the suit of Castorina v. Joe Campise et al., and the proceedings and decree therein were res inter alios acta, not admissible in evidence in this cause and not binding on Hermann. Cravens v. Jameson, 59 Mo. 68; Abington v. Townsend, 271 Mo. 602, 197 S.W. 253; Chase Natl. Bank v. Norwalk, 291 U.S. 431, 78 L.Ed. 894, 54 S.W. 475. (4) The action of the trial court in treating the decree in the case of Castorina v. Joe Campise et al., as res judicata against appellant in the present case was erroneous and amounts to the taking of appellant's property without due process of law in contravention of Section 30, Article II of the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States. (a) Substantial rights in property cannot be impaired without opportunity being given to the defendant to present his case and Herrmann was entitled to his day in court. Mott, Due Process of Law, pp. 217-219; In re Letcher, 269 Mo. 140, 190 S.W. 19; State ex rel. Hurwitz v. North, 304 Mo. 607, 264 S.W. 678; State ex rel. Anderson Motor Serv. Co., Inc., v. Pub. Serv. Comm., 97 S.W.2d 116. (b) Herrmann's deed of trust is property. Illinois Trust & Savs. Bank v. Des Moines, 224 F. 620. (c) The judicial department is governed in the exercise of its functions by the rule of due process of law. Ex parte Irwin, 6 S.W.2d 597. (d) The opportunity to defend must not merely be colorable and illusory. 12 C. J. 1236-37; Happy v. Mosher, 48 N.Y. 313. (5) Upon no theory under the pleadings and evidence could respondent have recovered and the order granting a new trial has nothing on which to stand. Ottomeyer v. Pritchett, 178 Mo. 160, 77 S.W. 62; Baker v. Gates, 279 Mo. 630, 216 S.W. 775.

Joseph B. Catanzaro for respondent.

(1) The judgment obtained by plaintiff in the justice of the peace court was a lien against the property upon the filing of the transcript January 11, 1930. Sec. 1144, R. S. 1929. (2) An execution sale transfers the title of the judgment creditor as of the beginning of the judgment lien and vests the purchaser with a title superior to one derived from a subsequent mortgage lien. The sale relates back to the date of the lien. Bush v. White, 85 Mo. 339; Pepperdine v. Bank of Seymour, 73 S.W. 890, 100 Mo.App. 387; Owen v. Baker, 14 S.W. 175, 101 Mo. 407; Norman's Land & Mfg. Co. v. Hunter, 270 Mo. 62, 193 S.W. 19. (3) A deed of trust does not become a lien against the property, as to innocent third parties, until it has been deposited with the recorder for record. Sec. 3041, R. S. 1929.

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

OPINION

HYDE

This is an action in equity to set aside a deed of trust, conveying real estate in St. Louis County, to secure a $ 1500 note. Plaintiff alleged that this deed was wholly without consideration; that it was a fraudulent conveyance; and that it was in fact executed after an injunction had been granted by the Circuit Court of St. Louis County (upon plaintiff's petition to set aside the fraudulent conveyance of the land, described in this deed of trust, to the maker thereof) to restrain the maker from transferring, selling, or encumbering the title to this land. The trial court found for defendant and entered judgment dismissing plaintiff's petition. At the same term, the court sustained plaintiff's motion for a new trial. Defendant has appealed from the order granting plaintiff a new trial.

The appeal herein was granted to the St. Louis Court of Appeals, which upon motion of both parties transferred the cause here upon the ground that title to real estate was involved. Under the prior decisions of this court such an action to declare void, and remove as a cloud upon title, a deed of trust is within the jurisdiction of this court upon that ground. [Hendrix v. Goldman (Mo.), 92 S.W.2d 733, and cases cited.]

The record herein discloses that the evidence was heard at the May Term, 1932, of the Circuit Court of St. Louis County, but that then "the cause was submitted and judgment reserved." After holding the case under advisement for over a year, judgment of dismissal was entered at the September Term, 1933. Thereafter, during this same judgment term, the court entered an order granting plaintiff a new trial, sustaining plaintiff's timely motion for new trial "on the third, fourth and fifth grounds thereof." Of course, if any of these grounds were good, we must affirm the order granting plaintiff a new trial both because the court acted during the judgment term and because plaintiff's motion was timely. The fourth ground was that the court in another suit by plaintiff against the Campises, Roth and his grantee had found their conveyances to be fraudulent. That must be eliminated from consideration, because it was not a good ground for a new trial or any relief to plaintiff herein, both because defendant was not a party to that suit, and because, even if he had been, defendant's transaction with one of the parties therein could only have been avoided by a showing therein that his deed of trust was without consideration or that he was otherwise a party to the fraud of the parties involved in that case. [Sec. 3122, R. S. Mo. 1929; Hurley v. Taylor, 78 Mo. 238; Lionberger v. Baker, 88 Mo. 447; Gordon v. Ritenour, 87 Mo. 54; Craig v. Zimmerman, 87 Mo. 475; Gust v. Hoppe, 201 Mo. 293, 100 S.W. 34; Peoples Bank v. Jones, 338 Mo. 1048, 93 S.W.2d 903.]

However, because the view we take will necessitate a new trial, we think it should also be pointed out that, if defendant's deed is upheld as bona fide and valid against plaintiff, its priority would not be affected by the filing of the transcript of a judgment, obtained in a court outside of the county, against persons who did not then hold the record title to the land. It is the purpose of Section 3122, Revised Statutes 1929, and our recording acts to protect such a mortgagee. Section 1144, Revised Statutes 1929, makes such a judgment, from the time of filing transcript, "a lien upon the real estate of the person against whom the judgment was rendered." This would make it a lien upon land fraudulently conveyed before it was filed, because as to creditors such a conveyance is made, by Section 3117, Revised Statutes 1929, "clearly and utterly void." For this reason, it is held that when land has been fraudulently conveyed the judgment creditor may resort to equity, in the first instance, to have the conveyance set aside so that it may be sold under the lien thereof free from any doubt due to such conveyance; or he may disregard the conveyance, make a levy and sale to enforce such lien, and then sue to cancel the conveyance as a cloud on his title. [Lionberger v. Baker, 88 Mo. 447; Slattery v. Jones, 96 Mo. 216, 8 S.W. 554, 9 Am. St. Rep. 344; Woodard v. Mastin, 106 Mo. 324, 17 S.W. 308; Welch v. Mann, 193 Mo. 304, 92 S.W. 98; Spindle v. Hyde, 247 Mo. 32, 152 S.W. 17; Oldham v. Wade, 273 Mo. 231, 200 S.W. 1053; Dalton v. Barron, 293 Mo. 36, 239 S.W. 97.] In such a situation, the courts favor the former course, but on either course it is necessary to resort to equity for aid because there is not a full, complete, and adequate remedy at law against fraudulent conveyances. "The very ground of (equity) jurisdiction . . . is that the property sought to be subjected to the payment of the judgments cannot be reached by legal process" (Dalton v. Barron, supra), and, in the absence of some step beyond the mere filing of such a transcript, innocent bona fide mortgagees, purchasers, or vendees, from a record owner not a party to the judgment, are protected. The question here must be whether or not defendant was such an innocent bona fide mortgagee.

The other two grounds, upon which the motion for new trial was sustained, do not go to any specific matters but are only generalities. They contain the statements that "the said findings, orders and decrees are contrary to the evidence in the case;" and that "the decree under the evidence and in equity should have been for the relief prayed for by the plaintiff." Our rule is that such general statements in a motion for new trial serve no purpose in preserving anything for appellate review. [Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914; Matthews v. Karnes, 320 Mo 962, 9 S.W.2d 628; Bond v. Williams, 279 Mo. 215, 214 S.W. 202.] That does not mean, however, that such general statement can serve no purpose at all. [See Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471, and cases cited.] In our practice, a motion for new trial has a dual function. One is as to obtain relief on appeal, and when overruled,...