Jones v. Arnold

Decision Date09 May 1949
Docket Number41009
Citation221 S.W.2d 187,359 Mo. 161
PartiesJay W. Jones and Flossie R. Jones, Appellants, v. Charles Arnold, Fernita Scott, Francis Arnold, Norman Arnold, Preston Arnold and Ronald Arnold, Respondents
CourtMissouri Supreme Court

Motion for Rehearing or to Modify Opinion Overruled June 13, 1949.

Appeal from Cedar Circuit Court; Hon. O. O. Brown, Judge.

Affirmed.

SYLLABUS

In 1915 deeds were executed in favor of "Frank Arnold and his bodily heirs". In 1925 Frank Arnold purported to convey the fee into plaintiffs' chain of title. In 1927 a suit was filed against the minor children of Frank Arnold resulting in a decree upon service by publication reforming the 1915 deeds so as to convey a fee to Frank Arnold. Plaintiffs sue to quiet title against the descendants of Frank Arnold, setting up the 1927 decree in one count and seeking reformation of the 1915 deeds in a second count, and defendants by cross-claim attack the 1927 decree for fraud and set up their titles as contingent remaindermen. The decree of the trial court is affirmed, setting aside the 1927 decree on the ground of fraud in procurement, refusing to reform the 1915 deeds and determining and quieting the titles of defendants.

Boyd Ewing for appellants Jay W. Jones and Flossie R. Jones; Ewing, Ewing & Ewing of counsel.

(1) The 1927 judgment reforming the two 1915 deeds, by substituting the words "heirs and assigns" for the words "bodily heirs" is valid and for the right party. Sec. 1196, R.S. 1919; Warren v. Manwaring, 173 Mo. 21; 16 Am. Jur., sec. 173; Petty v. Griffith, 165 S.W.2d 412. (2) There is no evidence in the record which, if true, could support the finding of the trial court in the instant cause that the 1927 judgment was procured by fraud, nor its action setting the judgment aside on such ground. Lieber v. Lieber, 239 Mo. 1; Story on Am. Jur. (2 Ed.), sec. 1582; Zehnder v. Stark, 248 Mo. 39, 154 S.W. 92; Ray County Savings Bank v. Hutton, 224 Mo. 42, 123 S.W. 47; Irvine v. Leyh, 102 Mo. 200, 14 S.W. 715; Smith v. Sims, 77 Mo. 269; Brown v. Bibb, 201 S.W.2d 370. (3) If there had been any evidence in the record of the 1927 proceeding to have sustained the finding that there was no mistake in the 1915 deeds and against Montgomery, mesne grantor of plaintiffs herein, nevertheless such 1927 judment became absolute under Secs. 1247 and 1249, R.S. 1939, long prior to the institution of the instant cause, and is not voidable now. Secs. 1247, 1249, R.S. 1939; Lieber v. Lieber, supra, l.c. 34; Boas v. Cliffdale Land & Farm Co., 193 S.W. 806; Gill on Missouri Titles, sec. 1373; Simes on Law of Future Interests, secs. 651-2. (4) Under the doctrine of virtual representation, the 1927 judgment is binding and operative upon defendants Norman Arnold, Preston Arnold and Ronald Arnold as well as any other person born after the date of such judgment who may at the death of Frank Arnold qualify as members of the class of his bodily heirs. Simes on Future Interests, secs. 672-3, 675, 634; Brown v. Bibb, supra. (5) There is no competent or material evidence to support the finding of the trial court that the 1915 deeds were not drafted through mistake and that it was the intent of Sarah E. Arnold to convey the land to Frank Arnold and his bodily heirs. Lieber v. Lieber, supra; Petty v. Griffith, supra.

Joe W. Collins for respondents Charles Arnold, Fernita Scott and Francis Arnold, and Guardian ad Litem for Norman Arnold, Preston Arnold and Ronald Arnold, minors.

(1) The burden of proof rests on the plaintiffs to show by clear, cogent and convincing evidence that the scrivener who drew the deeds from Sarah E. Arnold to Frank Arnold and his bodily heirs inserted the words bodily heirs through mistake contrary to the intention of Sarah E. Arnold at the time she drew the deeds. Farr v. Lineberger, 207 S.W.2d 455; Schneider v. Johnson, 207 S.W.2d 461; Schnabel v. Schnabel, 12 Mo.App. 587; Botto v. James, 209 S.W.2d 256; Niehaus v. Madden, 155 S.W.2d 141. (2) A deed takes effect upon delivery and the so-called correction deeds and affidavit of Sarah E. Arnold could have no effect on the title she had previously conveyed to Frank Arnold and his bodily heirs. Parsons v. Parsons, 45 Mo. 265; Doherty v. Noble, 138 Mo. 25. (3) Plaintiffs opened up the 1927 judgment. There was no real contest in the trial or hearing of the 1927 suit. In such cases a new suit may be sustained to set aside and annul the former judgment or decree and open the case for a new and fair hearing. Overton v. Overton, 37 S.W.2d l.c. 568, 327 Mo. 530; Lieber v. Lieber, 239 Mo. l.c. 44; U.S. v. Throckmorton, 98 U.S. 61; Kennard v. Wiggins, 349 Mo., l.c. 297, 160 S.W.2d 706; Henrioid v. Neusbaumer, 69 Mo. 96; Wonderly v. Lafayette Co., 150 Mo. l.c. 654; Collins v. Trotter, 81 Mo. 275; Irvine v. Leyh, 102 Mo. 207; Vendt v. Duenke, 210 S.W.2d l.c. 94; Castorina v. Herrmann, 104 S.W.2d 297; Black v. Epstein, 221 Mo. 286.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION
DALTON

Action in two counts: (1) To quiet and determine title to described real estate in Cedar county on the ground that title had theretofore been quieted in plaintiffs' predecessor in title and that the claims of the defendants were barred by a prior judgment (which judgment purported to reform the deeds under which the defendants claim and further determined title against them); and (2) to reform the deeds under which defendants claim as contingent remaindermen subject to the life estate of Frank Arnold (so that the deeds will convey the fee to Arnold) and to quiet the title against defendants. Defendants by answer and cross action seek to establish their claimed interest as contingent remaindermen under the mentioned deeds and to have vacated and set aside, for alleged fraud in its procurement, the judgment relied upon by plaintiffs. The trial court vacated and set aside the prior judgment, refused to reform the deeds and quieted the title as claimed by defendants. Plaintiffs have appealed and contend there is no evidence in the record to support the findings and judgment of the court.

The evidence tends to show that J. H. Arnold died intestate, in 1914, seized and possessed of the described real estate and other lands. He was survived by his widow Sarah E. Arnold and three adult children, Emily Collins, Allie Mae Arnold and Frank Arnold. Defendants Charles Arnold, Fernita Scott and Francis Arnold are the children of Frank Arnold and defendants Norman Arnold, Preston and Ronald Arnold are his grandchildren and sons of Charles Arnold.

In May 1915, pursuant to an oral agreement entered into between the widow and three children of J. H. Arnold and for reasons that need not here be stated, the three children conveyed to their mother, Sarah E. Arnold, all of their interests in the real estate owned by their father at the time of his death and she immediately thereafter, by two separate deeds, conveyed to "Frank Arnold and his bodily heirs" the real estate here in question. In acknowledging the deed to one tract she expressly assigned her right of dower and in the deed to the other tract she reserved for herself a life estate and her acknowledgment shows "Dower not assigned." Other conveyances were made to the other heirs. All deeds were prepared by and acknowledged before the same party and were recorded on the same date pursuant to the same agreement. The consideration stated in the deeds was $ 1.00 and "love and affection." The detailed provisions of the several deeds conformed to the agreement of the parties and correctly expressed the intention of the grantor and grantees when executed and delivered.

Thereafter, Frank Arnold and wife, as owners in fee simple, executed two deeds of trust on the property here in question to the Duvall-Percival Trust Company to secure certain notes therein described. The deeds of trust have been satisfied of record. On January 9, 1922, Sarah E. Arnold for a recited consideration of $ 1.00 executed and delivered to Frank Arnold a quitclaim deed to one of his two tracts of land. In this deed she recited that the deed was "made in release of and satisfaction for" a prior warranty deed dated May 17, 1915. On December 18, 1924, Sarah E. Arnold for a recited consideration of $ 1.00 executed a quitclaim deed to Frank Arnold covering the other tract he had acquired from her.

On January 20, 1925, Sarah E. Arnold by warranty deed, for a consideration of $ 1.00 purported to convey to Frank Arnold the fee simple title to one of the two tracts of real estate previously conveyed. This deed recited that it was made for the purpose of correcting the original warranty deed of Sarah E. Arnold "and to carry out the real purpose and intent of said deed and also to convey the life estate retained in said conveyance for it was the intention and so understood by all parties in interest that said grantee should have fee simple title subject only to the life estate of the grantor, and by this conveyance she seeks to carry out the full original intent and purpose of same and also at this time to relinquish all rights and establish in said Frank Arnold a fee simple title in the above described land."

On July 25, 1925, Frank Arnold and wife for "one dollar and other valuable consideration" by warranty deed purported to convey the fee simple title to all of the described real estate to T. R. Montgomery of Craig County, Oklahoma, "subject to mortgage of $ 4800 which grantee agrees to assume and pay."

In 1927, Frank Arnold and his three children were residing in Oklahoma. Montgomery, who lived about twenty miles away visited them often. The several Arnold children were between 14 and 18 years of age. Montgomery told Frank Arnold there was a defect in the title to the lands acquired from him; that it was necessary to...

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