Harrison v. Slaton

• Decision Date: 08 April 1932
• Docket Number: No. 30057.,30057.
• Citation: 49 S.W.2d 31
• Parties: HARRISON et al. v. SLATON et al.
• Court: Missouri Supreme Court

49 S.W.2d 31

HARRISON et al. v. SLATON et al.

No. 30057.

Supreme Court of Missouri, Division No. 2.

April 8, 1932.

Appeal from Circuit Court, Cole County; Henry J. Westhues, Judge.

Suit by James H. Harrison, executor of the estate of John C. Harrison, deceased, and others, against Allie W. Slaton and another in which Fred A. Benz and wife were made parties defendant, and filed a cross-bill. Judgment for plaintiffs, and, from an order overruling their motion to set aside the judgment, cross-complainants appeal.

Affirmed.

Mark A. McGruder and Fred A. Benz, both of Sedalia, for appellants.

D. W. Peters, of Jefferson City, for respondents.

COOLEY, C.

Appeal by two of the defendants from an order of the circuit court of Cole county overruling their motion to set aside a judgment rendered by the same court at a prior term thereof. Plaintiffs, five in number, and defendant Allie W. Slaton, were the children and only heirs of John C. Harrison, late of Cole county, who had died in 1920 seized of the real estate herein referred to. After the death of his widow, plaintiffs brought this suit to the May, 1928, term of the Cole county circuit court, naming Allie W. Slaton and one P. R. Schnabel as defendants. Mrs. Slaton, though duly served with process, never appeared in the case. At the return term, Schnabel filed an answer disclaiming any interest, and Fred A. Benz and his wife, Susie M. Benz, claiming to have purchased Mrs. Slaton's interest, were made parties defendant upon their own motion, entered their appearance, filed answer, and cross-bill, and thereafter contested the case as the only active defendants. They are the only appellants here, and we shall hereinafter refer to them as appellants.

In view of certain contentions made here it will be necessary to summarize the pleadings. The petition is in two counts. The first count states the relationship of the parties as heirs of John C. Harrison, the death of the latter testate, the probate of his will in the probate court of Cole county, and that he died seized of certain lands, describing them — 240 acres in Cole county — sets out a copy of the will, alleges that the executor and executrix therein named have administered the personal estate and paid all debts and administration expenses, and have submitted to the probate court a "final settlement" which has been approved, but that the executor and executrix were never discharged; that the widow of said John C. Harrison died October 7, 1927.

The will, as set out, after providing generally that his debts be paid, gives testator's widow a life estate in all his real estate and personal property with power to sell any or all as she sees fit, and provides that at her death all that remained "shall be divided between my children as follows", following which the testator in paragraphs 4 to 9 inclusive gives to each of his six children a specified sum of money, the sums differing, and in paragraph 10 provides that the rest of his estate, if there be any, shall be equally divided among said children. His widow and his son James are named executrix and executor without bond.

It is then alleged in count 1 of the petition that Mrs. Slaton had made a "pretended" conveyance of her interest to Schnabel by deed, and that defendants "claim and assert some title and interest" in the lands adverse and prejudicial to the title and interest of plaintiffs. This count prays the court to ascertain, determine, define, and adjudge the rights, title, interests, and estates of the parties, and for general relief.

The second count repleads by reference the allegations of the first, alleges that because of existing conditions an immediate sale of the real estate would not be to the best interests of the said heirs, and prays that the surviving executor be authorized and directed to rent the real estate for one year, and at the end of such time to sell same and distribute the proceeds as provided by the will, "and for all other proper relief warranted in the premises," and for costs and attorney fees.

Appellants' answer admitted the relationship of the parties to John C. Harrison, deceased, and his ownership of the land at his death, and alleged that Mrs. Slaton had owned a one-sixth interest which the appellants purchased from her, and that she executed and delivered to them a deed with no grantee's name therein, but with authority in them to insert the name of a grantee, and that they did insert the name of defendant Schnabel as grantee so that he would hold the title as trustee for them (evidently without his knowledge), and that he "now refuses further to act as such trustee," but that they are the beneficial owners of said one-sixth interest and prayed the court so to adjudge.

For further answer and cross-bill they repleaded by reference the former allegations, and further alleged, in substance, that they and the plaintiffs were the owners of the land, plaintiffs having derived title from John C. Harrison, deceased; that they (appellants) owned an undivided one-sixth interest; that plaintiffs claimed and asserted title "adverse and prejudicial" to their title, and, by prayer similar to and as broad and inclusive as that of plaintiffs, prayed the court to ascertain, determine, and adjudge the "respective rights, titles, interest and estates" of all the parties in said lands, to adjudge that appellants owned said one-sixth interest, and "for all other proper orders and relief in the premises." By another count they alleged ownership of a one-sixth interest in the land; that the individual plaintiffs each owned one-sixth; that the lands could not be "equally divided without great prejudice to the parties interested," and prayed judgment "for a sale of the lands and premises and a division of the proceeds thereof among all the parties aforesaid, according to their respective rights and interests," for a reasonable attorney fee and costs, "and for such further relief as the court may deem meet and just." This last count, while it does not specifically ask partition, was no doubt so intended.

Plaintiffs by reply joined issue with the affirmative allegations of the answer and cross-bill.

On June 16, 1928, at said May term, the cause was tried to the court, the plaintiffs and appellants being present and participating. The circuit court record shows finding and judgment by the court as of that date in substance and effect as follows: The court found that John C. Harrison died testate, seized of the lands (describing them), and naming the surviving widow and heirs as above shown; that by his will, which had been duly probated, he named his widow and his son James as executrix and executor, who qualified; that said widow died October 7, 1927; that by the terms of the will testator's property was to be divided as follows (describing as in the will); that deceased left sufficient personal property to pay his debts and funeral expenses, "and that there was no property from which said legacies or bequests could be paid other than the real estate hereinbefore described"; that said John C. Harrison, deceased, "vested a fee simple title in his son James H. Harrison in and to said lands hereinbefore described subject to the life estate of testator's wife, Callie G. Harrison, for the express purpose of enabling the said James H. Harrison to sell and dispose of said real estate in order that the bequests named by the testator in his will might be satisfied from the proceeds of the sale of said real estate"; that the estate otherwise had been administered, all debts paid, and that the real estate was unincumbered. The court adjudged and decreed that James H. Harrison as executor was vested with the fee-simple title to said real estate and empowered to sell same for the purpose of paying the legacies provided for in the will; that the "defendants and intervenors" (appellants) have no "right, title or interest" in the real estate, and that they and all persons claiming through or under them are barred from setting up title or claim to the real estate; that the executor might have twelve months from rendition of judgment in which to sell said real estate at public or private sale, and, "in the event said sale is consummated before a certain cause entitled Fred A. Benz and Susie M. Benz v. P. R. Schnabel, Jesse L. Slaton and his wife Ella (Allie?) W. Harrison Slaton, now pending in the circuit court of this county, shall have been determined, that the legacy allotted to Allie W. Slaton under and pursuant to the terms of the will of said John C. Harrison, deceased, shall be held by said executor until the final determination of said suit."

No motion for new trial or in arrest of judgment was filed.

At the February term, 1929, of the court, and, as stated in their abstract, on March 23, 1929, appellants filed a motion to set aside the aforesaid judgment and a deed which, as alleged in the motion, had in the meantime, on February 4, 1929, been executed by the executor conveying the land to one Mary Bellman (not a party to the suit) to whom the executor had sold it, "purporting to act under said order or judgment." The motion is too long to set out, comprising 36 paragraphs and covering 9 printed pages. We shall attempt to summarize its pertinent allegations. It charges in substance:

(a) That no minute or record entry of judgment was made at the June term, 1928, but that the minute and judgment entries now appearing of record were actually written on the records during the succeeding October term.

(b) That a certified copy of "said order or judgment" was thereafter filed and recorded in the recorder's office, "but that said order or judgment is void because it was not pronounced or written by the said court during the said May term, 1928, of the said court, and as recorded is not a correct copy of said judgment."

(c) That on February 4, 1929, plaintiff executor, purporting to act under the judgment, sold and conveyed the lands in question...