Halstead v. Mustion
| Citation | 66 S.W. 258,166 Mo. 488 |
| Parties | HALSTEAD, Appellant, v. MUSTION |
| Decision Date | 17 January 1902 |
| Court | United States State Supreme Court of Missouri |
Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.
Reversed and remanded.
James Orchard for appellant.
(1) In the absence of evidence or pleading that property in the name of a married woman, acquired during coverture, has been paid for by her separate means, the presumption of law is that it was paid for with those of the husband, and in such case it is not within the protection of the statute securing to the wife the money arising from the sale thereof or of her separate means. Sloan v. Torry, 78 Mo. 623; Patton v. Bragg, 113 Mo. 600; Hoffman v Nolte, 127 Mo. 134; McFerran v. Kinney, 22 Mo.App. 650. (2) Where wife of insolvent debtor buys land and has the deed executed to herself, but pays for it with her husband's means, this constitutes a fraud against creditors and the property will be declared the property of the husband. Miller v. Leeper, 120 Mo. 466; Garrett v. Wagner, 125 Mo. 450. (3) In order for a wife of an insolvent debtor to claim lands as her separate estate when sued by a creditor to subject the land to the payment of the husband's debts, she must set up in her answer and prove that the land was bought with her separate means. A general denial is not sufficient to admit of proof to show that the property was purchased by her separate means. Nicholson v. Flynn, 24 Mo.App. 577. (4) In a suit to divest a wife of title to land conveyed to her by or through her husband, or claimed to have been bought by her during coverture, it is not necessary to allege or prove fraud in fact on her part. Jordan v. Buschmeyer, 97 Mo. 94. (5) In a suit by a creditor or one who purchased land at execution sale of an insolvent debtor, to subject lands deeded to wife during coverture to the payment of the husband's debts, it devolves on the wife setting up claim that she purchased with her separate means to prove and rebut the presumption that the land was purchased with her husband's money. Hoffman v. Nolte, 127 Mo. 135; Patton v. Bragg, 113 Mo. 601.
H. D Green and A. H. Livingston for respondent.
(1) We have no contention to make with attorney for appellant on the proposition that a judgment not void on its face can not be attacked in a collateral proceeding. Neither do we contend that where the judgment proper recites that service has been had, and there is nothing in the record to the contrary, such a recital of service is conclusive. But we do contend that in the case at bar the recital of the judgment as to service is not conclusive, but that the return of the sheriff on the original summons is as much a part of the record as the judgment. And where the return shows that no service was had upon the defendant and no appearance made, as in this case the recitals of the judgment are overturned and the judgment is absolutely void for want of service. Where it appears from the entire record that the court had no jurisdiction over the person, or subject-matter, the judgment is void and will be so regarded in a collateral proceeding. Howard v. Thornton, 50 Mo. 291; Hope v. Blair, 105 Mo. 85. The judgment may be overthrown by other portions of the record of equal dignity and importing the same verity, which demonstrates that the recitals in the order or judgment are not true. Hutchinson v. Shelley, 133 Mo. 400. Although the record contains the jurisdictional recital that "defendants have been duly served with process," it is competent to overthrow such recital by showing by other parts of the record of equal dignity and importing equal verity, that such recital is untrue. Cloud v. Pierce City, 86 Mo. 359; Williams v. Monroe, 125 Mo. 574; State v. Wear, 145 Mo. 162. And the return of the sheriff is a part of the record itself, and may, when radically defective, be used to rebut the presumption arising from recitals of service contained in other portions of the record. Cloud v. Pierce City, supra; Adams v. Cowles, 95 Mo. 501. (2) The amendment of the sheriff's return, permitted in this court, can not affect the judgment below. We concede that amendments may be made in this court for the purpose of sustaining the judgment of the lower court, but in no event, nor in any court, will they be permitted to overturn a judgment. Section 660, Revised Statutes 1899, is the only statute or authority, so far as we know, for permitting amendments after judgment. This statute permits such amendments only when in affirmance of the judgment, and not against the judgment. Stewart v. Stringer, 45 Mo. 113.
This is a suit in equity to have the defendant, Jane A. Mustion, declared a trustee for her husband, W. D. Mustion, as to certain lands in Howell county in this State, alleged to have been purchased by the husband with his own money and conveyed to the wife with intent to hinder, delay and defraud the creditors of her said husband, and to decree that the title to the same passed to plaintiff by virtue of an execution sale of said lands under a judgment of the circuit court of Howell county against her said husband, and a sheriff's deed to plaintiff by the sheriff in pursuance of said sale.
The answer was a general denial.
On the part of plaintiff the evidence consisted of the record of a judgment of the circuit court of Howell county in favor of Stillman Sessions against W. D. Mustion and P. P. Dobozy, at the November term, 1888, of said court, for the sum of $ 567.35, together with the costs of suit, which judgment was founded upon a promissory note for $ 500 dated January 15, 1887, and bearing interest at the rate of ten per cent per annum. Execution issued on this judgment, and a return of nulla bona on April 6, 1889. On November 7, 1893, Sessions duly assigned this judgment on the margin of the judgment to John Halstead for value received.
Afterwards, Halstead brought suit on this judgment returnable to the October term, 1894, of the circuit court of Howell county. The action was against W. D. Mustion and P. P. Dobozy. The sheriff's return on the summons was in these words: "Executed the within writ in the county of Howell on the twenty-ninth day of September, A. D. 1894, by delivering a copy of the summons and petition to Pone Mustion and summons to P. P. Dobozy."
The suit was subsequently dismissed as to Dobozy. Afterwards, at the November term, 1894, judgment by default and for want of an answer was rendered against defendant W. D. Mustion, the record reciting that "it appeared to the satisfaction of the court that defendant had been served with process from this court more than fifteen days before the first day of this term of this court and failing to appear or plead to this cause, makes default," thereupon judgment was rendered against him for $ 751.60 and costs and execution awarded therefor. Execution issued and at the June term, 1895, the sheriff, after due notice, sold the lands in suit to John Halstead and executed and delivered to him a sheriff's deed which is in due form, and recorded in the recorder's office of Howell county in book 50, pages 358 and 359. And thereafter this suit in equity was brought on August 17, 1895, returnable to the October term, 1895, of said Howell Circuit Court.
Plaintiff introduced the files showing the pleadings, writs and service and entries of the judgments above set out. He also introduced evidence that defendant Jane Mustion was the wife of W. D. Mustion and had been since about the year 1860. He also offered in evidence that W. D. Mustion was insolvent, and then read in evidence a warranty deed from William L. Owings and wife to Jane Mustion to the land in suit acknowledged March 1, 1894, and recorded the same day.
This was all the evidence on...
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