Elliott v. McCormick.

• Decision Date: 30 July 1929
• Docket Number: No. 27209.,27209.
• Citation: 19 S.W.2d 654
• Parties: HATTIE ELLIOTT, Appellant, v. W.A. McCORMICK ET AL.
• Court: Missouri Supreme Court

19 S.W.2d 654

HATTIE ELLIOTT, Appellant, v. W.A. McCORMICK ET AL.

No. 27209.

Supreme Court of Missouri, Division One.

July 30, 1929.

Appeal from Circuit Court of St. Louis County. — Hon. G.A. Wurdeman, Judge.

AFFIRMED.

Heideman & Heideman for appellant.

(1) Plaintiff was a bona-fide resident of the State of Missouri at the time defendant William F. Trautner filed suit against her and her real property attached on a writ of attachment issued by the Circuit Court of St. Louis County, on November 29, 1922, on an affidavit made by said Trautner alleging that plaintiff herein was not a resident of said State of Missouri, on which said affidavit he attempted to procure service on her by publication and procured a judgment against her on ex parte hearing on January 30, 1923. 10 Am. & Eng. Ency. Law (2 Ed.) 8, 14, 15, 18, 20, 28; Chariton County v. Moberly, 59 Mo. 238; Morton v. Barrett, 204 S.W. 411; Green v. Beckwith, 38 Mo. 384; In re Lankford's Estate, 197 S.W. 147. (2) The price for which plaintiff's real property was sold by the sheriff is so grossly inadequate as to shock the conscience, and is a badge of fraud. Mangold v. Bacon, 229 Mo. 459, 237 Mo. 496-520; State ex rel. v. Davidson, 286 S.W. 357; Van Graafieland v. Wright, 286 Mo. 414; State ex rel. v. Innes, 137 Mo. App. 424; Ginnan v. Donnell, 201 Mo. 173. (3) Defendants Charles W. Baker, Eva Baker, W.A. McCormick and Katherine McCormick are not bona-fide purchasers of said real property for a valuable consideration without notice. Marshall v. Hill, 246 Mo. 30; Sensendoffer v. Kemp, 83 Mo. 588; Speck v. Riggin, 40 Mo. 405; Simms v. Thompson, 236 S.W. 882; Halsa v. Halsa, 8 Mo. 307; Kearney v. Vaughn, 50 Mo. 288; Conn. Mut. L. Ins. Co. v. Smith, 117 Mo. 294; Black v. Lynn, 252 S.W. 437; McDaniel v. Sprick, 249 S.W. 611; Young v. Schofield, 132 Mo. 659; State ex rel. v. Wessels, 237 Mo. 593; Holdsworth v. Shannan, 113 Mo. 508; 23 Am. & Eng. Ency. Law (2 Ed.) 495. (4) Although defendant William F. Trautner may have had a good cause of action in the suit he filed against her in the Circuit Court of St. Louis County on November 29, 1922, nevertheless if the judgment for Trautner in that case was procured by practicing fraud on said court in inducing the court to illegally assume jurisdiction of the defendant in that case (plaintiff herein) and in preventing her from making a defense in said case, then the entire proceedings in that case, including the sheriff's sale and deed to defendant Alice Trautner, must be quashed, set aside and for naught held. Kennish v. Safford & Ray, 193 Mo. App. 369; Howard v. Scott, 225 Mo. 711; Dorrance v. Dorrance, 242 Mo. 625; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 292.

Thompson & Thompson, Guy A. Thompson and Frank A. Thompson for respondent Frank H. Brown.

(1) There was not the slightest evidence that the jurisdiction in the attachment suit was obtained and procured through fraud. In the absence of positive proof of this fraud, the whole case of plaintiff falls, and even if there were conclusive proof of such fraud, this defendant Brown and McCormick and the innocent holders of the deeds of trust could not be prejudiced. (2) There was absolutely no proof of any collusion, conspiracy or fraud on the part of this defendant Brown, or the McCormicks, or the innocent holders of the deeds of trust. (3) The fact that this vacant property was sold at an execution sale for $63 is not evidence of fraud in the absence of any other circumstance whatsoever showing fraud. Knoop v. Kelsey, 121 Mo. 642; Martin v. Castle, 193 Mo. 183; Gordon v. O'Neill, 96 Mo. 350; Walters v. Hermann, 99 Mo. 529. (4) Even if there were fraud surrounding the execution sale, defendant Brown and the other defendants McCormick and the innocent holders of the deeds of trust were not parties to it, and surely cannot be said to have any notice of it. Walters v. Hermann, 99 Mo. 529. (5) It is admitted that all the proceedings regarding the attachment case were regular and in usual form, and the only claim about that proceeding is that the jurisdiction of the court was obtained through fraud, that is, by not only a false but also a fraudulent affidavit and testimony relative to the residence of plaintiff. (6) The overwhelming weight of testimony showed that the plaintiff had left Missouri to live in California, and that during that time she had no home whatsoever in this State.

SEDDON, C.

Action in equity, commenced by appellant (plaintiff below) on September 11, 1924, to set aside a judgment by default rendered against her on January 30, 1923, in favor of respondent, William F. Trautner in the Circuit Court of St. Louis County, in a certain suit, commenced by attachment on November 29, 1922, resulting in a sale of Lot 31, in block 4, of Kenwood, a platted subdivision in St. Louis County, on March 5, 1923, under an execution issued to enforce said judgment and levied upon the described realty, and to set aside two deeds and two mortgage deeds of trust, all dated June 2, 1923, conveying title to said realty.

Briefly stated, the petition charges that the said judgment rendered against appellant on January 30, 1923 was procured by fraud, committed against appellant, and against the Circuit Court of St. Louis County, in that said William F. Trautner, the plaintiff in the action in which such judgment was rendered, made a false and fraudulent affidavit to the effect that said William F. Trautner has reason to believe, and does believe that the appellant herein was not a resident of the State of Missouri at the time of the commencement of such action and that by reason of such false and fraudulent affidavit, the Circuit Court of St. Louis County was induced to assume jurisdiction of said action and to make an order therein that notice of the commencement of such action be given to the appellant herein by publication, resulting in a judgment being entered by default against the appellant herein, the issuance and levy of an execution under said judgment against the described realty, and the sale of said realty on March 5, 1923, under said writ of execution, for a grossly inadequate price and consideration, to Alice Trautner the wife of said William F. Trautner. The petition further avers that the respondents, Alice Trautner and William F. Trautner, by deed of conveyance dated June 2, 1923 purported to convey the title to said described realty to respondents. Charles W. Baker and Eva W. Baker, husband and wife, and that said Charles W. Baker and Eva W. Baker, by deed of conveyance dated June 2, 1923, purported to convey the title to said realty to respondents, W A. McCormick and Katherine M. McCormick, husband and wife, who, on June 2, 1923, purported to execute two mortgage deeds of trust upon said realty, conveying title thereto to respondent, Frank H. Brown, as trustee for said Charles W. Baker, to secure the payment of certain promissory notes, aggregating $1150, therein described; and that such instruments and deeds of conveyance were executed, made, and placed of record, in pursuance of a common plan, purpose, intent and design, entered into, formed and existing, by and between the several respondents, to deprive the appellant of her title to said real estate and that such instruments of conveyance are a fraud upon plaintiff's rights and a cloud upon her title to said real estate.

The respondents William A. McCormick and Katherine McCormick filed a joint answer, averring that they purchased said real estate from the respondents Baker, for a valuable consideration, without knowledge of the falsity of the aforesaid affidavit of William Trautner (if such affidavit were in fact false and untrue), and that they are innocent of any fraud in the purchase of such real estate. The respondents Charles W. Baker and Eva W. Baker filed a joint answer, averring that they purchased said real property from respondents Alice Trautner and William F. Trautner, for a valuable consideration, and that they sold and conveyed said real property to respondents W.A. McCormick and Katherine McCormick, for a valuable consideration, receiving, as a part of the purchase price of said real estate, the promissory notes and the two deeds of trust aforesaid; that they were innocent purchasers, for value and in good faith, of said real property, and without any fraudulent purpose, intent or design against the appellant, and had no knowledge of any fraud or irregularities in the transaction. The answers of respondents Alice Trautner, William F. Trautner and Frank H. Brown are conventional general denials of the averments of the petition. The appellant filed a conventional reply to the joint answers of respondents McCormick and Baker.

The trial court entered a decree and judgment, finding the issues for the plaintiff and ordering that the proceedings in the attachment suit aforesaid, including the judgment and writ of execution therein, and the several instruments and deeds of conveyance aforesaid, be set aside and for naught held. Timely motions for a new trial were filed by the defendants Brown, Baker and Trautner, upon consideration of which motions the trial court granted said defendants a new trial of the action, and the trial court, of its own motion, granted the defendants McCormick a new trial, and ordered the cause to be reinstated upon the docket of said court, from which order granting a new trial the plaintiff was allowed an appeal to this court.

The evidence herein tends to show that, on November 29, 1922, the respondent William F. Trautner commenced a suit, by attachment, against the appellant, Hattie Elliott, in the Circuit Court of St. Louis County, seeking to recover the sum of $166, claimed to be due and owing to Trautner from Hattie Elliott as a real estate commission for services rendered by Trautner in the sale of two pieces of real property, formerly owned by appellant and located in the city of St. Louis. Concurrently with the commencement of said attachment...