Gammon v. McDowell

• Decision Date: 28 September 1927
• Docket Number: 25958
• Citation: 298 S.W. 34,317 Mo. 1336
• Parties: T. M. Gammon v. J. C. McDowell, Executor of Estate of A. Clayton, and Samuel Hayes, Appellants
• Court: Missouri Supreme Court

298 S.W. 34

317 Mo. 1336

T. M. Gammon v. J. C. McDowell, Executor of Estate of A. Clayton, and Samuel Hayes, Appellants

No. 25958

Supreme Court of Missouri

September 28, 1927

Motion for Rehearing Denied September 17, 1927.

Appeal from Greene Circuit Court; Hon. Orin Patterson Judge.

Reversed.

Levi Engle and Herman Pufahl for appellants.

(1) It was error for the trial court to admit in evidence the certified copy of the judgment of the Circuit Court of Dallas County, when the evidence showed that the judgment as offered was not the judgment rendered by the court, but had been altered and changed. (a) The alteration of a judgment renders it void and releases the defendant from it. Freeman on Judgments (4 Ed.) sec. 148, p. 266. An alteration which to any degree varies the legal effect of an instrument to the prejudice of the other, releases the party from it, though no actual fraud is meditated. Law v. Crawford, 67 Mo.App. 150; McMurtry v. Sparks, 71 Mo.App. 126; Girdner v. Gibbons, 91 Mo.App. 419; Powell v Banks, 146 Mo. 620, 643. (b) The smallest change in a written instrument will invalidate it without regard to the intent with which the change is made. Carson v Woods, 177 S.W. 623. (c) If there was a mistake in the record and if the court had power to correct it, the court could not do so except in a direct proceeding for that purpose. Melby v. Nabe, 67 Mo. 546; State ex rel. Klotz v. Ross, 118 Mo. 23, 44; State ex rel. Woobman v. Guinotte, 282 S.W. 70; State ex rel. Washer v. Porterfield, 258 S.W. 724. (2) The trial court erred in admitting evidence on the part of the plaintiff "subject to objection," and then failing to rule or pass on the objection made. Smoot v. Banker's Life Association, 138 Mo.App. 438, 469; Stone v. Fry, 191 Mo.App. 612; Hannon Construction Co. v. Railroad, 247 S.W. 440; Seafield v. Bohne, 169 Mo. 537; Asbury v. Hickland, 181 Mo. 658. (3) The clause in the will which reads: "In recognition of the kindness and care given me by Samuel Hayes, and in the event that he shall remain with me and care for me during my natural life, I give, devise and bequeath to him my real estate" is based upon a valuable consideration for services rendered and to be rendered, and is not a gift, and inasmuch as the testimony showed and the court found that Hayes had rendered the services to Clayton, and had taken care of him up to the time of Clayton's death, this is a specific bequest, and the land so devised could not be sold for the payment of Clayton's general debts, and for that reason the order of sale should not have been made by the circuit court. A contract to make provisions by will for a particular person is valid if founded on a just consideration. An action will lie for the breach thereof or specific performance may be decreed. 1 Woerner on Administration (Ed. 1889) p. 58, sec. 148A; Wright v. Tinsley, 30 Mo. 389; Gumpton v. Gumpton, 47 Mo. 46; Sharkey v. McDermott, 91 Mo. 647; Sutton v. Hayden, 62 Mo. 101; Berg v. Moreau, 199 Mo. 416, 9 L. R. A. (N. S.) 157; Koch v. Hebel, 32 Mo.App. 110; Fuchs v. Fuchs, 48 Mo.App. 23; Clark v. Cordry, 69 Mo.App. 6. (4) The land sought to be sold having been the homestead of A. Clayton, during his lifetime, and he being a "housekeeper" and his heirs being his two children, could not be sold for the payment of the general debts of Clayton. Sec. 5857, R. S. 1919; Gill on Mo. Real Property (2 Ed.) sec. 1583; Silvers on Missouri Titles, sec. 89, p. 145, and sec. 144, p. 368; Broils v. Cox, 153 Mo. 242; In re Estate of Powell, 157 Mo. 151; Balance v. Gordon, 247 Mo. 119; Armour v. Lewis, 252 Mo. 568; Lewis v. Barns, 272 Mo. 377, 199 S.W. 212; Dennis v. Gorman, 289 Mo. 1; Fields v. Jacoby, 181 S.W. 68; Ehlers v. Potter, 219 S.W. 915.

John S. Haymes for respondent.

(1) The contention that certain evidence was admitted by the trial court, "subject to objection," is not available to appellants. (a) The trial was before the court. Roofing Co. v. Trust Co., 146 Mo.App. 56; Wooling Co. v. Tailoring Co., 267 S.W. 972; Sanzenbacher v. Santhuff, 220 Mo. 282. (b) The court was never, after receiving the evidence subject to objection, asked to rule on the objection. That was necessary. Disinfecting Co. v. Bates Co., 273 Mo. 304; State ex rel. v. Wright, 270 Mo. 389; Craig v. Bank of Joplin, 189 Mo.App. 394. (2) The evidence objected to was admissible both to explain the judgment, whose meaning has been questioned, and as bearing upon any alteration thereof. Burnside v. Wand, 108 Mo.App. 546; Peltz v. Bolinger, 180 Mo. 259; 1 Freeman on Judgments (5 Ed.) 134, sec. 77, and 143, sec. 82. (3) The original judgment in the former case of Gammon v. McDowell, and attacked in this, was sustained (affirmed) by the Springfield Court of Appeals, 208 Mo.App. 616, and even if irregular, is not subject to collateral attack. Rosenheim v. Hartsock, 90 Mo. 365; Talbot v. Roe, 171 Mo. 421; Warren v. Manwarring, 173 Mo. 34. (4) Where verdict of jury was not correctly copied in the judgment. Holmes v. Braidwood, 82 Mo. 618. Where the court did not find the issues for either party, but rendered judgment for plaintiff. Pickering v. Templeton, 2 Mo.App. 430; Sec. 1550, R. S. 1919. (5) That some change had been made in the original judgment, at some time, the evidence of both plaintiff and defendant tended to show; but by testimony offered by plaintiff, it was shown that he had no part in any change, or any knowledge of it until long after his judgment had been classified and he had filed the petition now before the court. If another without plaintiff's knowledge made the change, it was an act of spoiliation, which in no way affects the rights of plaintiff. Medlin v. Platt County, 8 Mo. 235; State v. McGonigle, 101 Mo. 366; Powell v. Banks, 146 Mo. 643. (6) But the question whether appellant had changed the record was one of fact upon which testimony was heard, and the trial court found the issue for plaintiff, and there being evidence to support it, that finding is conclusive. Trust Co. v. McMillan, 188 Mo. 567. (7) The evidence did not warrant a finding that Clayton had agreed to convey or will the land to Hayes. The evidence of contracts for the conveyance of land, must be clear and certain. Rosenwald v. Middlebrook, 188 Mo. 58; Goodin v. Goodin, 172 Mo. 40; Russell v. Sharp, 192 Mo. 270; Forrester v. Sullivan, 231 Mo. 345. (8) Heirs and legatees hold property inherited or devised subject to the payment of the debts of the decedent. Comstock v. Keating, 115 Mo.App. 379; Rogers v. Johnson, 125 Mo. 216; Higbee v. Bank, 244 Mo. 424. (9) The rule that land is subject to the payment of the decedent's debts is not changed, in this case by the meaning of the homestead exemption laws, except where the homestead claimant is, or was, the head of a family, and Mr. Clayton was neither. R. S. 1919, sec. 5857; Ridenour v. Monroe, 142 Mo. 170; Murdock v. Dalby, 13 Mo.App. 47; Elliot v. Thomas, 161 Mo.App. 448; January v. Marler, 274 Mo. 543; Bushnell v. Loomis, 234 Mo. 236; Balance v. Gordon, 247 Mo. 124; Regan v. Ensley, 283 Mo. 303.

OPINION

Walker, J.

This suit arises out of a proceeding instituted by the plaintiff against the executor of the estate of A. Clayton, deceased, to secure an order from the probate court authorizing the sale of certain land belonging to the deceased to satisfy a debt owing by the latter in his lifetime to the plaintiff. This account, after an allowance by the probate court, had been reduced to a judgment in the circuit court and upon appeal had been affirmed by the Springfield Court of Appeals. [208 Mo.App. 616, 235 S.W. 461.] The probate judge upon the filing of the application for the order at bar disqualified himself on the ground of kinship to the plaintiff and certified the case to the Circuit Court of Dallas County. Upon an application for a change of venue by the defendants the case was transferred to the Circuit Court of Greene County for trial. A trial was there had before the judge of that court, and a judgment was rendered finding the issues in favor of the plaintiff and ordering the executor to appraise and sell the real estate of the deceased, describing the same, or so much thereof as may be necessary to pay the debts of the deceased, giving notice of such sale as required by law. Upon the rendition of this judgment the executor of the estate of said Clayton, and Samuel Hayes, to whom the land had been devised by the will of the deceased, perfected an appeal to this court.

Upon the trial the plaintiff, to sustain the issues on his part, offered in evidence a copy of the judgment of the Circuit Court of Dallas County, in which a judgment in favor of the plaintiff had been rendered on his account against the estate of the deceased. Objections were made to the admission in evidence of this judgment on the ground that, as offered, it was not a true copy of the judgment as originally rendered, but that the same had been changed, as was evident from the record from which the plaintiff's copy of same had been made, and was thereby rendered void. Omitting the caption and the finding as to costs the following is a copy of the judgment offered in evidence:

"Now at this day this cause coming on to be heard, and both parties appearing in person and by attorney, both parties announcing ready for trial and a jury being waived, the cause is submitted to the court for trial, and the court after hearing the evidence produced by both parties, and hearing the argument offered by attorneys for plaintiff and defendant, and after due consideration doth find the issues for the plaintiff.

"It is therefore ordered and adjudged by the court that the plaintiff have and recover of the goods, chattels and lands and tenements of the defendant the sum of $ 304."

The specific ground of...