Lindsay v. Evans

• Decision Date: 05 October 1943
• Docket Number: No. 26345.,26345.
• Citation: Lindsay v. Evans, 174 S.W.2d 390 (Mo. App. 1943)
• Parties: LINDSAY v. EVANS.
• Court: Missouri Court of Appeals

174 S.W.2d 390

LINDSAY v. EVANS.

No. 26345.

St. Louis Court of Appeals. Missouri.

October 5, 1943.

Rehearing Denied October 22, 1943.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be reported in State Reports."

Action by Charlotte C. Lindsay against Anne M. Evans for damages for alleged malicious prosecution of certain civil proceedings. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Francis R. Stout, of St. Louis, for appellant.

Hall & Todd, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for the alleged malicious prosecution of certain civil proceedings.

The plaintiff is Charlotte C. Lindsay, the owner of a piece of real estate known as 6900 Wise Avenue in the City of St. Louis, while the defendant is Anne M. Evans, an attorney at law, who was the purchaser of the real estate at an execution sale.

Plaintiff acquired the property in 1929, subject to the lien of a judgment for special benefits of $7.50, which judgment had been theretofore rendered by the Circuit Court of the City of St. Louis in a proceeding instituted by the city in 1922 for the improvement of Clayton Avenue in said city.

In 1935 the city had special execution issued upon the judgment; and on September 14, 1935, the sheriff sold the lot to defendant at public sale for the sum of $85, and in due course executed to her a sheriff's deed to the property, which was recorded on October 5, 1935.

Plaintiff was a nonresident of the city, and had no actual knowledge, either of the assessment of special benefits against her property, or of the fact that the property had been sold to satisfy the special judgment. As a matter of fact, on September 19, 1935, five days after the property had been sold, plaintiff paid the general taxes assessed in her name against the property for 1932, 1933, and 1934, amounting, with penalties, to $181.73, without any actual knowledge of what had previously transpired.

On March 7, 1936, after the time had passed within which plaintiff might have filed a motion to set the sale aside, defendant sold the property, without substantial consideration, to Henry Ernst and Sarah Ernst, his wife, and executed to them a warranty deed, which was recorded on March 9, 1936.

At the same time, and as a part of the transaction, Mr. and Mrs. Ernst executed two deeds of trust upon the property to secure two notes of one J. E. Hanger, defendant's straw party, the one a note for $3,000, and the other a note for $600. The trustee in each instance was J. E. Hanger's daughter, B. Hanger, who later married a man named Jones, and whose name figures prominently in the subsequent proceedings out of which this action for malicious prosecution has arisen.

Following the completion of such transaction, defendant called at the office of the real estate company which had been acting as plaintiff's rental agent; presented the sheriff's deed which had been executed to her; and, purporting to act as attorney for Mr. and Mrs. Ernst, formally demanded possession of the property. It incidentally appears that the realty company's report of such demand to plaintiff constituted the first actual information she had that her property had been sold at the execution sale.

Being thus advised of what had taken place, plaintiff brought a suit in the Circuit Court of the City of St. Louis to set the sale aside; to cancel the sheriff's deed made pursuant to the sale; to cancel the deed subsequently executed by defendant to Mr. and Mrs. Ernst; to cancel the two deeds of trust executed by Mr. and Mrs. Ernst in connection with the transaction entered into between them and defendant; to quiet title in plaintiff; and for certain additional relief contingent upon the outcome of the principal controversy between the parties.

The defendants to such suit were the City of St. Louis, which had instituted the original improvement proceeding and had sued out the execution under which the property had been sold by the sheriff; Miss Evans (the defendant herein), the purchaser at the execution sale; Mr. and Mrs. Ernst, who subsequently purchased the property from Miss Evans and executed the two deeds of trust thereon; J. E. Hanger, the maker of the two notes secured by the deeds of trust; and B. Hanger, the trustee in the deeds of trust. The latter was apparently brought into the case by an amended petition; and while she was personally served with process, there is a question as to whether the case was at issue as to her at the time the trial was had and the judgment rendered.

In the defense of such suit, Miss Evans, being an attorney at law, represented herself and all the other defendants except the City of St. Louis.

After certain preliminary proceedings, the case was brought to trial; and in due course the court entered a decree in favor of plaintiff, and against all the defendants, conditioned upon the plaintiff doing equity.

Following the entry of such decree, all of the defendants, except B. Hanger, took an appeal to the Supreme Court, wherein, on February 21, 1940, a divisional opinion was handed down affirming the decree, but remanding the cause with specific directions to the circuit court to modify the decree and base the relief granted plaintiff upon the issue of inadequacy of price and the actions of defendants Evans, J. E. Hanger, and the Ernsts with respect to the several conveyances noted. Lindsay v. City of St. Louis, 345 Mo. 1141, 139 S. W.2d 906. Motions for rehearing and to transfer to banc were overruled on May 4, 1940; on May 23, 1940, the Supreme Court's mandate was received by the circuit court; and on December 2, 1940, the decree was appropriately modified in conformity with the mandate of the Supreme Court.

As finally entered, the decree recited, among other things, that the property purchased by Miss Evans for $85 was worth $5,000; that her subsequent conveyance of the property to Mr. and Mrs. Ernst was effected without any substantial consideration for the purpose of placing a cloud upon the title; that neither the deed to Mr. and Mrs. Ernst, nor the two deeds of trust upon the property, were bona fide conveyances; that Miss Evans had at all times had the sole claim to both the property and the deeds of trust; that Miss Evans had been the only real party in interest claiming title to the property under the sheriff's deed; that Mr. and Mrs. Ernst, J. E. Hanger, and B. Hanger, trustee, had all acted as straw parties for Miss Evans, and at no time had had any real interest in the property or right therein except a mere naked legal right or title for the use of Miss Evans; and that the latter had paid an unconscionably low price for the property, and had sought to deprive plaintiff of her property by unfair methods and for an unconscionably low price, contrary to equity and good conscience. The court thereupon decreed that plaintiff was the owner of the property, and that the sheriff's sale and deed, as well as Miss Evans' subsequent deed and the two deeds of trust, should all be voided, canceled, and for naught held, with Miss Evans made liable to plaintiff for a fixed rental value of the property, less certain credits, until such time as she should take the proper steps to conform with the decree.

Upon the modification of the decree in conformity with the mandate of the Supreme Court, Miss Evans, on February 1, 1941, acting as "attorney for defendants", applied for and was allowed a second appeal to the Supreme Court, which appeal was thereafter dismissed on motion of the appellants themselves on August 6, 1941. Actually Miss Evans was acting only for herself and the other individual defendants to the suit, since notwithstanding her identification of herself as "attorney for defendants" it does not appear that she represented the City of St. Louis, or that it in anywise participated in the second appeal.

On May 20, 1940, after the decision of Lindsay v. City of St. Louis in the Supreme Court, and after the motions for rehearing and to transfer to banc had been overruled, Miss Evans, purporting to act as attorney for B. Hanger (who had meanwhile become B. Hanger Jones by virtue of her marriage), instituted a suit against Mrs. Lindsay (Jones v. Lindsay) in the United States District Court for the Eastern District of Missouri, in which she prayed judgment for the amount of the two deeds of trust, along with the amount allegedly expended to protect the title to the premises as recited in the deeds of trust. Relying on diversity of citizenship as the basis of federal jurisdiction (B. Hanger Jones having become a resident of California, while Mrs. Lindsay was a resident of Missouri), the gist of the cause of action asserted was that B. Hanger Jones had actually never had a hearing in the state court in the case of Lindsay v. City of St. Louis, the case having allegedly not been brought to issue as to her; and that inasmuch as the Missouri Supreme Court had upheld the action of the circuit court, the property in question was about to be taken away from her without due process of law within the contemplation of the federal constitution. In other words, the manifest purport of Jones v. Lindsay in the United States District Court was to disregard and avoid the prior judgment and decision of the state court in so far as it purported to be an adjudication of the rights of B. Hanger or B. Hanger Jones, and to have the federal court in effect declare the validity of the two deeds of trust which had been previously canceled by the state court.

Upon the institution of Jones v. Lindsay in the United States District Court, Mrs. Lindsay filed a motion to have the case dismissed for want of jurisdiction, which motion was sustained on August 5, 1940, and an order entered dismissing the petition. On August 8, 1940, B. Hanger Jones filed a motion to set aside the order dismissing her petition, which motion was in turn overruled by the court on October 7, 1940. Not content...