Hamilton v. McLean

• Decision Date: 21 May 1902
• Parties: HAMILTON v. McLEAN et al.
• Court: Missouri Supreme Court

68 S.W. 930

169 Mo. 51

HAMILTON v. McLEAN et al.

Supreme Court of Missouri, Division No. 1.

May 21, 1902.

JUDGMENTS — FRAUD — PLEADING — ISSUES.

1. In a suit to set aside a judgment as obtained by fraud, plaintiff's statement in his petition as to what was the issue in the action, the judgment in which is attacked, is a legal conclusion; and the court will examine the pleadings in such action as copied in the pleadings in the present suit, to ascertain what the issues really were.

2. Where the petition in a partition suit alleged that a deed under which defendants claimed was void, and the answer set up the deed, alleging its execution and delivery, and claiming thereunder, and the reply denied that the deed was the act and deed of the grantor therein, the issue of the genuineness of the deed was presented.

3. Defendants in partition claimed under a deed, the genuineness of which was denied by plaintiff, and obtained a decree establishing their rights thereunder. Plaintiff brought suit to set aside the decree as obtained by fraud, averring that it had since been discovered that the deed was false and forged. Held, that the fraud was not in the act of procuring the judgment, but was in the cause of action itself, so that it could have been interposed as a defense, and hence was not ground for setting the decree aside.

4. The fact that defendants represented prior to the trial that the deed was genuine did not excuse plaintiff for failing to attack its genuineness on the trial.

Appeal from circuit court, Buchanan county; Jacob Kline, Special Judge.

Suit by Edward W. Hamilton against Finis L. McLean and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is a proceeding in equity, instituted September 26, 1898, to avoid, set aside, and annul a partition decree entered in a suit by this plaintiff against Eliza Armstrong (now deceased) and these respondents, rendered in the Buchanan circuit court on January 28, 1895. The defendants demurred to the original petition filed, whereupon plaintiff filed an amended petition. To this, defendants also demurred. In the meantime, upon plaintiff's application for a change of venue, Judge Jacob Kline, of St. Louis, was called in to try the case, and this last demurrer was sustained, and plaintiff filed the following second amended petition, to wit:

"Petition. Now comes said plaintiff, and, for his second amended petition herein, states: That the defendants Finis L. McLean and Susan J. McLean are husband and wife. That on or about the 2d day of August, 1889, the plaintiff and his brother, John L. Hamilton, were the owners in fee, as tenants in common, each, of an undivided half of the following described real estate, situate in the county of Buchanan and state of Missouri; that is to say: Lots 1 and 12 in block 40, lot 12 in block 53, lots 5 and 6 in block 57, lots 7, 8, and 9 in block 64, the south half of lot 11 in block 40; also a lot or parcel of ground bounded and described as follows: Beginning at the southwest corner of lot 1 in block 61; thence north with the west line of lots 1, 2, and 3, in said block, 110 feet; thence east 23 1/3 feet; thence south 110 feet to the south line of said lot 1, being the north line of Felix street; thence west to the place of beginning, — together with an interest in and to an alley ten feet in width on the north side thereof; all of said land hereinbefore described being in the original town (now city) of St. Joseph. That on the 2d day of August, 1889, the said John L. Hamilton, then being and remaining so seised of said lands, and a resident of said county, died intestate, without issue, and without ever having been married, leaving as his only heirs at law the plaintiff, who was and is his only brother, and Mrs. Eliza H. Armstrong, his only sister. That the said Eliza Armstrong died in the year 1896, being then a widow, and leaving as her only children and heirs at law the defendants Susan J. McLean and Isabella A. Bates. Plaintiff further states that on the very day of the death of the said John L. Hamilton, the defendants Finis L. McLean, Susan J. McLean, and Isabella A. Bates filed in the office of the recorder of deeds for said Buchanan county, and caused to be spread upon the record of deeds of said county, in Book 167, at page 576 thereof, an instrument of writing dated July 29, 1889, purporting to be a deed of conveyance signed by the said John L. Hamilton, and purporting to be by him duly acknowledged, whereby he appeared to convey to the said Susan J. McLean and Isabella A. Bates the undivided one-half of said premises, being his entire interest in and to all the land and real estate hereinbefore described. Plaintiff further states that the said defendants herein, and each of them, soon after said deed was placed of record as aforesaid, and at divers times subsequent thereto, and before the trial of the partition suit hereinafter referred to, falsely and fraudulently represented and stated to this plaintiff that the said deed had been signed, executed, and acknowledged by the said John L. Hamilton upon the day of its date, and said defendants caused one John T. Quigley, the notary public before whom said deed purported to have been acknowledged, to falsely join in such representations and assurances, all of which statements and representations were known by these defendants to be false, and were made by them for the purpose of deceiving and defrauding this plaintiff, and inducing him to believe that said deed was genuine, when in truth and in fact said deed was false and forged, and was made and contrived by the defendants, and used by them, for the purpose of deceiving and misleading the plaintiff, and to enable them fraudulently thereby to finally obtain title to the said real estate herein described. Plaintiff further states that the aforesaid false and forged deed so filed for record and recorded in the recorder's office in and for Buchanan county, state of Missouri, on the 2d day of August, 1889, had appended and attached thereto a genuine certificate made by one John T. Quigley, then and there a notary public within and for said county, stating that the said John L. Hamilton had on the 29th day of July, 1889, personally appeared before him, and had acknowledged the execution of said deed, which certificate so made was wholly and utterly false; that at the date of the aforesaid false certificate the said John T. Quigley was, and for years prior thereto had been, a well-known and duly qualified and acting notary public within and for said Buchanan county; that said deed was prepared by the said Finis L. McLean in the office of the said Quigley, and was drawn upon a single sheet, and upon a printed blank form commonly used for a general warranty deed; that the written portions thereof, as well as all the written portions in the body of the certificate of acknowledgment thereto, were and are all in the proper handwriting of the said defendant Finis L. McLean; that upon the date that said forged and spurious deed bears date there were two other deeds conveying other property in fact executed by the said John L. Hamilton, and acknowledged by him before the said Quigley, at the residence of the said Hamilton, and while the said Hamilton was greatly enfeebled by sickness, and the said Finis L. McLean by substitution and false representations induced the said Quigley to understand and believe that the said John L. Hamilton had in fact executed and acknowledged the deed here in question; that the said false and spurious deed and the said false and spurious notarial certificate attached thereto were all designed, concocted, and contrived by the said Finis L. McLean, acting for the other defendants, and by him, through artifice and deceit, imposed upon the said John T. Quigley, and the said John T. Quigley's certificate as notary aforesaid fraudulently obtained thereto; that the said Finis L. McLean so concocted and contrived said deed, and so misled and imposed upon said notary, for the sole purpose of deceiving, cheating, and defrauding this plaintiff, as hereinbefore alleged, all of which was well known to these defendants at the time of the trial of the suit in partition hereinafter referred to. Plaintiff further states that the forgery of said deed was and is skillfully executed, and the pretended signature of the said John L. Hamilton thereto skillfully simulated, and said simulation was and is so perfect as to deceive all persons except experts in handwriting having proper appliances for making a skillful examination of the handwriting in order to detect the dissimilarity; that plaintiff was not skilled in disputed handwriting, or in detecting spurious and forged signatures, as said defendants well knew. Plaintiff further states that there was nothing upon the face of the deed sufficient to, or which would be likely to or did, create any suspicion in the mind of the plaintiff herein that it was not what it purported to be (that is to say, the genuine act and deed of the said John L. Hamilton); that, in order to have discovered the forgery and the spurious character of the said instrument, it would have required a skillful examination thereof by experts in handwriting, with proper appliances therefor; and that the plaintiff, upon seeing and inspecting said deed, and hearing the statements made by defendants as to its execution, and seeing the official certificate appended and attached thereto as aforesaid, had no reason to suspect, and did not suspect, that the instrument was other than what it purported to be and was represented to be by these defendants, and by the notarial certificate attached thereto, and that plaintiff had no reason to believe or presume or suspect, and that he did not presume, believe, or suspect, that said deed was in fact a forgery, and that said notary's certificate was false, and had been fraudulently procured and made, as aforesaid.

"Plaintiff further states...