Heffernan v. Ragsdale

• Decision Date: 21 November 1906
• Citation: 97 S.W. 890,199 Mo. 375
• Parties: HEFFERNAN, Appellant, v. RAGSDALE
• Court: Missouri Supreme Court

97 S.W. 890

199 Mo. 375

HEFFERNAN, Appellant, v. RAGSDALE

Supreme Court of Missouri, Division One

November 21, 1906

Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.

Affirmed.

F. S Heffernan pro se.

Respondent is not an innocent purchaser for value. Young v Schofield, 132 Mo. 650. The plea of being an innocent purchaser is an affirmative defense, and must be supported by affirmative evidence. The onus lies on the pleader. Holsa v. Holsa, 8 Mo. 303; Sillyman v. King, 36 Iowa 308; Frost v. Beekman, 1 Johns. Ch. 288; Jewett v. Palmer, 7 Johns. Ch. 65; Holdsworth v Shannon, 113 Mo. 525; Ins. Co. v. Smith, 117 Mo. 294; Young v. Schofield, 132 Mo. 663. In order for a party to assume the role of innocent purchaser, he must be one who is "a bona fide purchaser for a valuable consideration without notice." 1 Story, Eq. Jur. (13 Ed.), pp. 63, 387, 417, 438; Ib. 825. Respondent's answer is insufficient, in this, that it fails to show that he is an innocent purchaser for value and without notice of fraud, and fails to properly plead what his interest is and his source of title. It is not required of appellant to move to have the answer made more definite and certain. Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 397. It is not pretended or contended by respondent that the execution sale under which he secured his deed to the lots in question was for the satisfaction of the judgment regularly made. The proof shows the object was to get title to the lots for $ 60, and no more. Jones v. Driskill, 94 Mo. 191. The respondent not being an innocent purchaser, for a valuable consideration, acquired no title to the property in question. Bagby v. Sligo Furnace Co., 120 Mo. 248. The answer does not contain the necessary averment to maintain the defense of an innocent purchaser. Sec. 648, R. S. 1899. The material allegations of appellant's petition "not controverted by the answer for the purpose of the action," are taken as true. Sec. 628, R. S. 1899. The statutes do not permit of the latitude of indirect denial of the allegations of the petition. Boles v. Bennington, 136 Mo. 529. The answer failing to specifically deny the charge of fraud, such charge is taken as confessed. Boles v. Bennington, supra. The respondent's answer denying "each and every allegation therein contained," except defendant "admits that he claims title to lots four and five of block 16, described in plaintiff's petition," is not sufficient, and for want of denial, stands confessed. Boles v. Bennington, 136 Mo. 528. It was not necessary for appellant to raise this point of confession in the trial court. Snyder v. Free, 114 Mo. 360. The charges of fraud should have been specifically and definitely denied. Long v. Long, 79 Mo. 644; Young v. Schofield, 132 Mo. 650; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 389; Leete v. Bank, 141 Mo. 574. Defendant's answer as filed is no answer to plaintiff's petition. Dezell v. Fidelity & Casualty Co., 176 Mo. 279. A verdict will not be permitted to stand unless it be supported by substantial evidence. Bluementhal v. Torini, 40 Mo. 159; Rea v. Ferguson, 72 Mo. 225; Crane v. Timberlake, 81 Mo. 481; Avery v. Fitzgerald, 94 Mo. 207; Ashley v. Green, 38 Mo. 262. For want of legal service of the summons on the Real Estate Investment Co., the trial court was without jurisdiction and the Hobart judgment is a nullity. Sec. 995, R. S. 1899; Horn v. Railroad, 88 Mo.App. 477.

Geo. D. Ragsdale for respondent.

(1) The trial court committed no error in not giving plaintiff judgment on the pleadings. He never asked for judgment on the pleadings. (2) Defendant's general denial covers the question of innocent purchaser for value and without notice. It is not admitted by failure to affirmatively deny knowledge. (3) The plaintiff has not shown by competent evidence that the Hobart judgment against the Real Estate Investment Company was grounded in fraud or obtained by fraud. Neither does he allege such facts in his petition or reply. He simply alleges "that defendant Ragsdale had notice that the Hobart judgment under which he claims title was fraudulent and void." (4) There is no evidence whatever in the whole record that the defendant Ragsdale knew anything about any fraud in the Hobart judgment. (5) The judgment of the trial court, setting aside the original Hobart judgment on motion of the receiver of the Real Estate Investment Co., is not binding on the defendant Ragsdale, for the reason that it was long after his purchase and he was not a party to the proceeding, and had no notice of it. And said judgment on said motion was not competent evidence against defendant Ragsdale. (6) Taking this judgment setting aside the Hobart judgment out of the record, there is absolutely nothing left that would even have a tendency to prove the Hobart judgment was fraudulent. (7) Plaintiff clearly failed to make out a case of fraud; and where judgments and sales under them are sought to be set aside and annulled for fraud the facts constituting the fraud must be clearly proven. (8) Neither the sheriff's return nor the judgment nor the sale can be questioned in a collateral proceeding.

OPINION

GRAVES, J.

Appellant brought suit in the circuit court of Greene county and in his petition asked the court to define the title of himself and respondent in and to four lots in Boulevard addition to the city of Springfield, Missouri. The petition is in the usual form except that it specifically points to the manner in which respondent claims title, in this language:

"The plaintiff states that the defendant has placed on record a deed indicating that he claims a title to said lots. Wherefore plaintiff prays this honorable court to ascertain under section 650, chapter 8, article 5, of the Revised Statutes of the State of Missouri of the year 1899, to determine plaintiff's interest in said above-described real estate, and quiet the title thereto.

"The defendant is not an innocent purchaser for value, and had notice of the fraudulent judgment under which he claims title."

By answer respondent denied each and every allegation of appellant's petition, but admitted that he claimed to own two of the lots, and had claimed to own the others, but had previously conveyed by warranty deed and stood ready to defend his title to all of the lots. In addition the answer contained the following:

"That the plaintiff claims all of said property by virtue of a sheriff's deed under execution levied against said lots as the property of the Real Estate Investment Company. That at the time said execution was levied against said lots, the judgment under which it was issued was more than three years old, and was not a lien against any real estate of said company, and that at the time said execution was levied this defendant was the owner of said property in fee simple.

"Wherefore defendant prays that the title to said lots be quieted in him, and that the said deed by the sheriff to the plaintiff be declared void and for naught held, and having fully answered defendant asks to be discharged with his costs and for all other and proper relief."

It was admitted that the common source of title was the Real Estate Investment Company. To sustain the issues upon his part appellant introduced in evidence a judgment of the Greene Circuit Court in the case of Susan P. Breed against the Real Estate Investment Company for $ 6,366.85 and $ 45.45 costs, of date January 14, 1897, and also a judgment of the same court in favor of George H. Shields against said Investment Company for $ 6,055.50 debt and $ 9.85 costs of date May 16, 1895.

Plaintiff then offered a sheriff's deed under the first judgment, which deed is of date February 6, 1903, and recites that the execution under which the sale was had and the deed made was March 26, 1902. This deed covers the property in question with other property.

Appellant testifying for himself stated that he held the property for himself and Mrs. Breed. The property sold under this execution all brought $ 79.05.

Appellant then placed respondent upon the stand as a witness and the testimony given by him is to this effect: That in looking over the records of Greene county, he concluded that there were nine lots in Boulevard Addition to Springfield to which the Real Estate Investment Company had title; that he also discovered that B. F. Hobart had a judgment which was a subsisting and valid lien on these lots; that being in St. Louis on business he called to see Hobart to see if he could have execution issued and these lots sold but failed to find him, but did talk with Adiel Sherwood, his attorney; that Sherwood stated that Hobart had made several sales and never realized expenses, and asked respondent if he would see that the lots brought Hobart $ 50; respondent said that he would guarantee that much provided Hobart would see that he got the lots for that sum; Sherwood agreed to see Hobart; that he did not hear from Sherwood, but later, Mr. Massey, Hobart's attorney in Springfield, agreed that if respondent would see that Hobart got $ 60 out of the lots, they would have execution issued and the lots sold, to which respondent agreed; execution was issued, the lots sold, and bought by defendant upon a bid of $ 600, but he only paid Massey for Hobart the $ 60. Respondent denied knowledge of any fraud in the judgment under which he bought and denied any knowledge of the suits and judgments of Shields and Breed, except that he says that he might have noticed the judgments, but knew the liens had expired, and when he was looking it was for judgments which were or might be subsisting liens upon the property. Out of the mass of this testimony, the above states that which is material to the issues.

Respondent then introduced his sheriff's...