Gallagher v. Chilton

• Decision Date: 02 February 1917
• Docket Number: No. 17677.,17677.
• Citation: 192 S.W. 409
• Parties: GALLAGHER v. CHILTON et al.
• Court: Missouri Supreme Court

192 S.W. 409

GALLAGHER v. CHILTON et al.

No. 17677.

Supreme Court of Missouri, Division No. 2.

February 2, 1917.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Suit by Frank C. Gallagher against J. William Chilton and another. From a judgment for plaintiff, defendants appeal. Judgment reversed.

Defendants have appealed from a decree entered in the circuit court of Shannon county quieting the title in plaintiff to the east one-half of the northeast one-fourth and the northeast one-fourth of the southeast one-fourth of section 28, township 29, range 6 west, in Shannon county, Mo. The petition was in two counts. The first count was in ordinary form under the statute to quiet title. The second count sought, on the ground of fraud, to cancel certain decrees, and deeds which had been entered or made in favor of defendants' title.

In the second count it is stated that on November 21, 1907, Mary McIntyre, James McIntyre, Bridget Gammon, Kate McIntyre, and Nellie McIntyre, as plaintiffs, instituted a suit in the Shannon county circuit court against Harry S. Truman, Mary E. Gallagher, Frank C. Gallagher, and George E. Schaeffer to quiet the title to said land, and that a decree was entered in favor of the plaintiffs at the March term, 1908, of said court. The petition asked to have said decree set aside, alleging that:

Said decree "was fraudulent and void for the reason that said plaintiffs did not at the institution of the suit or at the rendition of the decree own or have any interest either directly or indirectly in or to the said lands described in this petition, neither did they ever have any interest therein, all of which was well known to them, and all of which was well known to their attorney who instituted and prosecuted the suit for them at the time, and all of which was fully shown by the deed records of Shannon county, Mo."

It is then alleged that in July, 1908, all of the plaintiffs in the above-mentioned suit executed a deed to one Ed. J. Shuck (one of the attorneys of record in said above-mentioned suit), conveying an undivided one-fourth interest in said land. Plaintiff seeks to have this deed canceled because:

"Said conveyance was void and conveyed no title to said Ed. J. Shuck for the reason that the grantors in said deed never at any time had any title thereto and had never acquired any by reason of their suit in this court, and by reason thereof could convey no title to the said Ed. J. Shuck."

It was further alleged that on January 25, 1909, said Ed. J. Shuck instituted suit in the circuit court of Shannon county against Frank C. Gallagher and Mary McIntyre asking to have said lands partitioned, the plaintiff claiming a one-fourth interest therein; that the defendants were served by order of publication, but at that time both of said defendants were residents of the state of Missouri, all of which was known to the plaintiff at the time the suit was instituted; that a decree in partition and an order of sale was made by the court, and on September 15, 1909, the land was sold at sheriff's sale to one Anna Davis for the sum of $30.09, that being the cost of the partition suit; that the deed was executed by the sheriff to said Anna Davis on September 20, 1909. Plaintiff asked to have said decree set aside and the sheriff's deed canceled, alleging:

That the same "was void and conveyed no title for the reason that Ed. J. Shuck had never acquired any title to said property and had no title or interest therein at the time of the institution of his suit, neither did Mary McIntyre, the defendant, have any title thereto, but that the whole title was vested in this plaintiff; that said sale was also void for the reason of inadequacy of the price the land brought in said partition sale, said land being worth at the time of the sale at least $750. Plaintiff had no knowledge of such proceedings until long after they were had."

It is further alleged that said Anna Davis, on the 11th day of August, 1910, executed to J. William Chilton (codefendant herein) a quitclaim deed for the purported consideration of $500 by which she pretended to convey an undivided one-half interest in said land. Plaintiff seeks to have this deed set aside, alleging:

That said "deed was absolutely void, and that the deed conveyed no title for the reason that plaintiff in the partition suit, Ed. J. Shuck, did not and never had had any title to said real estate."

It was further alleged that J. William Chilton and Anna Davis (codefendants herein) instituted a suit in the circuit court of Shannon county returnable to the September term, 1910, against Edward Winsor, Edward Winsor, trustee, Martha Freeman, Harry S. Truman, Mary E. Gallagher, Frank C. Gallagher (plaintiff herein), Kate McIntyre, Nellie McIntyre, the unknown heirs of James McIntyre, and unknown heirs of Anthony McNamara, deceased, for the purpose of quieting title to the said land; that said petition alleged that all of said defendants were nonresidents of the state, and were served by publication when in fact and truth they were all residents of the state of Missouri, all of which was known to said plaintiffs therein (defendants herein); that on September 16, 1910, a decree was entered by said court in said cause divesting the title out of said defendants and vesting the same in said plaintiffs (defendants herein). Plaintiff asks that this decree be set aside, alleging:

"That no title passes by said decree for the reason that the whole proceeding and foundation of their title was inspired and created by fraud, and that no title ever passed from this plaintiff by reason of any of the proceedings above set out."

It is alleged that plaintiff and his grantors have paid all taxes due on said land since 1870 up until the time of the bringing of this suit.

The answer admits that defendants claim to own the land, and denies that plaintiff has an interest therein. The answer then sets up the proceeding resulting in the decree of September 16, 1910, whereby it was decreed that this plaintiff (defendant therein) had no title to said land, but that the title to said land was in these defendants (plaintiffs therein), and that said decree has never been annulled or appealed from, but is now in full force and effect, and that by reason thereof the present plaintiff is now estopped and barred from maintaining this action.

The court entered a decree canceling each of said decrees and deeds mentioned in plaintiff's petition and adjudged the title to be in the plaintiff Frank C. Gallagher.

The evidence tended to establish the following facts:

Anthony McNamara was admitted to be the common source of title. Anthony McNamara died in 1861, leaving two sisters, Sabina and Katherine McNamara. Sabina McNamara died without issue in 1895. Katherine McNamara died leaving as her sole and only heir a daughter Mary, who intermarried with Peter McIntyre. Mary died in 1882 and left surviving her, as her sole heirs, five children, as follows: James, Bridget, Mary Ann, Katherine, or Kate, and Ellen, or Nellie, McIntyre. (These are the parties who appear as plaintiffs in the suit to quiet title to said land, resulting in the decree of March, 1908.)

Plaintiff introduced in evidence a purported abstract of title showing a quitclaim deed to this land, dated June 30, 1870, executed by Peter McIntyre and wife, Mary, conveying said land to Sabina McNamara. This abstract was identified by J. F. Buchanan, the maker thereof, whose deposition was read in evidence over defendant's objection. Said Buchanan testified that he was engaged in the abstract business at Independence, Mo., and that the abstract was made by him from the original deeds which he had in his possession at the time he made the abstract. The witness was not in possession of the above-mentioned deed at the time his deposition was made, and did not know what had become of it, that he had made search, but could not find the same, and that he had turned this deed and others over to plaintiff Frank C. Gallagher about September, 1911. This abstract was made by the witness May 21, 1896. The witness testified that he had never been in Shannon county. Plaintiff then offered in evidence deeds purporting to convey this land as follows: Deed from Sabina McNamara to Edward Winsor, dated November 19, 1877, recorded February 3, 1882; deed from Edward Winsor and wife to Chas. M. Clark, dated June 28, 1887, recorded February 1, 1888; deed from Chas. M. Clark to Edward Winsor, trustee for P. C. Cowling and M. S. Winsor, dated August 9, 1887, recorded September 28, 1887; deed from Chas. M. Clark to John H. Lee, dated January 27, 1888, recorded February, 1888; a quitclaim deed from Edward Winsor and...