Hamilton v. McLean

• Decision Date: 08 June 1897
• Citation: 41 S.W. 224,139 Mo. 678
• Parties: Hamilton, Appellant, v. McLean et al
• Court: Missouri Supreme Court

41 S.W. 224

139 Mo. 678

Hamilton, Appellant, v. McLean et al

Supreme Court of Missouri, Second Division

June 8, 1897

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

James F. Pitts for appellant.

(1) This is a proceeding in equity by which plaintiff seeks to set aside a decree in partition, and to cancel a forged deed upon which that decree is based. The lower court on demurrer dismissed the bill. (2) A forgery, except by consent expressed or implied, can not be made the basis of a right in any form whatever. Remington Paper Co. v O'Dougherty, 16 Hun. 594; Jackson v Summerville, 13 Pa. St. 359, 368; Rowland v. Jones, 2 Heisk. (Tenn.) 321; Dunn v. Miller, 96 Mo. 324.

M. A. Reed and B. R. Vineyard for respondents.

(1) The fraud which will justify a court in setting aside and annulling a final judgment or decree is confined to fraud exercised in the procurement of the judgment or decree which is attacked, and does not extend to any fraud on which the original suit was founded. Nichols v. Stevens, 123 Mo. 96, loc. cit. 116; Irvine v. Leyh, 124 Mo. 361; Oxley Stove Co. v. Butler Co., 121 Mo. 630; Smith v. Sims, 77 Mo. 274; Murphy v. DeFrance, 105 Mo. 64; Richardson v. Stowe, 102 Mo. 33; Murphy v. DeFrance, 101 Mo. 151; Irvine v. Leyh, 102 Mo. 206-207; Davis v. Wade, 58 Mo.App. 645; Mayor v. Brady, 115 N.Y. 599, 614-618; U. S. v. Throckmorton, 98 U.S. 61; 1 Herman on Estoppel, 457-461. (2) The above line of Missouri cases establishes beyond any question that in this State courts of equity will not vacate judgments merely because they are based upon a cause of action which may be vitiated by fraud, for this is a valid and meritorious defense which may be interposed in the first suit. And unless its interposition is prevented by fraud of an adversary, it can not be asserted against the judgment. Nichols v. Stevens, 123 Mo. 116; U. S. v. Throckmorton, 98 U.S. 66; Vance v. Burbank, 101 U.S. 514; 1 Herman on Estoppel, 458, 459. (4) The plaintiff's petition is defective in failing to show diligence in discovering the alleged forgery of that deed, and that he was free from fault in introducing it himself in evidence, and in failing to show that he acted with promptness in seeking to be released from its effects. All these are required before a contract formally executed or a judgment duly entered can be annulled. Lewis v. Land Company, 124 Mo. 687, 688; Taylor v. Short, 107 Mo. 384; Estes v. Reynolds, 75 Mo. 563; Lapp v. Ryan, 23 Mo.App. 439; Hart v. Hendlin, 43 Mo. 175; Grimes v. Saunders, 93 U.S. 55; Disbrow v. Secor, 58 Conn. 35; Hicks v. Ferdinand et al., 20 F. 111. Common prudence required the plaintiff in the first suit to examine the deed for himself, or "forever after to hold his peace." It was accessible to him. He read it in evidence. Besides, if at any time it had been in possession of the other side, and he had desired an inspection thereof, he could have secured its production through an order of court. His want of prudence is inexcusable. Lewis v. Land Company, 124 Mo. 687. (5) If the plaintiff had alleged in his petition in this suit that he had relied on the allegations of defendants' answer in the original litigation, charging the deed in controversy to have been duly executed by the grantor therein, which he hints at but does not directly charge to be a fact, it would not have availed him in this action. In that original suit the parties were dealing at arm's length, and neither had a right to rely on any allegations in the pleadings of the other. Haas v. Billings, 42 Minn. 63; Lewis v. Land Company, 124 Mo. 687; Smith v. Sims, 77 Mo. 274; Railroad v. Ennor, 116 Ill. 63, 64; 1 Herman on Estoppel, 458. (6) The Supreme Court was the proper court to grant the leave to open up the original suit. It not only failed to grant such leave in its decree, but refused on an application for such leave (which application it heard on its merits) to consent to the opening up of the case for further investigation. Southard v. Russell, 16 How. 547; Kimberly v. Arms, 40 F. 548. (7) In proceedings of this kind to open up and set aside a final decree regularly rendered, where the ground of relief is based on fraud charged to have been exercised by the successful party, there must be an affidavit of merits. 1 Black on Judgments, sec. 347; Brick v. Burr, 47 N.J.Eq. 189; Livingston v. Hubbs, 3 Johns. Ch. 126, Kent Ch.; Osgood v. Smock, 40 N.E. 37; 2 Thompson on Trials, sec. 2762. (8) Nor will a party in this State be permitted to try his case on one theory, and afterward try it again on a different theory. Bray v. Seligman, 75 Mo. 31; Bettes v. Magoon, 85 Mo. 580; Whetstone v. Shaw, 70 Mo. 575; Holmes v. Braidwoods, 82 Mo. 617.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is a proceeding in equity by which plaintiff seeks to set aside a decree of partition, rendered by the circuit court of Buchanan county in pursuance of a mandate of the Supreme Court. The petition, leaving off the formal parts, is as follows:

"Plaintiff for his amended petition says that the defendants, Finis L McLean and Susan J. McLean are husband and wife: That heretofore, to wit, on the second day of August, 1889, John L. Hamilton departed this life, unmarried and without issue, leaving as his heirs at law the plaintiff and a sister, the defendant Eliza H. Armstrong; that plaintiff and said John L., at the time of the death of the latter, owned as tenants in common certain real estate lying and being in the county of Buchanan, to wit: 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 one-half of lot 11 in block 40; also certain real estate 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, one hundred and ten feet, thence east twenty-three and one third feet, thence south one hundred and ten feet to the south line of said lot 1 and 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 in the original town, now city, of St. Joseph. That on the morning of the day of the death of said John L. Hamilton, defendant Susan J. McLean and Isabella A. Bates caused to be placed upon the deed records of said county, in book 167, page 576 thereof, an instrument purporting to be a deed signed by said John L. Hamilton, under and by which he appeared to convey to them jointly an undivided one half of all the real estate aforesaid; that the signature to and upon said deed, purporting to be that of John L. Hamilton as grantor, is forged; that said deed was not drawn or signed by said John L. Hamilton, nor by anyone by him authorized so to do, and falsely purports to be an instrument executed by the said John L. Hamilton.

"That defendants McLean and Bates, knowing said deed and the signature thereto to be a forgery, and with intent to mislead, deceive and defraud plaintiff, caused the same be recorded as aforesaid; and, relying upon the representation so falsely and fraudulently made by the act of recording said deed, and believing on account thereof that said John L. Hamilton had in fact signed such a deed as purported to be on record, this plaintiff, on the day of September, 1889, filed in the office of the clerk of this court his petition in equity praying that said deed might be avoided and annulled, and for partition of the premises aforesaid; that defendants here were defendants in said partition proceeding; that plaintiff, relying upon said false representation and believing therefrom that defendants McLean and Bates were in possession of a genuine deed signed by said John L. Hamilton, charged in his petition for partition that the same had been obtained by undue influence of said defendants; that defendants answered jointly and denied said charge and further, in their answer in said case, the defendants McLean and Bates, knowing that this plaintiff had been misled and deceived as aforesaid, and with intent to mislead, deceive and impose upon the court, set up and pleaded said deed as genuine, knowing the same to be forged, and prayed the court to award them, the defendants Susan J. McLean and Isabella A. Bates, one half of the real estate aforesaid.

"That such proceedings were thereafter had in said cause that this court held said deed void, and decreed partition between this plaintiff and said Eliza H. Armstrong, and from this judgment defendants McLean and Bates appealed, and upon said appeal the Supreme Court reversed the judgment of this court and by its mandate directed this court upon the pleadings and evidence then before it to enter a decree for partition between the plaintiff and the said Susan J. McLean and Isabella A. Bates, which was by this court, pursuant to said mandate, done accordingly at the January term, 1895, of this court, and on the day of February, 1895.

"And further this plaintiff says that he had no reason to suspect the fraud and imposition upon himself and the court as hereinbefore alleged prior to the issuing of said mandate, or prior to the adjournment of the term at which said mandate was ordered to issue, but that afterward, on or about the 20th day of March, 1894, and during the taking of the deposition of the female defendant, Isabella A. Bates, in another cause then pending, she made such statements as to arouse the suspicion of the plaintiff as to the genuineness of the deed for the premises aforesaid purporting to be signed by John L. Hamilton that in addition to the deed for the premises aforesaid so recorded on the day of the death of said John L. Hamilton, there were also recorded, at the same time and...