Davidson v. I. M. Davidson Real Estate & Investment Co.

• Decision Date: 23 December 1909
• Citation: 125 S.W. 1143,226 Mo. 1
• Parties: DAVIDSON v. I. M. DAVIDSON REAL ESTATE & INVESTMENT CO. et al.
• Court: Missouri Supreme Court

125 S.W. 1143

226 Mo. 1

DAVIDSON v. I. M. DAVIDSON REAL ESTATE & INVESTMENT CO. et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1909.

Rehearing Denied March 1, 1910.

1. WILLS (§ 698)—CONSTRUCTION—JURISDICTION OF EQUITY.

A circuit court as a chancery court has power to construe wills, and determine whether a testamentary trust is created.

2. JUDGMENT (§ 443)—EQUITABLE RELIEF— GROUNDS.

An interlocutory judgment in proceedings to construe a will and for partition cannot be set aside in a direct attack thereon for fraud, unless it was fraudulent in its concoction; error in the construction of the will not being available in such proceedings.

3. JUDGMENT (§ 461) — SUITS TO VACATE — SUFFICIENCY OF EVIDENCE — FRAUD.

In a direct suit to vacate an interlocutory judgment in partition proceedings on the ground of fraud, evidence held not to show fraud in procuring the judgment so as to justify vacating.

4. JUDGMENT (§ 443)—VACATING—EQUITABLE ACTION—FRAUD.

A judgment may be set aside in an equitable action on the ground of fraud in procuring it.

5. JUDGMENT (§ 443)—VACATING—EQUITABLE ACTION—FRAUD IN PROCURING ORDER.

In proceedings for the partition and sale of land, the giving of a receipt to the commissioner of sale by defendant for the amount he was allowed therein as a lien on the land sold, in order to procure the order of approval, when he did not receive anything from the commissioner, was a fraud upon the court in procuring the order of approval.

6. JUDGMENT (§ 461)—VACATING—PROCEEDINGS—SUFFICIENCY OF EVIDENCE—KNOWLEDGE OF FRAUD.

In a direct suit to set aside a judgment and order of sale in partition proceedings for fraud in procuring the judgment and order, evidence held to show that defendant corporation which purchased the property at the sale had knowledge of fraud perpetrated to procure the order of approval of the sale.

7. JUDGMENT (§ 443)—VACATING—GROUNDS— FRAUD.

The report by a commissioner appointed to sell land in partition proceedings of the receipt of the purchase money and its distribution to the parties entitled, when it had not been received, was a fraud upon the court in the procurement of the order of approval of the sale, so as to justify its vacation in a direct proceeding for that purpose.

8. EVIDENCE (§ 386)—JUDICIAL RECORDS— PAROL EVIDENCE — COLLATERAL PROCEEDINGS.

Parol evidence is not admissible in collateral proceedings to impeach a court record.

9. APPEAL AND ERROR (§ 882)—ESTOPPEL TO ALLEGE ERROR—CHANGING THEORY ON APPEAL.

Where, in proceedings to vacate a judgment and order of sale in partition proceedings for fraud, both parties offered parol evidence without objection on the question whether the judge was present when the sale was made, defendant cannot object on appeal to the incompetency of parol evidence to show that fact.

10. PARTITION (§ 100)—SALE—TIME—IN VACATION — PENDING ADJOURNMENT — "DAY DURING THE TERM."

Rev. St. 1899, § 4407 (Ann. St. 1906, p. 2421), provides that a partition sale shall take place during some day of the term of the court and be governed by the rules for the sale of realty under execution, and section 3197 requires the officer to expose realty for sale under execution on some day during the term of the circuit court. Held, that the words "some day during the term," in section 4407, meant a day when the court was in actual session for transacting business, so that, where the court adjourned from the 9th to the 13th of October, a partition sale could not be made on the 12th.

11. PARTITION (§ 104)—SALE—VALIDITY—VIOLATION OF ORDER OF SALE.

Where the order of sale in partition proceedings required payment by the purchaser in cash of at least one-half of the purchase price, a sale made without any payment was void, in absence of circumstances estopping the owners from objecting to its validity.

12. GUARDIAN AND WARD (§ 38)—SALE OF WARD'S REALTY.

The guardian of minors whose land was sold in partition proceedings under an order requiring half the purchase price to be paid in cash cannot, without the consent of the probate court, receipt for the purchase price when it was not received, in order to procure the approval of the sale, so as to bind the minors thereby; such conduct being a fraud upon them.

13. PARTITION (§ 103)—SALE—VALIDITY—CAPACITY TO PURCHASE—UNORGANIZED CORPORATION.

A purchaser of land on a partition sale must have capacity to receive and hold realty, and a sale to a corporation not then in existence was invalid.

14. GUARDIAN AND WARD (§ 63)—POWERS OF GUARDIAN—INVESTMENT OF WARD'S REALTY.

A guardian and curator of the estate of minors could not without authority from the probate court agree to accept shares in a corporation to be organized for the minors' interest in the estate.

15. GUARDIAN AND WARD (§ 53)—INVESTMENT OF FUNDS—INVESTMENT UNDER ORDER OF COURT—INVESTMENT OF NONEXISTING FUND.

If the guardian of minors had no money belonging to them, an order of the probate court, procured by the curator, authorizing the investment of a sum as belonging to the minors in certain stock, would not bind the minors.

16. APPEAL AND ERROR (§ 301)—MOTION FOR NEW TRIAL—ASSIGNMENTS OF ERROR—NECESSITY.

In an action to set aside a judgment and order of sale in partition proceedings, in which a receiver was appointed for the estate pending the suit, error in appointing the receiver cannot be considered on appeal, where it was not assigned in the motion for new trial.

On Motion to Modify Judgment.

17. APPEAL AND ERROR (§ 843)—SCOPE OF REVIEW—QUESTIONS CONSIDERED.

On appeal in a suit to vacate an interlocutory and final judgment in partition proceedings and the sale thereunder for fraud, where the Supreme Court affirmed the trial court's decision that the interlocutory judgment was not procured by fraud, but vacated the sale for fraud in its conduct and confirmation, error in the interlocutory judgment cannot be considered.

18. APPEAL AND ERROR (§ 1152)—DISPOSITION—MODIFICATION OF ORDER OF SALE.

On appeal from a judgment vacating a judgment and order of sale in partition for fraud, the Supreme Court cannot modify the order of sale upon affirming the judgment, as the court which made the order should itself provide the terms of the order upon renewing it in subsequent proceedings.

19. APPEAL AND ERROR (§ 1144) — AFFIRMANCE —JUDGMENT—DIRECTIONS TO RECEIVER.

Where the Supreme Court affirmed a judgment vacating a sale in partition, and refused to review error in appointing a receiver for the property, it will not give directions to the receiver; he being the officer of the trial court, and not of the Supreme Court.

Appeal from Circuit Court, Mississippi County; Henry C. Riley, Judge.

Action by Laura Carter Davidson against the I. M. Davidson Real Estate & Investment Company and others. From a judgment in part for plaintiff, two of defendants appeal. Affirmed as modified.

On January 3, 1895, Isaac M. Davidson departed this life in Butler county, Mo., leaving an estate, consisting mostly of real estate, valued at something near $200,000. He was a lawyer by profession. He prepared, executed, and left a will, only one clause of which has any significance in this suit. That clause reads: "Secondly: I give and bequeath all the remainder of my estate, both real and personal, or mixed, debts and wages due me, except the law office and fixtures therein contained, to my eldest son, Dr. Ira M. Davidson, and his mother, my beloved wife, for the use hereinafter declared, and request them to hold the same without sale or disposal, for a period of at least fifteen years, and then only to be disposed of by the concurrence of all the heirs. Also to cause the houses, lots and farms, wheresoever they may be, to be kept rented and in good repair, collecting the rents and paying the same over to my said heirs according to their respective rights." Mr. Davidson left surviving him a wife and eight children. By the fifth clause of the will he defines what he means by the terms "my heirs," there naming his wife and children. At his death most of his children were minors and three of them were yet minors when this suit was brought. The plaintiff in this suit is one of the children, and the widow and the other children are made defendants, together with a corporate defendant and two individual defendants. Under the will, the widow, Mary J. Davidson, and a son, Ira M., were made executors.

The purpose of the plaintiff's suit is well described in the prayer of her petition, thus: "Wherefore plaintiff prays the court to cancel, set aside, and for naught hold the decree of partition aforesaid and the order of sale made thereunder, set aside and for naught hold the report of sale made by the special commissioner thereunder, set aside and for naught hold the order of this court ordering said special commissioner to make and execute the deeds aforesaid, and to cancel, set aside, and for naught hold both of the special commissioner's deeds above referred to as constituting a cloud upon the title of plaintiff, and to render judgment against the defendants, determining the title to said real estate, and quieting and confirming plaintiff's title to an undivided one-ninth interest in and to all the above-described real estate and to enjoin the defendants, their officers, attorneys, agents, servants, and employés from selling or disposing of said real estate, or otherwise dissipating or injuring the same, pending the final disposition of this cause; and that the court appoint some suitable person to take charge of said real estate as trustee or receiver, collect the rents and profits thereof, and pay the same over to this plaintiff and the other heirs of Isaac M. Davidson, deceased, as is provided by the terms of said will, and for all other proper relief in the premises plaintiff will ever pray."

The petition in this case charges: That in September, 1901, a certain attorney filed a suit in the circuit court of Butler county asking for a...