Hudson v. Wright

• Decision Date: 29 May 1907
• Citation: 204 Mo. 412,103 S.W. 8
• Parties: HUDSON v. WRIGHT et al.
• Court: Missouri Supreme Court

103 S.W. 8

204 Mo. 412

HUDSON v. WRIGHT et al.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. QUIETING TITLE — JURISDICTION — STATUTORY REMEDY—CONCURRENT JURISDICTION OF EQUITY.

While Laws 1897, p. 74, now Rev. St. 1899, § 650 [Ann. St. 1906, p. 667], providing a remedy to determine interests and quiet title, whether legal or equitable, repealed by implication what is now Rev. St. 1899, § 647 [Ann. St. 1906, p. 665], which provided a remedy in such cases, it did not oust the jurisdiction of courts of equity to remove clouds from titles, but the chancery and statutory jurisdictions are concurrent.

2. ACTION—JOINDER UNDER CODES—PARTIES AND INTERESTS INVOLVED—QUIETING TITLE.

Where a deed was taken in the name of a husband and wife, and thereafter the wife who claimed the entire interest in the land brought an action against her husband and one who bought his interest at execution sale to remove the clouds from her title, there is in a legal sense no misjoinder either of parties or subject-matter.

3. PARTIES—PLEADING—DEFECTS OF PETITION —MODE OF RAISING OBJECTION.

Under Rev. St. 1899, § 598 [Ann. St. 1906, p. 624], providing that when it appears on the face of a petition that there is a defect of

parties, or if several causes of action have been improperly united, the defendant may demur, and section 602 providing that when these defects do not appear on the face of the petition the objection may be taken by answer, and that if no objection be taken on these grounds by demurrer or answer the defendant will be deemed to have waived them, where misjoinder of parties defendant or of causes of action appear on the face of the petition, an objection on account thereof after answer comes too late.

4. EQUITY—HEARING—OFFICE OF INSTRUCTIONS.

An assignment of error in refusing requested declarations of law in an equity action is without merit, since instructions fill no office in equity practice.

5. EXECUTION — TRANSCRIPT OF JUSTICE'S JUDGMENT FILED IN SUPERIOR COURT—VALIDITY OF ORIGINAL JUDGMENT.

Where there was a citation for renewal of a justice's judgment, but defendant made no appearance thereto, and a transcript of the revived judgment was filed in the circuit court, an execution and sheriff's deed thereon is void unless the original judgment is valid, since a citation to revive a justice's judgment is not a new suit, but merely ancillary to the old proceedings.

6. SAME — SALES — FAILURE TO NOTIFY OF RIGHT TO SELECT EXEMPTION.

A levy and sale of a defendant's interest in land is not rendered void by failure to notify him of his right to select exempt property, whatever right of action he may have for injury incurred thereby.

7. SAME—ACTION TO SET ASIDE—LACHES.

Where a wife asserts her ownership of the entire interest in property, the deed to which was taken in the name of herself and husband, as soon as one who purchased the husband's alleged interest at execution sale sought to disturb her rights, she was not guilty of laches, since the doctrine of laches will not be applied with nice particularity to dealings between husband and wife.

8. ESTOPPEL—CLOTHING ANOTHER WITH APPARENT TITLE—RELYING ON APPARENT TITLE.

Where a judgment creditor did not change his condition upon information from a wife as to the character of her possession or claim to land, nor obtain his judgment in reliance on any record title allowed to remain in the husband, she is not estopped to claim her full interest in the land.

9. LOST INSTRUMENTS — ACTIONS—DEFENSE— FAILURE TO FILE AFFIDAVIT OF LOSS.

A judgment by a justice on a lost note, where there was no affidavit filed as to its loss, as required by Rev. St. 1899, § 3854 [Ann. St. 1906, p. 2140], is without jurisdiction and void, since such an action is a special proceeding taking the place of an action in chancery, and must strictly comply with the law.

10. TRUSTS—RESULTING TRUST—PROPERTY OF WIFE—RIGHT OF HUSBAND'S CREDITORS.

Under Rev. St. 1899, § 4340 [Ann. St. 1906, p. 2382], providing that where land is paid for with the separate means of a married woman it becomes her separate property and is not liable for a husband's individual debts, where the title to land paid for out of the wife's separate means is taken in the name of the husband and wife, his legal title is subject to a resulting trust in her favor which, in the absence of fraud or estoppel, is superior to the rights of the husband's prior creditors.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Action by Sarah A. Hudson against Jubal A. Wright and another. From a judgment for plaintiff, defendant Wright appeals. Affirmed.

E. C. Hall, for appellant. W. S. Herndon, for respondent.

LAMM, J.

Sarah A. Hudson lodged her bill in equity against her husband, Jacob I., and one Jubal A. Wright, having for its object, first, to set aside a sheriff's deed dated September 14, 1902, conveying to said Wright the interest of said Jacob I. in and to a described part of the N. E. ¼ N. E. ¼ of section 4, township 56, range 32, in Clinton county; second, to vest the fee of said land in her. The decree nisi went in her favor; Hudson abiding the event of the trial, but Wright appealing here.

In substance, so far as material, the case on the pleadings is this: It is alleged that Wright sued Jacob I. Hudson in 1895 before a justice of the peace on a lost or destroyed promissory note, making and filing no affidavit of its loss or destruction. Summons issuing, service was had, an indemnifying bond was filed, Hudson made default, and in due course judgment followed for $66.70 plus costs. Not being paid, thereafter, in February, 1902, a citation issued to revive said judgment, and judgment of revival was entered for the sum of $98.35 plus costs; defendant again making default. Execution again issued, a return of nulla bona was had, and, on a transcript filed in the office of the clerk of the circuit court, a transcript execution issued and was levied upon the apparent interest of said Hudson in said land. It is further alleged that, on advertisement, a sale and sheriff's deed followed, the latter based on a bid of $20, which deed, having been duly executed, was placed of record in September, 1902. This is the deed plaintiff desired to annul to clear up her title; and, to do so, averred the judgment of the justice was void for want of jurisdiction to render it, because no affidavit of the loss or destruction of the note was made at the time of bringing the suit, or at any other time. Other grounds, claimed to show lack of jurisdiction, are alleged; but, absent proof tending to sustain them, they may be put aside. The bill averred further that plaintiff purchased the parcel of land in question in 1900 from Henry N. and Joseph S. West for $1,250, to wit, $350 paid down, and the assumption of an existing $900 mortgage; that, instead of making a deed to her alone, the deed, without her knowledge or consent, was made to defendant Hudson and plaintiff, husband and wife; that she at once went into possession of said land; and since then had paid $319 on the mortgage debt; that said payments first and last were from her sole and separate money and means, in which her husband had no right or interest; that she is the owner of said tract of land; that said Jacob I. Hudson never had any right or interest therein; and that said sheriff's deed constitutes a cloud on her title.

Defendant Hudson answered, admitting each and every allegation of his wife's bill. Further, and by way of cross-petition, he alleged that, as against all persons except plaintiff, he claimed the ownership of an interest in the land; that such interest was exempt from execution; that, notwithstanding it was so exempt, his codefendant caused a transcript execution to issue as alleged in the bill, and caused his said interest to be levied upon, advertised for sale, and conveyed to him; that he (Hudson) was the head of a family; that he owned no personal property, then or now; that said real estate was incumbered for $1,000; that it was worth less than $1,500; that his interest therein was of less value that $300; that the sheriff holding and executing the writ of execution did not notify him of that fact, and did not apprise him of his exemptions as the head of a family under sections 3158, 3159, 3162, Rev. St. 1899, as required by section 3163 [Ann. St. 1906, pp. 1794-1799], nor of his right to hold his said interest exempt, and took no steps to set off his exemptions—he (Hudson) having no notice or knowledge of the execution, levy, or sale; that, having no notice, he had no opportunity to claim his exemption, or to notify the sheriff that he claimed the same; that the judgment of the justice was void, as alleged in the bill; and, furthermore, he denied all the allegations of the separate answer of his codefendant Wright. Wright's answer denied all and singular the allegations in the bill not specifically admitted—averred that he is the owner of a half interest in the land "as tenant in common or joint tenant with the plaintiff"; that he derived his title by virtue of the sheriff's deed pleaded in the bill; that his codefendant was the owner of the "one undivided half as joint tenant with plaintiff prior to the sale and sheriff's deed," which interest passed to him by the sheriff's sale; that the Hudsons are husband and wife, and that they, having a common end in view, instituted this proceeding to defraud him (Wright) out of his interest in said land—to that end Hudson, making no defense, is aiding and abetting plaintiff; that the consideration paid for the West deed was derived from the proceeds of a sale by the Hudsons of another tract of land held under a former deed conveying it to them as joint tenants, dated in 1893; that during all times, from the first deed until this time, the title to said lands had been suffered by plaintiff to remain in that way, thereby giving her husband credit as owner; that defendant during all such...