Crawford v. Dixon
| Decision Date | 05 January 1903 |
| Parties | MALLIE CRAWFORD, Respondent, v. DELPHIA DIXON et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Cedar Circuit Court.--Hon. H. C. Timmonds, Judge.
AFFIRMED.
Judgment affirmed.
J. P Veerkamp, J. E. Stephens and Rechow & Pufahl for appellants.
(1) The circumstance that the administration was delayed for a few months is no evidence of any fraud. The only way that title can legally pass to heirs is through an administration. State ex rel. v. Moore, 18 Mo.App. 406; Becraft v. Lewis, 41 Mo.App. 547; Boeger v. Landenburg, 42 Mo.App. 12; Adey v. Adey, 58 Mo.App. 408; Jacobs v. Maloney, 64 Mo.App. 270; Hendrix v Dixon, 69 Mo.App. 204; Smith v. Denny, 37 Mo 20. (2) The petition fails to state facts sufficient to constitute a cause of action and the objection to the introduction of any evidence should have been sustained. Smith v. Sims, 77 Mo. 270; Reed v. Bott, 100 Mo. 66; Hoester v. Sammelman, 101 Mo. 624; Williams v. Railroad, 112 Mo. 496; Nichols v. Stephens, 123 Mo. 117; Smith v. Miller, (Tenn.) 42 S.W. 182; Bliss on Code Pleading, section 211; Redpath v. Lawrence, 42 Mo.App. 109. (3) In order to justify a court of equity to set aside a judgment for fraud, the evidence must be clear and cogent, and must show fraud in the very act of procuring it. Freeman on Judgments (3 Ed.), sec. 489; Ramsey v. Hicks, 53 Mo.App. 190; Hasler v. Schopp, 70 Mo.App. 475; Railway v. Warden, 73 Mo.App. 122; Smith v. Sims, 77 Mo. 270; Payne v. O'Shea, 84 Mo. 133; Irvine v. Leyh, 102 Mo. 206; Irvine v. Leyh, 124 Mo. 361; Murphy v. De France, 101 Mo. 157; Murphy v. De France, 105 Mo. 64; Richardson v. Stow, 102 Mo. 43; Stave Co. v. Butler Co., 121 Mo. 631; Hamilton v. McLean, 139 Mo. 685; Bates v. Hamilton, 144 Mo. 11; Fears v. Riley, 148 Mo. 59; Neun v. Building Ass'n, 149 Mo. 80; Moody v. Peyton, 135 Mo. 489; Nichols v. Stevens, 123 Mo. 116; Smith v. Miller, (Tenn.) 42 S.W. 182. (4) An illegal allowance or error is not sufficient to set aside a judgment. Jones v. Brinker, 20 Mo. 88; Lewis v. Williams, 54 Mo. 200; Murphy v. De France, 101 Mo. 151; Murphy v. De France, 105 Mo. 64; Cooper v. Duncan, 20 Mo.App. 359; Standard v. Lacks, 25 Mo.App. 69; Railway v. Warden, 73 Mo.App. 122. (5) Judgments of the probate court possess the same efficacy and solemnity, and the same presumption of validity attach to them as to judgments of the circuit court. Cooper v. Duncan, 20 Mo.App. 359; Johnson v. Beazley, 65 Mo. 250. (6) There could by no possibility be fraud when, as in this case, there were valid and legal claims against the estate. Appellate courts have sustained numerous judgments where the evidence was not nearly as convincing as in these claims. Koch v. Hebel, 32 Mo.App. 106; Ramsey v. Hicks, 53 Mo.App. 191; Rousick v. Boverschmidt's Adm'r, 63 Mo.App. 422; Bosard v. Powell, 79 Mo.App. 186; Hart v. Hart's Adm'r, 41 Mo. 443; Reando v. Misplay, 90 Mo. 254; Sprague v. Sea, 152 Mo. 330; Smith v. Sims, 77 Mo. 272; Henry v. McKerlie, 78 Mo. 429; Moody v. Peyton, 135 Mo. 492. (7) There is a misjoinder of parties defendant. Neither the probate judge nor the administratrix are necessary parties; the other defendants are not interested in each other's claims, and have no connection with each other. Mayberry v. McClurg, 51 Mo. 259. (8) The plaintiff had adequate remedies at law. First. She could have appealed from the judgments of allowances. Second. She could have resisted the order of sale. Third. She could have opposed the report of sale if any had been made, and have appealed from any of said orders. Casey v. Murphy, 7 Mo.App. 248; Fenix v. Fenix, 80 Mo. 33. Fourth. She could have moved to set the judgment aside under section 214, Revised Statutes 1899.
W. W. Younger and Cole & Burnett for respondent.
(1) On the death of the ancestor the title of land descends to the heirs; administration is not necessary to pass title of real estate to the heirs. R. S. 1899, sec. 2908; Thorp v. Miller, 137 Mo. 231; Chambers' Adm'r v. Wright's Heirs, 40 Mo. 482. (2) Petition states facts sufficient to constitute a cause of action, collusion or a judgment on a fictitious claim, constitutes a fraud in procuring the judgment. Wonderly v. Lafayette Co., 150 Mo. 635; Link v. Link, 48 Mo.App. 345; Bresnehan v. Price, 57 Mo. 422; Damschroeder v. Thias, 51 Mo. 104. (3) The evidence showed fraud in the very act of procuring the judgment. Wonderly v. Lafayette Co., 150 Mo. 635; Link v. Link, 48 Mo.App. 345. (4) The plaintiff was not a party to the proceedings in the probate court, and she could not interpose the fraud there and for that reason the strict rule does not apply to her. Irvine v. Leyh, 102 Mo. 207; Wonderly v. Lafayette Co., 150 Mo. 650. (5) Simply an illegal allowance or error is not ground for setting aside an allowance, but when an allowance was obtained by fraud it will be ground for impeaching the judgment and setting it aside. Mayberry v. McClurg, 51 Mo. 256; Miles v. Jones, 28 Mo. 87; Link v. Link, 48 Mo.App. 345. (6) As to appellant's point that plaintiff could not maintain a suit in equity to enjoin the wholesale attack upon her interests we refer to the following authorities: Stewart v. Caldwell, 54 Mo. 536; Dingle v. Pollock, 49 Mo.App. 480; Bobb v. Bobb, 76 Mo. 419; Baldwin v. Davidson, 139 Mo. 118; McGlathlin v. Hemery, 44 Mo. 355. (7) "By filing an answer and going to trial defendants waived any objection as to defect of parties." Stewart v. Gibson, 71 Mo.App. 232; Am. Smelter Co. v. Fire Assur. Co., 71 Mo.App. 661; Pike v. Martindale, 91 Mo. 268; R. S. 1899, sec. 602. (8) Appellant claims plaintiff had an adequate remedy at law. This plaintiff denies. She could not appeal from the judgments of allowances. She was not an heir, devisee, legatee, or creditor of Zimri Dixon's estate, nor was she a person who had an interest in his estate. She was a creditor of L. M. Dixon. Zimri Dixon owed her nothing, nor does his estate. R. S. 1899, sec. 278; R. S. 1899, sec. 214; Jones v. Jones, 47 Mo.App. 237; Cauley v. Truitt, Adm'r, 63 Mo.App. 356; Baldwin v. Davidson, 139 Mo. 118; State ex rel. v. Jones, 53 Mo.App. 207; s. c., 131 Mo. 194.
This proceeding is to set aside certain allowances against the estate of Zimri Dixon in the probate court of Cedar county as having been procured by fraud and to set aside an order for the sale of lands to pay such allowances and to restrain the defendants from taking any steps to subject said lands to the judgment of such allowances. The decree was for the plaintiff. Whereupon the defendants appealed to the Supreme Court, which court transferred the case here on the ground that it had no jurisdiction.
Zimri Dixon died in September, 1895, leaving several children (all of age) and a widow. Four of these children and the widow are all that figure in this controversy. They are America, the widow; Delphia, a daughter, and George, Lincoln and Lewis, three sons--Lewis at the time of the trial being twenty-six years old and the youngest. The estate left consisted of between two and three hundred acres of land. There was no will, and if we except the matters here in controversy, there were no debts. In June, 1896, the year following his death, the widow applied for letters of administration on the estate and they were granted in July. Prior to this, the son, Lewis, got into trouble with this plaintiff, a young woman, and on March 18, 1896, she sued him in the Cedar Circuit Court for breach of promise of marriage for $ 3,000, and recovered judgment for that sum in October following. Thereafter, she caused an execution to issue on such judgment and levied upon said Lewis's one-eighth interest in the lands so left by his father and had the same sold, she becoming the purchaser.
It appears that George, Lincoln and Delphia never left the family home, continuing with their father and mother as members of the family and that Lewis, though at home some, was away at school a part of the time. The record does not disclose clearly what became of the other children, and they do not appear in the controversy. Between taking out letters of administration in July and this plaintiff's judgment against Lewis in October, George, Lincoln and Delphia presented claims to the probate court against the estate for five years' services in labor and work performed for their father, George's account including a sum for building a house on the farm. These claims aggregated a sum more than the value of the estate and, if sustained, will effectually cut out this plaintiff in her effort to make the amount of her judgment against Lewis. The substance of plaintiff's charge is that the claims are spurious and were concocted for the purpose of defeating her judgment.
At the trial there was evidence admitted in behalf of the defendants George, Lincoln and Delphia, tending to prove that they had performed services in doing farm work for their father and that George had built a house on the farm. That Delphia had aided in the housework; and that all of it was done on the promise of the father that they should be paid for it. Each of them and their mother denied any collusion or fraud. And the probate judge before whom their claims were allowed disclaimed any knowledge of fraud or collusion, and there is nothing in the case to show that he had. On the other hand, there are strong circumstances appearing in the case sufficient to excite grave suspicion as to the claimants, and to these is added some direct evidence bearing on the controversy sufficient, it seems, to lead the trial judge to conclude, after mature deliberation, that the claims were not honest ones and that they had been allowed by collusion between the parties.
While in a case of this character, we may determine it for ourselves,...
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