Hope v. Blair

• Citation: 16 S.W. 595,105 Mo. 85
• Parties: HOPE v. BLAIR.
• Decision Date: 02 June 1891
• Court: Missouri Supreme Court

16 S.W. 595

105 Mo. 85

HOPE v. BLAIR.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

RES ADJUDICATA — ATTACHMENT — QUITCLAIM — EJECTMENT.

1. Where a bill in equity against a husband and wife charges that she was the owner of certain lands as her separate estate, and executed a note to the plaintiff, thereby charging the land for its payment, and the court finds the facts to be as stated and decrees a sale of the land, the sale cannot be collaterally attacked on the ground that the wife's title to the land was a simple legal estate, which could not be charged for debts contracted by her.

2. The lien of an attachment is confined to the debtor's interest in the land, and notice to the purchaser at the sale on execution will give priority to unrecorded deeds and equities against the land.

3. A purchaser by quitclaim deed of land held by a wife as her separate estate takes subject to the equitable lien of a debt contracted by her husband made a charge on the land, though the instrument by which the charge was created is not recorded.

4. A defendant in ejectment cannot complain of the admission of a copy of a deed, without proof of the loss of the original, which is a necessary link in one of two chains of title under which he claims.

5. In ejectment under a claim for damages "to the amount of $100, and accruing rents and profits at $10 a month," the damages recoverable are not limited to $100, but may include the rent and profits down to the time of assessing the same.

Appeal from circuit court, Shelby county; THOMAS H. BACON, Judge.

W. O. L. Jewett and C. L. King, for appellant. R. P. Giles, for respondent.

MACFARLANE, J.

Ejectment to recover possession of the E. ½, lot 9, in Taylor & Towson's addition to Shelbina. Answer, general denial. It was admitted on the trial that Julia A. Wilson, wife of Newton Wilson, was the common source of title, and that defendant was, at the commencement of the suit and at the trial, in the possession of the property. Plaintiff offered in evidence the records and proceedings of the circuit court of Shelby county in a suit by plaintiff herein, as guardian of some minor children, against Julia A. Wilson and her husband, commenced on the 4th day of February, 1885. This record shows that on the 17th day of August, 1883, Julia A. Wilson was the owner of the land as her separate estate in equity, and on said day she executed and delivered to plaintiff, as guardian, her note for $500, intending to charge and thereby charging said land for the payment thereof. Personal service was had on defendant Julia A., and notice by publication on her husband. Notice lis pendens was filed on the day the suit was commenced, and was duly recorded. The court found the facts to be as charged in the petition, and a decree was entered accordingly. Under a sale on execution upon this decree plaintiff purchased the land, and claims title under the sheriff's deed, which was read in evidence. Plaintiff offered evidence of damages, rents, and profits, and rested. Defendant then read in evidence a deed from Newton Wilson and wife conveying the lot in controversy to John T. Hopkins, dated August 28, 1884, filed August 28, 1884. Also note and all the papers in an attachment suit brought January 7, 1885, by defendant Berolzheimer against John T. Hopkins, in which the lot in controversy was attached, judgment obtained, and sale of lot under same. Sheriff's deed also read conveying lot to Berolzheimer; sale under this attachment regular; deed dated April 7, 1886. Defendant next read the record of a deed from S. C. Gunby and wife to Julia A. Wilson, dated July 27, 1883, and filed August 20, 1883. This is a warranty deed in usual form, conveying simply a legal title, with no statement in reference to a separate estate. Then defendant read a deed from Julia Wilson and husband to Samuel Kennerly, dated January 3, 1885, filed April 9, 1885. This was a quitclaim deed, and contained the following recital. "It is hereby understood by and between the parties hereto that this deed is made subject to a certain deed of trust in favor of George Hope given by Julia A. Wilson in August, 1883, to secure the payment of five hundred dollars." Then defendant read deed from Samuel Kennerly and wife to Berolzheimer, dated April 7, 1886, filed April 12, 1886. In rebuttal plaintiff offered to read the record of a deed from J. T. Hopkins and wife to Julia A. Wilson, dated December 25, 1884, and filed the same day. This record was objected to as evidence for the reason that the deed did not appear to have been acknowledged. To prove the execution of the deed plaintiff called L. A. Hayward, who testified that he was deputy-recorder and knew the handwriting of J. T. Hopkins. When asked if he knew of the filing of a deed by him on December 25, 1884, from him and wife to Julia A. Wilson, he answered: "I think the deed came by mail. I recorded the deed. My recollection is it was his handwriting and signed by him; that he had made search for the original deed and could not find it; might have sent it to Shelbina to a man named Jordon. In my judgment this is the deed. Signature to deed, my recollection is, was Hopkins'." Upon this proof the court permitted the record to be read as a copy of a lost deed. This deed contained the same recital as the deed to Kennerly. Plaintiff proved that at the date of the note (August 17, 1883,) Julia A. Wilson was in possession of the property.

1. Defendant contends that the only title to the lot shown to have been held by Julia A. Wilson at the time the note sued upon was executed by her was a simple legal estate, which could not be charged for debts contracted by her, and for that reason the note was void, and the court never had jurisdiction over the subject matter of the suit, and the decree, sale, and deed were all void, and no title to the lot passed to plaintiff thereunder. There can be no doubt that when it appears from the whole record that the court had no jurisdiction over the person or subject-matter the judgment is void, and will be so treated in a collateral proceeding. Adams v. Cowles, 95 Mo. 507, 8 S. W. Rep. 711; Brown v. Woody, 64 Mo. 548; Higgins v. Peltzer, 49 Mo. 155. It is not contended in this case that the court had no jurisdiction of the person of Mrs. Wilson or her husband. The record shows that the former was personally served, and the latter was notified by publication. The inquiry is therefore narrowed down to the question whether the court had jurisdiction of the subject-matter of the suit and to decree a sale of the property. The circuit courts of this state have all general common-law jurisdiction which is not conferred upon another court or tribunal. It has, therefore, jurisdiction to hear and determine all questions which affect the rights and liabilities of a married woman with respect to charging her separate estate upon her contracts. The general equity jurisdiction in such suits is not questioned, but the contention is that the court had no jurisdiction of the subject-matter of this particular suit for the reason, as stated, that the estate which the decree attempted to charge was not the separate estate in equity of the married woman. The subject-matter of a suit, when reference is made to questions of jurisdiction, is defined to mean "the nature of the cause of action or the relief sought." Cooper v. Reynolds, 10 Wall 316. "Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one adjudged belongs; second, the proper parties must be present; and, third, the point decided must be, in substance and effect, within the issue." Munday v. Vail, 34 N. J. Law, 422. A court may be said to have jurisdiction of the subject-matter of a suit when it has the right to proceed to determine the controversy or question in issue between...