Irvine v. Leyh
| Decision Date | 17 November 1890 |
| Citation | 14 S.W. 715,102 Mo. 200 |
| Parties | Irvine et al. v. Leyh, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.
Reversed and remanded.
Theo. Bruere for appellant.
(1) The respondents are not entitled to the relief prayed for in their petition, if appellant acted in good faith and honestly obtained the judgment sought to be set aside. Payne v O'Shea, 84 Mo. 129; McGindley v. Newton, 75 Mo. 115; Smith v. Sims, 77 Mo. 269; Acock v Acock, 57 Mo. 154; Carolus v. Koch, 72 Mo. 647; Bank v. Hughes, 10 Mo.App. 11; Lavender v Boaz, 17 Ill. 421: Zellerbach v. Allenberg, 67 Cal. 296; Freeman on Judgments [3 Ed.] secs. 489, 493. (2) The petition is fatally defective in not stating the facts constituting the alleged fraud in obtaining the judgment against respondents. The allegation that the judgment was obtained by fraudulent representations is not sufficient. McGindley v. Newton, 75 Mo. 115; Smith v. Sims, 77 Mo. 269. (3) The appellant pleads in bar to this suit section 3686, Revised Statutes, 1879, which requires respondents to file their petition for a review of said judgment within three years after said final judgment was rendered. R. S. 1879, secs. 3684, 3685, 3686; Jones v. Driskill, 94 Mo. 191. (4) Nancy Irvine was a daughter of John Howell, and one of his heirs. All the property acquired by her by deed, or gift, or devise, was on account of such heirship, and not purchased by her from him, and in equity she (or her heirs) should contribute her share to make good the covenant of warranty of her father, John Howell.
C. W. Wilson for respondents.
(1) If Nancy Irvine acquired anything from John Howell's estate she received it by devise, not by inheritance. She was not responsible on the breach of warranty in Howell's deed to Leyh. Saur v. Griffin, 67 Mo. 654; 4 Kent's Com. [11 Ed.] side p. 420. (2) A court of equity will set aside a judgment, etc., when obtained by fraud or mistake. Wright v. Barr, 53 Mo. 340; Durfee v. Moran, 57 Mo. 374; Wilson v. Broughton, 50 Mo. 17; 1 Story's Eq. [6 Ed.] sec. 166; Case v. Cunningham, 61 Mo. 434; Mayberry v. McClurg, 51 Mo. 256; Harris v. Ferrel, 38 Mo. 421; Summers v. Coleman, 80 Mo. 488, 500; Miles v. Jones, 28 Mo. 87; Edgell v. Seigerson, 20 Mo. 494; 2 Story's Eq. [6 Ed.] secs. 885-887; Marx v. Farer, 51 Mo. 69. (3) The petition, and evidence sustaining it, were sufficient. Freeman on Judgments, secs. 488-489, and cases cited; 2 Story's Eq. [6 Ed.] sec. 887; George v. Tutt, 56 Mo. 141; Johnson v. Coleman, 23 Wis. 452; Dobson v. Pearce, 12 N.Y. 165; Hayden v. Hayden, 46 Cal. 332; Munn v. Worral, 16 Barb. 228; Owen v. Ramstead, 22 Ill. 161, 162 and 167; Murphy v. Smith, 86 Mo. 333 and 334; Summers v. Coleman, 80 Mo. 500; Pomeroy v. Benton, 57 Mo. 531; 1 Story, Eq. [6 Ed.] sec. 193. (4) Section 3686, Revised Statutes, 1879, constitutes no bar to plaintiff's action. Campbell v. Garton, 29 Mo. 343; Stewart v. Caldwell, 54 Mo. 539; Harrington v. Utterback, 57 Mo. 521; Thomas v. Matthews, 51 Mo. 107; Hunter v. Hunter, 50 Mo. 161; Acock v. Acock, 57 Mo. 154, 155; 66 Mo. 30. (5) Judgment for possession was properly awarded. Baker v. St. Louis City, 75 Mo. 671.
OPINION
-- The plaintiffs, Adam, Sallie and Laura Irvine, Duff Brown and two married women and their husbands brought this suit against Ferdinand Leyh to set aside a judgment rendered in an attachment suit, and to cancel a sheriff's deed based upon the judgment, conveying to Leyh fifty-two acres of land in St. Charles county.
The trial resulted in a decree for plaintiffs. There is a count in ejectment, but it need not be considered, as the case turns upon the equity branch.
Leyh commenced the suit by attachment against the present plaintiffs in the St. Charles circuit court on August 10, 1875, and attached the fifty-two acres of land now in question. In his petition he stated that John Howell conveyed to him one hundred and three acres of land by a deed with covenants of warranty, dated June 21, 1866, for the consideration of $ 1,869; that Howell died in 1869, leaving an estate in that county which was settled and the administration closed prior to 1873; that at the last-named date he was dispossessed of part of the land which he purchased from Howell under a judgment in favor of McElhiney; that Nancy Irvine was one of the five heirs of Howell and as such inherited property, real and personal; that she died leaving the defendants (plaintiffs in this case) as her heirs, who inherited the same property from her; and he prayed for judgment for one-fifth of the damages sustained by reason of the breach of the covenants in the deed from Howell to him.
The defendants in that case, plaintiffs here, were non-residents, one residing in Arkansas and the others in Texas. They were notified by newspaper publication pursuant to an order of court, made after a non est return; but they had no actual notice of the suit. Judgment by default was entered on September 15, 1876, for $ 155.75, under which the land was sold, and Leyh became the purchaser and received a deed in 1877.
The plaintiffs commenced this suit in October, 1885. The petition sets out the facts before narrated, and alleges that the statements made in the petition in the attachment suit were false and fraudulent in this, that Nancy Irvine acquired no property from her father's estate, either by devise or inheritance, and that plaintiffs received no property from her estate which she acquired from the Howell estate. It is then alleged that defendant appeared in court, in the further prosecution of his attachment suit, and presented his petition to the court and falsely and fraudulently represented and stated that plaintiffs were owners of real and personal property which they inherited from their mother, and which she had inherited from her father, John Howell; that by means of said false and fraudulent allegations in his petition, and, by means of said false and fraudulent representations and statements to the court, the said Leyh procured the judgment.
We here notice the contention made by the defendant Leyh, that this suit is barred by section 3686 of the Revised Statutes of 1879. That section and the preceding and succeeding sections provide for a review where the defendant is notified by publication only and does not appear to the action. The petition for review must be filed within three years after final judgment, and, if not filed within that time, the judgment stands absolute. To obtain such review it is not necessary to show fraud in procuring the judgment, but it will be sufficient to show that the petition, upon which the judgment was procured, is untrue in some material matter, or that the party asking the review has and had a good defense. The plaintiffs here do not ask a review under the statute. They seek to set aside the attachment judgment because procured by fraud. Courts of equity have an inherent power to set aside judgments obtained by fraud, and that power is not taken away by the statute providing for a review in the cases before mentioned. This suit is not founded on the statute, and hence section 3686 constitutes no bar.
The important question here is, whether the plaintiffs have made out a case entitling them to equitable relief against the judgment and deed based thereon.
The proof produced by the plaintiffs, besides showing that they were non-residents and had no actual notice of the attachment suit, shows that John Howell conveyed the fifty-two acres of land in question to his daughter, Nancy Irvine, by a deed dated the twenty-fifth of October, 1865, which was about one year prior to the date of the deed from Howell to Leyh, containing the covenants upon which the latter founded his attachment suit. John Howell died in 1869, leaving a will by which he gave to his daughter, Nancy Irvine, $ 500, to a son a specified eighty acres of land, and he then provides that his personal property shall be divided between his five children. Nancy Irvine died in the same year, leaving the plaintiffs as her heirs. Malinda Moore, who was a daughter of John Howell, administered upon the Howell estate. At her final settlement made in 1872, the probate court ordered her to pay to the unknown heirs of Nancy Irvine $ 500, special legacy, and also $ 179 as their distributive share. There is no specific evidence as to whether these amounts were or were not paid to the plaintiffs. The evidence of the plaintiffs, which was given in general terms by way of depositions, is, that their mother received nothing from the Howell estate, either by devise or descent; that they received nothing from her estate, save the land in suit which their mother acquired from her father by deed; and that they knew nothing about the attachment suit until about eighteen months before they commenced this suit. The evidence concerning rents and profits shows that the land in suit was timbered land when Leyh purchased it in 1877; that in a year or so thereafter he fenced part of it, and from thence on cleared up portions of it; that it was worth $ 18 per acre in its unimproved state, and is now worth $ 25 to $ 30 per acre. This, in substance, is all the evidence produced by the plaintiff in chief.
The defendant testified that he thought the matters stated in his petition in the attachment suit were true, and that he brought that suit by the advice of his attorney. He says: Howell wanted to sell me the whole land, including this, but I thought it was too much. He told me he willed both pieces, the one I bought and the one in controversy, to his daughter in Texas. He states further that, when he brought the attachment suit, which was in 1875, that his attorney examined the papers in the...
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