Howard v. Scott

Citation125 S.W. 1158,225 Mo. 685
PartiesHOWARD v. SCOTT et al.
Decision Date01 March 1910
CourtUnited States State Supreme Court of Missouri

A judgment, setting aside a sale under a deed of trust, and reinvesting in plaintiff therein a half interest in the land, freed from the deed of trust, was rendered on constructive service of process. Plaintiff concealed from the federal court, in voluntary bankruptcy proceedings, that he had any interest in the land, and he perpetrated a fraud on the court rendering the judgment by bringing the suit in his own name pending the bankruptcy proceedings, and by concealing from the court the existence of the bankruptcy proceedings. In violation of his duty to disclose to the trustee in bankruptcy his knowledge of false claims, he permitted defendant in the suit to obtain an allowance for an unpaid balance due under the deed of trust, and he thereby tricked defendant into assuming that plaintiff recognized the validity of the sale. Held, that plaintiff was guilty of perpetrating fraud sufficient to authorize the setting aside of the judgment.

7. JUDGMENT (§ 466) — SUIT TO SET ASIDE — RELIEF.

Where, in a suit to set aside a judgment, setting aside a sale under a deed of trust, the issues were not framed on the theory that the deed of trust should be re-established, but involved the question whether the judgment had been procured through fraud at a time the title to the interest of plaintiff in the suit was in his trustee in bankruptcy, a judgment granting relief could not reinstate the lien of the deed of trust.

8. JUDGMENT (§ 251) — CONFORMITY TO ISSUES.

A judgment must be within, and not broader than, the pleadings.

9. VENDOR AND PURCHASER (§ 244) — BONA FIDE PURCHASER — NOTICE.

Evidence held to show that an attorney obtaining a conveyance from his client was not an innocent purchaser without notice.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by F. P. Howard against Adam Scott and another. From a judgment granting relief, both parties appeal. Affirmed on defendant's appeal, and reversed and remanded on plaintiff's appeal.

Thomas & Hackney, for plaintiff. Mooneyham & McCawley, E. O. Brown, and H. W. Currey, for defendants.

LAMM, P. J.

From a decree in the Jasper circuit court affecting land, both parties appealed to the Kansas City Court of Appeals; the appeals coming to this court from that on the theory that title to real estate was involved in the judgment.

In a pinch, in court or out, much is seen through a keyhole, or, put otherwise, some one illuminating fact often throws a gleam of light into the obscure corners of litigation to aid the eye of a chancellor, precisely as a flash of lightning on a dark night reveals the landscape to a bewildered traveler. The wise Latin hath it that every living thing comes from a germ ("Omne vivum ex ovo")—which, broadly, may be put into: Every lawsuit is hatched from an egg or grows from a seed. If such commonplace generalities are allowable as a foreword to this case, involving charges and countercharges of perjury and fraud, they may be rounded with a bit of record to find the egg of the case, viz.:

One Smith of Oronogo met defendant Scott at the Joplin railroad station in January, 1904; Scott being then in the thralls and throes of bankruptcy on his own petition. Now Smith was a real estate agent, who, under this record, must have had an alert eye, if not a receptive palm, for a dollar. Did opportunity in that behalf knock at Smith's door? Then, either the latchstring hung out for a "Come in," or "Open, Smith, at once." Scott had fished in the troubled waters of speculation in mines and mining, at some time meeting up with Howard. The latter had journeyed from Decatur, Ill., and was sojourning in Jasper county to mend his fortune. Betimes it fell out that the twain, Howard and Scott, became tenants in common in the land in suit, a farm of 137 acres hard by said Oronogo; further, that said Smith once had charge of it as agent for the two. So, meeting Scott by chance on a winter's day, he took time by the forelock, and, assuming the title to the farm stood in the two, accosted Scott thus (quoting): "Do you want to sell—do you and Howard? I got a buyer." Then this (still quoting from Smith's evidence): "He says, `That damned rascal stole that from me,' and I says, `Who?' and he says, `Howard,' and I says: `There is a way to bring thieves to justice if that is the way about it. One partner can't do another that way'—and he says, `How will I help myself?' and I says, `Give me half I get out of it, and I will show you how to help yourself.'" Presently Scott, on January 29, 1904, so moved thereunto by Smith, contracts in writing for Smith to employ attorneys, bring a lawsuit, and "to do and perform all things necessary" to recover Scott's land—going halves in the gain. Presently Smith, pursuant (being no "licensed lawyer"), contracts with Mr. Mooneyham (who is one) to divide his half with Mooneyham, and then the mill of justice is set grinding, and no stone is left unturned to "show" Scott as per contract. So much as introductory.

But to begin at the beginning to unravel the tangled threads of an uncommonly complicated record. In 1897 or thereabouts Scott, with one Maris and plaintiff, Howard, were partners in developing, exploiting, and working mines and mining properties in Jasper county; only one, the "Little Nugget," or "Sacred Nugget" becoming a paying proposition. We deem the testimony, of which there is a great deal, relating to the various contracts anent the Little Nugget and the other mines, the outlays and incomes, profits and losses thereof, and the ultimate sale of the Little Nugget, as throwing little or no light on the case to be decided. This testimony will therefore be omitted. Suffice to say that at a certain time the Little Nugget was sold, and on winding up the mining ventures and the partnership of Scott, Howard, and Maris, it resulted that Scott owed Howard $2,816.28. There was a dispute between them. They fell out and went to law. Their respective partnership claims and counterclaims were threshed over before a referee. Presently, in 1901, it was found that Scott owed Howard the above amount, afterwards merged in judgment, which, on appeal to the Kansas City Court of Appeals, was affirmed (98 Mo. App. 509, 72 S. W. 709). That suit ran for three or four years, and will be called "suit A." Afterwards, in another suit (the suit brought under the Smith and Scott contract hereinbefore mentioned), it was claimed by Scott that Howard owed him in and about these mining transactions a certain sum of money which, when account was taken thereof, resulted in showing that, on a fair settlement between them, Scott had furnished his entire pro rata share in buying the land in dispute. But the testimony fails to show such fact, and we dismiss the matter by saying that the partnership accounts were litigated, and Scott was adjudged indebted to Howard in the judgment in suit A.

Going back a little. In January, 1898. Scott took an option on the land in suit (137 acres), viz., all of the S. E. ¼ of section 30, township 29, range 32, in ...

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