Edmonds v. Scharff
| Decision Date | 05 July 1919 |
| Citation | 213 S.W. 823,279 Mo. 78 |
| Parties | W. E. EDMONDS, Appellant, v. ADOLPH SCHARFF et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Iron Circuit Court. -- Hon. E. M. Dearing, Judge.
Affirmed in part; reversed and remanded in part.
J. L Fort for plaintiff.
(1) The deed should have been reformed, as sought in the first count. 7 Cyc. 255, 257; 34 Cyc. 904, 923; 24 Cyc. 57; Campbell v. Johnson, 44 Mo. 249; Jennings v. Brizeadine, 44 Mo. 335; Ford v. Unity Church, 120 Mo. 507; Bryant v. Gammon, 150 Mo. 655; Stroberry v Walsh, 203 S.W. 291; Swearengin v. Swearengin, 202 S.W. 556; Wilson v. Fisher, 172 Mo. 22. (2) The consideration clause in the deed from Edwards to his wife was open to explanation. Edwards v. Latimer, 183 Mo 626. (3) The deed from Edwards to his wife was valid against the world and conveyed the equitable title to the wife. Clark v. Thias, 173 Mo. 644; Daniels v. Goeke, 191 Mo.App. 1; Brewer v. Daniel, 198 Mo. 320; O'Day v. Meadows, 194 Mo. 604; Tennison v. Tennison, 46 Mo. 77; Hammons v. Renfrow, 84 Mo. 342. (4) Mrs. Edwards had a dower interest in this land and that interest has passed to plaintiff. R. S. 1889, secs. 2934, 4514; Phillip v. Presson, 172 Mo. 24; Graham v. Stafford, 171 Mo. 697; Smith v. Stephens, 164 Mo. 422-3; Null v. Howell, 111 Mo. 277; Beard v. Hall, 95 Mo. 16; Robinson v. Wear, 94 Mo. 687; Sherwood v. Baker, 105 Mo. 478. (5) The judgment in ejectment in the case of Scharff v. McGaugh, constitutes no bar to the granting of any relief to plaintiff, by him sought in this suit. Swearengin v. Swearengin, 202 S.W. 556. (6) The plaintiff has whatever title to the premises in suit that defendants acquired by and through the sheriff's sale. The record in this case shows that the court had jurisdiction of the subject-matter and the parties in the case in which the judgment for costs was rendered, and the law is that the judgment so rendered was a lien upon the real estate of the party against whom it was rendered, situated in the county in which the judgment was rendered. Right action and not wrong action is to be presumed in cases like this. The judgment for costs was not void on its face and its validity has never been assailed in a direct proceeding, but has been assailed in this collateral proceeding. That judgments, regular upon their face and rendered by a court having jurisdiction of the subject-matter and the parties, cannot be assailed in a collateral proceeding is elementary learning. R. S. 1909, secs. 2284, 2290; Beedle v. Mead, 81 Mo. 304; Cranor v. School Dist., 151 Mo. 127.
Wilson Cramer for defendants.
(1) Plaintiff seeks to recover on the same title relied upon by defendant in the case of Scharff v. McGaugh, 205 Mo. 344. All questions relating thereto were considered by this court in that case and its decision is res judicata. (2) The sheriff's deed under exetion to plaintiff, dated September 12, 1904, and purporting to convey the interests of defendants, is void and conveys no title. (a) Because the judgment upon which the execution was issued, was rendered by J. L. Fort, then circuit judge, who had been counsel for the defendant in the cause and was disqualified from acting as judge. R. S. 1899, sec. 819. (b) Because at the time of the rendition of this judgment by Judge Fort the cause was still under advisement by Special Judge Bedford, who had tried the same and retained jurisdiction, and Judge Fort had no authority to make any order in the case. (3) In the fourth count plaintiff seeks to recover the dower interest of M. A. Edwards, widow of George L. Edwards, who died on the 22nd day of July, 1898. The present suit was brought February 5, 1910, as shown by the file marks on the petition and is barred. R. S. 1899, sec. 2979; R. S. 1909, sec. 371; Harrison v. McReynolds, 183 Mo. 533; Investment Co. v. Curry, 264 Mo. 483.
WHITE, C. Railey and Mozley, CC., not sitting.
The petition in this suit was filed in 1910 in four counts, each of which seeks to affect the title to lots 10, 11 and 12 of Block 16 in the town of Bernie, in Stoddard County, Missouri. There was a judgment for defendants on counts 1, 2 and 3, and a judgment for plaintiff on count 4. The parties on both sides appealed.
It is admitted that George L. Edwards was the common source of title; he died in 1895. On December 26, 1892, he conveyed the property to his wife, M. A. Edwards, by direct deed. In the description in that deed lots 10, 11 and 12 were mentioned, but the block number was omitted. The consideration was recited to be one dollar. After her husband's death, in 1897, Mrs. M. A. Edwards conveyed the property to James L. Fort and James B. Buck and her title then passed by mesne conveyances to William McGaugh, who acquired it August 15, 1899. William McGaugh passed the title on by mesne conveyances to the plaintiff, W. E. Edmonds, who acquired a one-half interest in 1900 and the remaining half interest in 1902.
In December, 1892, at the time that G. L. Edwards conveyed the property to his wife, he was indebted to the firm of L. & A. Scharff in the sum of $ 162.40, for whiskey which he bought September 30, 1892. Suit was brought on this claim before a justice of the peace and judgment for $ 162.40 obtained January 19, 1893. A transcript of the judgment and proceeding before the justice was filed in the office of the clerk of the circuit court; execution issued, by virtue of which the Sheriff of Stoddard County levied upon and sold the property by correct description, and the same was purchased by L. & A. Scharff for the sum of $ 120, and conveyance made by the sheriff to them. The Scharffs then brought suit in ejectment against William McGaugh while he was in possession of the land; the petition was in the usual form and the answer was a general denial. Judgment of the circuit court was rendered in favor of the plaintiffs in that case for possession of the premises. The case was appealed to this court, where the judgment was affirmed. The Scharffs were put in possession in 1907, under a writ of restitution in that case.
Prior to the filing of the suit in ejectment and before the death of G. L. Edwards, L. & A. Scharff had brought suit against Lee Edwards (meaning G. L. Edwards) and M. A. Edwards, the purpose of which was to obtain equitable relief; that is, to set aside the conveyance made by G. L. Edwards to his wife. The suit was subsequently dismissed and costs assessed against the plaintiffs, L. & A. Scharff. Execution was issued upon that judgment for costs, the property sold by the sheriff and conveyance made to the plaintiff here, W. E. Edmonds.
The petition in this case is in four counts, as stated: The first count sets out the conveyance by G. L. Edwards to his wife with mistake in the description, the subsequent conveyance whereby the plaintiff acquired her title, and prays to have the misdescription corrected and for possession of the premises, against the Scharffs, with an accounting for the rents and profits during the time of their incumbency.
The second count of the petition sets up the title under which the plaintiff claims, the sheriff's deed under which L. & A. Scharff acquired their interest and the facts that they were in possession, and prayed for a cancellation of the sheriff's deed, as a cloud upon the title, and an accounting of the rents and profits.
The third count of the petition states a cause of action to determine the title under the statute, Section 2535.
The fourth count alleges the title of G. L. Edwards, his death, the right to dower of his widow in the property and her conveyance of the same to the plaintiff.
The answer of the defendant alleges the title by which they acquired their claim in the property under the sheriff's deed in September, 1893, and sets up the Statute of Limitations in bar of the action for dower as alleged in the fourth count of the petition.
The Circuit Court held the sheriff's deed to the Scharffs was good, denied plaintiff's right to relief as prayed in the first, second and third counts, but adjudged that he had a right to the dower of the widow, M. A. Edwards, in the property. Other facts pertinent to the different issues raised in the case will be considered as the questions which they affect arise.
I. The plaintiff's claim of title as asserted in the first and second counts of his petition is based on an assertion of the validity of the deed from G. L. Edwards, to his wife, made in 1892, and his right to have that deed reformed so as correctly to describe the land. The plaintiff proceeds in equity and the question is whether the deed under which he claims gave him such a right as he might enforce against the defendants in a court of equity.
Many of the questions affecting the regularity of the transaction whereby the defendants acquired their title, and some of the questions affecting the validity of the deed of Edwards to his wife, were settled in this court in the case of Scharff v. McGaugh, 205 Mo. 344, 103 S.W. 550. It was held by this court in that case that the judgment, and all other proceedings, by which the Scharffs acquired title, were regular. It is true, the judgment being in ejectment is not res adjudicata here as to any issue determined there, but the doctrine announced in that case upon the facts presented is an authoritative statement of the law as applied to such facts.
The court there held in the first place that the deed from G. L Edwards to his wife showed on its face that it was a voluntary conveyance; it recites a consideration of one dollar; that a voluntary conveyance by a husband to his wife is void as to existing creditors. The debt to the Scharffs had been incurred and was in existence at the time the conveyance was made. It was also held that...
To continue reading
Request your trial