Charles v. White

• Decision Date: 14 July 1908
• Citation: 112 S.W. 545,214 Mo. 187
• Parties: CHARLES et al. v. WHITE et al. SAME v. NEILL et al.
• Court: Missouri Supreme Court

112 S.W. 545

214 Mo. 187

CHARLES et al. v. WHITE et al.

SAME v. NEILL et al.

Supreme Court of Missouri, Division No. 2.

July 14, 1908.

1. DEEDS—OPERATION — INTEREST CREATED — ESTATES TAIL—ABOLITION—EFFECT.

Where a grantor conveyed land to his five daughters by name, and the heirs of their body forever, the daughters took a life estate by virtue of the statute abolishing fee tails, with a remainder over to their respective children, born and to be born.

2. FRAUDULENT CONVEYANCES — WHO MAY ASSERT INVALIDITY—PARTIES TO CONVEYANCE.

A transfer of property in fraud of creditors, while void as to the latter, is binding on the parties and their privies.

3. JUDGMENT — CONFORMITY TO PLEADINGS — NECESSITY.

When a court goes beyond the allegation of the pleadings, and the prayer for relief and decrees a matter between parties defendant, to that extent its judgment is void and open to collateral attack.

4. SAME.

S. granted certain land to his five daughters, by name, for life, and then to the heirs of their body forever, and thereafter a creditor of S., after the latter's death, sued to set aside the deed: the petition alleging that S. had conveyed the land to avoid his debts, and prayed that the land be subjected to payment of his debts. The defendants in the creditor's suit, who were the daughters and three of the minor heirs, the remaindermen under S.'s deed, the rest being then unborn, answered, and the judgment decreed that the deed from S. to his daughters and their heirs be set aside and devested defendants of all interest under the deed, and vested the same in the widow and heirs at law of S.; but the land was never sold to satisfy the creditor's judgment, it being otherwise paid, and the decree setting aside the deed was never enforced. Defendants claim through the heirs of S., and contend that the decree in the creditor's suit setting aside the deed completely devested the remaindermen of all title therein. Held, that there was no issue raised in the creditor's suit between the life tenants and the remaindermen under S.'s deed, the only question in issue being whether the deed was void as against the complaining creditor, and the decree devesting the title of the remaindermen under the deed and vesting it in the heirs of S. was in excess of the court's jurisdiction and void.

5. SAME—CONSENT—SUFFICIENCY—EVIDENCE.

In a creditor's suit to set aside, as fraudulent, a deed to the grantor's daughters for life, remainder to their heirs, only three of whom were then in being, where the only evidence that the judgment therein was by consent was that the minutes of the judge's docket recited defendant's answer and a "decree by consent," but the minutes of the clerk showed "trial, judgment, and decree for plaintiff," and the judgment also showed that the parties announced ready for trial, and "the cause was tried by the court, and after hearing the evidence the court finds," etc., and the court made no findings that would warrant a decree of the character of the consent decree claimed to have been made, the preponderance of the evidence showed that the decree was made after trial, and not upon consent.

6. SAME—CONSENT BY INFANT PARTIES.

No court will go out of its way to hold infant litigants bound by a consent judgment, when they are incapable of giving consent, and, to invoke the doctrine that they are bound by consent of their guardian ad litem, the record should be entirely free from doubt as to the giving of consent.

7. SAME—RES JUDICATA—JUDGMENT AGAINST CODEFENDANTS—PROPRIETY.

While under proper pleadings a judgment may determine rights of defendants between themselves, the Code providing for such a proceeding, unless codefendants contest an issue with each other either upon the pleadings between themselves and plaintiffs or upon cross-pleadings between themselves, the judgment will not be res judicata in subsequent litigation between them.

8. QUIETING TITLE—RIGHT OF ACTION—DEFENSES—TITLE FROM COMMON SOURCE.

In an action to try title under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), permitting any person claiming title, etc., in real property, whether a present interest or in remainder, to institute an action against any person claiming any title in such property to ascertain the title and interest of the parties therein and to adjudge their respective title thereto, where both plaintiffs and defendants asserted title through S. as the common source, if plaintiffs have a better title through S., it is immaterial that there was a defect in their title, and defendants cannot take advantage thereof, as it was not incumbent on plaintiff to show an indefeasible title in himself, but only a better title than defendants.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Actions to try title by Betsy Ann Charles and others against Thomas White and others, and Betsy Ann Charles and others against George A. Neill and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded for further proceedings.

Horace Ruark and Sturgis & Geyer, for appellants. Geo. Hubbert and Clay & Sheppard, for respondents.

GANTT, J.

As the records in these two cases are practically identical in the facts disclosed and the questions of law presented, they will be treated together.

The action is one to determine title under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667). They were tried together in the circuit court and are submitted to this court upon the same brief. The plaintiffs claim title to the land as remaindermen under the deed of Stephen D. Sutton to his five daughters of date October 25, 1860. Stephen D. Sutton is the common source of title, and by that deed he conveyed the lands in controversy, to wit, the E. ½ of the S. E. ¼ of section 19, in township 25, range 31, and also a portion of the W. ½ of the aforesaid quarter section containing 64 acres, and a certain other tract containing 3 acres, or more in another portion of said quarter section described by metes and bounds, and another tract containing 9 acres more or less in said quarter section described by metes and bounds and lots 5, 6, and 7, in block 4, in the town of Neosho all of said real estate lying in Newton county, Mo. The habendum clause of the said deed was in these words: "To have and to hold, the aforegranted premises with all the rights, privileges and appurtenances thereto belonging or in any wise appertaining unto the said Betsey Ann Charles, Cintilda Sutton, Polina Sutton, Salina Sutton and Minerva Sutton and to the heirs of their bodies respectively forever, free from the claim or claims of any and all persons whatsoever." These daughters were at that time unmarried, except Mrs. Betsy Ann Charles; but they were all afterwards married, and all except Polina Sevier had children, "heirs of their bodies," and the plaintiffs herein are the heirs of the bodies of three of said daughters, the grantees in said deed. The plaintiffs claim, as remaindermen under said deed, that their mothers, each, took a life estate in one-fifth of the said land, with remainder to their respective children, these plaintiffs. The children of one of said grantees in said deed, Salina Ruark, are not parties to this suit. The one daughter, Polina Sevier, who never had any children, died in 1898. Minerva married James A. Stockton, and died in 1896, leaving three children, who are plaintiffs herein. Mrs. Betsy Ann Charles is still living, and she, with her four children, the heirs of her body, are plaintiffs herein. It is conceded by the pleadings, and the evidence shows, that the defendant George Neill and wife and Thomas White have acquired by mesne conveyances, and own, a life estate of all of the five grantees in said deed from Stephen D. Sutton to his daughters and the heirs of their bodies in the lands involved in these two cases, but that they have never acquired, by deed or conveyance, the interest or title of any of the heirs of the bodies of said grantees, the plaintiff's herein; nor have said heirs of the bodies of said grantees ever made any deed or conveyance of or parted with their interest in said land. The main defense is that a judgment was rendered in the circuit court of Newton county at the March term, 1872, which it is claimed had the effect of setting aside and annulling the Sutton deed to his daughters with the remainder over to plaintiffs, and that Sutton's children, inclusive of his daughters named as grantees in said deed, Sutton having died in the meantime, then took said land in fee, and consequently the defendants, who claim by mesne conveyance from them hold said land in fee. The circuit court took this view of the case, and, after finding "that under the pleadings and evidence Stephen Sutton is the common source of title under whom the parties claim," refused to declare "that the judgment obtained in this court in the case of Thomas Rutledge v. Betsy Ann Charles et al. furnishes no defense to this action," and rendered judgment for defendant. As to this judgment, plaintiffs contend: That the judgment and pleadings therein show that the said suit was a creditor's bill, wherein it was alleged and found that Stephen D. Sutton was indebted to the plaintiff therein, Thomas Rutledge, on a promissory note at the time he made the deed to his said five daughters conveying to them and to the heirs of their bodies the lands in controversy; that such conveyance was made by Sutton "for the purpose of avoiding the payment of his just debts, and without any valuable consideration." It is further stated that said Sutton had died, that his estate was in the process of administration, the claim of plaintiff Rutledge allowed in the probate court, and the funds of the estate exhausted without paying but a small part of the claims. The prayer of the petition was that the deed be set aside and "the land subjected to the payment of plaintiff's debts." The defendants in that case were the children of Sutton, including the...