Hendricks v. Calloway

• Decision Date: 13 April 1908
• Parties: WILLIAM D. HENDRICKS, SCOTTIE A. FOSTER (nee, HENDRICKS), SARAH J. BOWEN (nee, HENDRICKS), MARY E. HENDRICKS and HARVEY A. HENDRICKS v. WILLIAM J., MARY J. and JOSEPHUS CALLOWAY, W. F. McDANIEL and STEPHEN McPHERSON, Appellants
• Court: Missouri Supreme Court

111 S.W. 60

211 Mo. 536

WILLIAM D. HENDRICKS, SCOTTIE A. FOSTER (nee, HENDRICKS), SARAH J. BOWEN (nee, HENDRICKS), MARY E. HENDRICKS and HARVEY A. HENDRICKS v. WILLIAM J., MARY J. and JOSEPHUS CALLOWAY, W. F. McDANIEL and STEPHEN McPHERSON, Appellants

Supreme Court of Missouri, First Division

April 13, 1908

Appeal from Schuyler Circuit Court. -- Hon. N. M. Shelton, Judge.

Reversed and remanded (with directions).

E. R Bartlett for appellants.

(1) Defendants' objection to the introduction of evidence should have been sustained. The petition was self-contradictory, as to first count. The second count failed to state a cause of action -- showed misjoinder of five different actions without mutuality of parties subject-matter or remedy. Such defects were properly raised by objection to evidence. Murphy v. Ins. Co., 78 Mo.App. 79; Malone v. Fidelity & Casualty Co., 71 Mo.App. 1; Jones v. Philadelphia Und's, 78 Mo.App. 296; Boggers v. Boggers, 127 Mo. 305; Staples v. Shackleford, 150 Mo. 471; Rothschild v. Lynch, 76 Mo.App. 339. (2) The depositions of Hendricks, Calloway and McDaniels should have been excluded as to McPherson, and the heirs of David Calloway, being taken before they were parties to the action. And the court's statement in the decree that they were not admissible against these defendants does not cure the error in their admission, when it is apparent that data in such depositions form the basis of such decree. Larrimore v. Bobb, 144 Mo. 446; Case Plow Works v. Ross, 74 Mo.App. 437; Perry v. Moon, 34 Mo. 286. (3) The demurrer to evidence offered at close of plaintiffs' testimony, by Mary J. and Josephus Calloway and McPherson, should have been sustained. The evidence, undisputed, showed David Calloway a bona-fide purchaser for value, without notice of fraud, on a perfect record title, from a party in possession; hence, he took title free from all infirmities, not appearing of record, if any such existed, even though the original purchaser at the trustee's sale may have bought with knowledge thereof. The heirs of David Calloway took his bonafide title. So also were McPherson and McDaniel shown to be bona-fide purchasers for value, without notice, and through the same title. After the transfer to bona-fide holders, plaintiffs' right to redeem was lost. Lindenbower v. Bently, 86 Mo. 513; Hume v. Hopkins, 140 Mo. 165; sec. 7103, R. S. 1889; Rutherford v. Williams, 42 Mo. 18; Hicks v. Beadle, 98 Mo.App. 233; Dwyer v. Rohan, 99 Mo.App. 120; Loan & Trust Co. v. Brown, 157 Mo. 116; Smith v. Boyd, 162 Mo. 146. (4) The evidence failed to show any ground for setting aside the trustee's deed against any defendant, and especially against McDaniel, and the heirs of David Calloway, proven to be bona-fide holders.

C. C. Fogle and Jerry M. Jeffries for respondents.

(1) The court cannot consider appellants' bill of exceptions, for the reason that it does not contain incorporated therein the motion for a new trial. Berkley v. Kahes, 13 Mo.App. 502; McCullom v. Hedges, 20 Mo.App. 688; Story & Camp v. Ragsdale, 30 Mo.App. 196; Jefferson City v. Opel, 67 Mo. 394. This court cannot consider any defects in the record, for the reason the motion in arrest is not incorporated in the bill of exceptions. Authorities cited above. Also: Pracher v. Patrick, 53 Mo. 251; Marquies v. Clark, 64 Mo. 601. This court cannot consider any exceptions taken, for the reason there are no exceptions saved in the bill of exceptions to the overruling of the motion for a new trial. State v. Bennan, 164 Mo. 487; Hubbard v. Queensberry, 32 Mo.App. 459; State v. Reed, 154 Mo. 122; Roe v. Bank, 167 Mo. 406. (2) The motion to suppress the depositions cannot be considered by this court, because it is not incorporated in the bill of exceptions, and because it is not complained of as error in any motion for a new trial. Authorities cited in point 1, above. The court excluded the depositions of Hendricks, Calloway and McDaniel as to all defendants but them. Yet the depositions were competent as to all defendants, for the reason that an objection to them at the time they are offered in evidence comes too late. State ex rel. v. Dun, 60 Mo. 65; McQuillin, Pleading & Practice, sec. 559. The defendants claiming in privity, the depositions were competent and even a motion to suppress should have been overruled. Tindall v. Johnson, 4 Mo. 113; Allen v. Choteau, 102 Mo. 308. (3) Unless the petition totally fails to state a cause of action an objection to the introduction of evidence at the beginning of the trial should not be sustained. Jones v. Phil., 78 Mo. 296; Young v. Iron Co., 103 Mo. 324. Land conveyed in fraud and then title passed to different persons, they may all be joined as defendants in one action for they all have an interest in respect to the fraud. Bliss on Code Plead., sec. 110a; Donnivan v. Dunning, 69 Mo. 436; Bobb v. Bobb, 76 Mo. 419. (4) Hendricks, after his wife's death, had curtesy in her land subject to the deed of trust. Tremmel v. Kleiboldt, 75 Mo. 255; McTigue v. McTigue, 116 Mo. 138; Bassett v. O'Brien, 149 Mo. 381; Casler v. Gray, 159 Mo. 588. There being a curtesy estate outstanding somewhere, owned at one time by W. F. Hendricks, who is still living, the Statute of Limitations could not commence to run against these plaintiffs until the determination of that estate. The remainderman cannot come into court to recover possession of the land before the life estate has terminated. Consequently neither the thirty-year statute nor any other statute of limitation begins to run until the life estate is lifted. Dyer v. Wittler, 89 Mo. 81; Hall v. French, 165 Mo. 430; Shumate v. Snyder, 140 Mo. 77; Smith v. Ins Co., 64 Mo. 330; Bradley v. Railroad, 91 Mo. 498; Brown v. Moore, 74 Mo. 635; Linden Real Estate Co. v. Lindell, 142 Mo. 61; Reed v. Painter, 145 Mo. 341. These plaintiffs may sue to have this cloud removed from their title or they may not sue. In either event the Statute of Limitations does not run against them as long as the curtesy interest is outstanding and the life tenant is living. Reed v. Low, 163 Mo. 519; Andrius v. Vreeland, 29 N.J.Eq. 394; Downing v. Hawthorne, 95 N.W. 801; Inge v. Murphy, 10 Ala. 885; Parker v. Chambers, 24 Ga. 518; Campbell v. Benjamin, 69 Ill. 344. (5) The mother of the plaintiffs having died and left the title in fee, subject to the husband's curtesy in her children, and all of it subject to mortgage, it was a fraud upon these plaintiffs for their father to contract and agree with the defendant, W. J. Calloway, that he should buy 80 acres of the land at $ 1,600 and pay their father $ 400 of the $ 1,600 and with the balance pay the mortgage debt and also buy in the forty acres in question at said foreclosure sale with the agreement that it should be deeded to their father without consideration. The whole purpose of the entire transaction was to defeat plaintiffs of their title to the lands in controversy and to place the whole surplus over and above the mortgage debt into the possession and control of their father. This was the rankest kind of fraud. Dickson v. Kempinsky, 96 Mo. 252; Snell v. Harrison, 104 Mo. 158; Baldwin v. Whitcomb, 71 Mo. 651; Hoge v. Hubb, 94 Mo. 489. Collusion or fraud is seldom susceptible of positive proof. The chancellor has the right and it is his duty to consider the entire surroundings of the transactions, the relationship and conduct of the parties, and then make such reasonable inferences as all the facts warrant. New England Loan & Trust Co. v. Brown, 177 Mo. 412. It is not necessary that fraud be intended but is sufficient if the acts of defendants were such as to constitute fraud. Sheridan v. Nation, 159 Mo. 38; Orr v. McKee, 134 Mo. 78; Cassidy v. Wallace, 102 Mo. 575; Hall v. Goodnight, 138 Mo. 576; Clarkson v. Greely, 40 Mo. 114. Courts of equity have always recognized that still small voice of suggestion emanating as it will from continguous facts and surrounding circumstances pregnant with inferences in all cases where fraud is charged. Ins. Co. v. Smith, 117 Mo. 292; Major v. Bukley, 51 Mo. 227; Leavitt v. LaForce, 71 Mo. 353; Roan v. Winn, 93 Mo. 503. A sale of more land than was necessary will result in vitiating the sale. Kelsay v. Bank, 166 Mo. l. c. 173; Lazarus v. Caesar, 157 Mo. 199. (6) The sale contract among defendants being unusual, is a fraud on its face. Baldwin v. Whitcomb, 71 Mo. 651; Dickson v. Kempinsky, 96 Mo. 252; Snell v. Harrison, 104 Mo. 158. One who claims to hold title acquired from an innocent purchaser has the burden of so establishing. Bank v. Stanley, 46 Mo.App. 440; Johnson v. McMurrey, 72 Mo. 282; Ins. Co. v. Smith, 117 Mo. 261.

OPINION

LAMM, J.

This is the appeal of above defendants from a final decree in equity in a cause going from Scotland to Schuyler county on change of venue. There were other parties defendant (among them, William F. Hendricks) not appealing. Plaintiffs are the surviving children of said William F. Hendricks and one Martha A. Hendricks, his wife, deceased.

The decree, nisi, vests the title of the Southwest one-fourth of the Northwest one-fourth of section 3 and the Southeast one-fourth of the Northeast one-fourth of section 4 (hereinafter, for convenience, both forties are called tract "A") and the Northwest one-fourth of the Northwest one-fourth of section 5 (for convenience, hereinafter called tract "B") -- all in township 64, range 11, in Scotland county -- out of defendants and into plaintiffs, subject to the life estate of defendant Hendricks, said life estate being an estate by curtesy found by the chancellor to be now owned by his codefendants (the Calloways and McDaniel), and subject further to the payment of $ 125.30 found by the chancellor to be due defendant William J. Calloway as redemption from two certain deeds of trust.

To...