Mahen v. Ruhr
| Decision Date | 07 April 1922 |
| Citation | 240 S.W. 164,293 Mo. 500 |
| Parties | JOSEPHINE C. MAHEN et al., Plaintiffs in Error, v. ELIZABETH RUHR, Executrix of Will of FRANK B. RUHR, EUGENE HANEBRINK, THEODORE HEMMELMANN, Jr., Trustee, RICHARD PACKLER, Cestui Que Trust, and UNKNOWN OWNER of Negotiable Notes Described in Deed of Trust |
| Court | Missouri Supreme Court |
Error to St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.
Reversed and remanded.
Taylor R. Young for plaintiff.
(1) The clerk of a court has no judicial powers, and he has no authority to issue an execution upon the mere affidavit of one of the parties to a suit that certain installments of a lawful order to pay alimony, have not been paid. The court and not the clerk must find the failure to pay, and enter a judgment for such failure, which it will not do until the party whose duty it is to comply with such order has been given an opportunity to refute the claim made in such affidavit; and such an execution is without warrant or authority of law, and a title acquired under a sale thereunder is void. State ex rel. v. Helderson, 164 Mo. 259; State ex rel. Caldwell v. Cockrell, 217 S.W. 524; R. S. 1919, sec. 1521; 23 Cyc. 837. (2) Certainly the forged deed of Josephine C. Mahen to Hanebrink did not pass any interest she had in this real estate, but it did place a cloud upon the title of plaintiffs in error. Moore v. Hutchinson, 69 Mo. 429; Douthitt v Stinson, 63 Mo. 268; Cement Company v. Gas Company, 255 Mo. 33; 2 Cyc. 181, par. 4, sub (b). (3) The deed of trust sought to be set aside is a cloud upon the title of plaintiffs in error. Sneathen v. Sneathen, 104 Mo. 201, And a court of equity is the proper forum to remove a cloud of this character. Truesdale v. McCormick, 126 Mo. 39.
WHITE C. Railey and Reeves, CC., concur.
This case comes here by writ of error from the Circuit Court of the City of St. Louis. The suit was originally filed by Joseph C. Mahen against the defendants mentioned, and afterwards Mabel Mahen and Dan Mahen, Trustee, were joined as parties plaintiff.
A second amended petition upon which the case was determined was filed in May, 1918, and the allegations of the petition, stated in an abbreviated form, are as follows: That on the twenty-ninth day of August, 1895, Joseph C. Mahen was married to one Josephine C. Mahen, and there were born of the marriage two children, Mabel Mahen, plaintiff, eighteen years of age at the time the suit was filed, and Joseph Mahen, Jr., thirteen years of age at that time; that on the sixth of August, 1906, Josephine Mahen and her said husband "acquired the title in fee, being an estate by the entirety, and came into joint possession of the following described real estate, etc. Then follows a description of the real estate.
That on the seventh day of August, 1911, Josephine Mahen filed a suit for divorce against her husband, Joseph, and Joseph filed a cross-bill, which suit remained pending until November 18, 1912, when both petition and cross-bill were dismissed.
That on the seventeenth day of July, 1912, Joseph Mahen conveyed, or attempted to convey, to Dan Mahen, Trustee, his interest in the real estate mentioned for the use and benefit of his two minor children, Mabel and Joseph, Jr.
That on the nineteenth of September, 1914, Josephine Mahen caused execution to be issued upon a supposed judgment for temporary alimony which was awarded her in the divorce suit, but that no judgment decree was in fact rendered for alimony or suit money; the execution was issued October 9, 1914, and said Josephine Mahen caused the same to be levied upon the interest of Joseph Mahen in the real estate described in the petition for the amount of said supposed judgment, $ 793, and caused the property to be sold by the sheriff on the 13th day of November, 1914, and conveyance of the supposed interest of Joseph Mahen was made by the sheriff to Eugene H. Hanebrink for the recited sum of three hundred dollars. The petition then alleges that at the date of the execution sale Frank B. Ruhr, now deceased, was the agent in charge of the business of Josephine Mahen and that he agreed with Josephine Mahen that he would buy the said real estate in the name of the plaintiff Mabel Mahen, but instead of that he made it appear that it was bought by the defendant Eugene Hanebrink, and fraudulently had the sheriff make the deed to said Hanebrink, who was then an office clerk of the said Ruhr and paid no consideration whatever for the deed made to him, and that said real estate at the time of said sale was worth about three thousand dollars; that at the time of the execution sale some time thereafter, the said Frank B. Ruhr, with design and intent to defraud the said Josephine Mahen of her interest in the estate, fraudulently devised and fabricated a general warranty deed in the the name of said Josephine Mahen as grantor, and purported to convey her interest in said land to said Eugene H. Hanebrink; that said last mentioned deed purported to be acknowledged by said Josephine Mahen, but was in fact neither signed nor acknowledged by her, nor by her authority, and that Hanebrink parted with and paid no consideration for the same.
That thereafter, on the 25th day of November, 1915, the said Ruhr caused the said Hanebrink to execute a deed of trust upon the said real estate to said Theodore Hemmelmann, as trustee, to secure to Theodore Spackler a promissory note, in the sum of seven hundred dollars due three years after date; that thereafter, further designing to defraud Josephine Mahen of her interest, said Frank Ruhr caused said notes to be negotiated through the Hemmelmann-Spackler Real Estate Company, and the same were by said company sold to some person or persons whose names are unknown to plaintiff, and that said Ruhr received the proceeds of said notes and deed of trust amounting to seven hundred dollars, and fraudulently appropriated and converted the same to his own use; that Frank B. Ruhr departed this life on the sixth day of November, 1916, and defendant Elizabeth Ruhr was duly qualified as his executrix.
The petition then alleges that Josephine C. Mahen and Joseph Mahen, when they acquired the real estate described in the petition, entered into possession of the same as their homestead and it ever since has been and remained their homestead; that at the time of the issuing of the execution and the sale thereunder the plaintiff Josephine C. Mahen was living apart from said Joseph Mahen, but immediately after the said execution and sale Josephine Mahen returned and lived on said real estate, where she has ever since lived.
The petition further alleges that Theodore Hemmelmann, Jr., as trustee, and Spackler, the said owners of the promissory notes hereinbefore described, under said deed of trust had caused the real estate to be advertised to be sold on the thirteenth day of April, 1917, and that the defendants will yet proceed to advertise and sell same unless restrained from doing so by an injunction order; that such sale would cast a cloud upon the plaintiff's title, and the damage and injury to plaintiffs resulting therefrom would be irreparable and they are without adequate remedy at law.
The petition thereupon prays that the sheriff's deed to the defendant Hanebrink be declared null and void, that the pretended deed...
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