Marley v. Norman's Land & Mfg. Co.

• Decision Date: 03 June 1921
• Docket Number: No. 21514.,No. 21513.,21513.,21514.
• Citation: 289 Mo. 221,232 S.W. 704
• Court: Missouri Supreme Court
• Parties: MARLEY v. NORMAN'S LAND & MFG. CO. (two cases).

232 S.W. 704

289 Mo. 221

MARLEY v. NORMAN'S LAND & MFG. CO. (two cases).

No. 21513.

No. 21514.

Supreme Court of Missouri, Division No. 1.

June 3, 1921.

Motion for Rehearing Denied July 11, 1921.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by Sophia Marley against the Norman's Land & Manufacturing Company to set aside a judgment, in so far as it quieted title in defendant, to the land claimed by plaintiff, in which action the defendant prayed that the court adjudicate the title to the land in controversy. From a judgment setting aside the former judgment, and decreeing title to one-half of the tract in controversy in each of the parties, both parties appeal. Reversed and remanded, with directions to enter judgment for plaintiff for all of the land involved.

Oliver & Oliver, of Cape Girardeau, and Gallivan & Finch, of New Madrid, for plaintiff.

J. L. Fort, of Dexter, and B. C. Hardesty, of Cape Girardeau, for defendant.

GRAVES, J.

Plaintiff's action is one to set aside a judgment of the circuit court of Stoddard county, Mo., in so far as such judgment effects James Marley and the land involved in this suit. The judgment sought to be so canceled was one entered on the 22d day of September, 1910, in the case of W. W. Norman, Plaintiff, v. Jefferson Green et al. The Norman suit, supra, was an action to quiet title to 2,000 acres or more of land, including the 320 acres involved in the case now before us. It was against divers parties (including James A. Marley), if living, and against their heirs and devisees, if dead. Marley claimed to own 320 acres of land here involved, and was a party to this blanket suit, where all claimants were being jointly sued, whether they claimed an interest in the whole amount of land stated in the petition or not. This Norman suit was filed January 25, 1910, and judgment entered on September 22, 1910, as stated above. The judgment was on service by publication. The plaintiff in the present action is the mesne grantee of James A. Marley, and the defendant is the immediate grantee of W. W. Norman. The petition is in two counts, and as we gather it the first count is based upon a charge of actual fraud in the procurement of the judgment, whilst the second count might be said to be broad enough to cover constructive fraud, mistake, and deception, through which James A. Marley was prevented from defending that action.

In 1905 James A. Marley placed of record in Stoddard county, Mo., a deed which purported to convey to him the land in suit. In 1906 W. W. Norman brought a suit against Marley to quiet title" to this land in Stoddard county circuit court. The suit was by publication. Marley heard of it, and arranged with counsel to defend his title. The case went by change of venue to St. Genevieve county, where It was disposed of in 1909, by plaintiff taking a nonsuit after the trial court had indicated adverse action to him. E. R. Kelso was counsel for Norman in this case, and it is shown that he agreed to reinstitute the suit against Marley within a year. The suit begun in 1906 we shall call suit No. I. The one brought January 25, 1910, we shall call suit No. 2.

With the suit No. 2 pending, Mr. Kelso, as attorney for W. W. Norman, on February 3, 1910, brought suit No. 3, and had a summons sent to Marley's home in Illinois, and there served upon him. Suit No. 2 was brought by Judge Green, as attorney for Norman, and at Norman's direction the notice of publication was run in a paper of limited circulation printed and published in a small town some distance from the county seat. Suits No. 3 and No. 2 were returnable to the same term of the Stoddard county circuit court. Marley, having actual notice of suit No. 3, came to Missouri and appeared in defense of that suit. Marley filed a motion for a cost bond in said action on September 12, 1910, 10 days prior to the decree in suit No. 2. Said motion for cost bond was continued to March term, 1911, and on the 22d day of March Norman dismissed the cause.

Both counts of the petition in the instant case contained a prayer, not only for the cancellation of the judgment of September 22, 1910, but also for the determining of title. The court granted plaintiff leave to strike out those portions of the prayers with reference to the adjudgment of title, and granted defendant leave to amend its answer, so as to ask for the adjudication of title. Both parties put in their chain of title to the 320 acres of land. The trial court found against plaintiff on the first count of the petition and for her on the second count, and set aside the judgment of September 22, 1910, but on the respective claims of title decreed title in plaintiff for 160 acres of the land and for defendant for the other 160 acres. From such judgment both sides have appealed. Details of both pleadings and evidence are left to the opinion.

I. If the trial court erred in setting aside the judgment of "September 22, 1910, we have the end to plaintiff's case. This judgment is a blot upon her title, so long as it stands; this, because it divested James A. Marley of title, and decreed title in W. W. Norman, who conveyed to defendant. The trial court in its decree said:

"On the second count of the petition, as amended, the court finds that, by reason of mistake, error, and combination of facts and circumstances of the two suits against plaintiff in the Stoddard county circuit court, she was misled, deceived, and prevented from contesting her title to the lands involved, and that the order, judgment, and decree of this court should be that the decree of the Stoddard county circuit court, bearing date September 22, 1910, decreeing the title in defendant, should be canceled, annulled, and for naught held."

To get at the facts a little more fully, it should be said that James A. Marley claimed to have acquired title to these lands October 2, 1905, and his deed was recorded December 26, 1905. He, as well as plaintiff, resided in Illinois. James A. conveyed to W. H. Marley August 22, 1911, but deed not recorded until August 30, 1915. By the will of W. H. Marley, probated in Edgar county, Ill., the title passed in December, 1913, to the plaintiff. The will, together with its probate, were later (in 1916) filed for record in Stoddard county. Case No. 1 of the line of cases involved here was a suit by Norman against James A. Marley, and covered only the land In suit. It was finally dismissed in 1909, under the circumstances indicated in our statement.

The present plaintiff is the mother of James A., as we gather from the record. From 1906 on these two have paid the taxes on the land. It stands admitted that neither the defendant nor its grantors had paid any taxes thereon for a period of 31 years.

Mr. Norman explains the suits Nos. 2 and 3 by saying that he had written Mr. Kelso about reinstituting the suit which was dismissed in 1909, but had received no answer, and that he got Judge Green to bring No. 2, the omnibus suit, in which the name of James A. Marley appeared about the middle of a long list of defendants, and Marley's 320 acres described, with several thousand acres of other land scattered over the county. Norman knew, in law, if not in fact, of both these suits being brought, because the law required him to know the acts of his agent and attorney, Kelso, who brought suit No. 3. In law he knew just what Kelso knew, and, if he did, he knew that Marley had been sued by personal service and only on the 320 acres of land owned by him. He knew in fact all that was clone in case No. 2, and the form of that petition. He had the usual knowledge that publications are not often seen by nonresidents, and he knew of Marley's nonresidence. He further knew that Marley, having been sued by personal service, would not likely suspect another suit by publication against him: The whole transaction, from the beginning to the end, was the handiwork of Norman and his own agents, and Norman should be responsible for any fraud in law, fraud in fact, deception, or mishap, which was occasioned by his acts or the acts of his counsel.

Of course, the two lawyers are blameless, because neither knew what the other was doing; but this cannot be said of Norman. His acts put the whole chain of circumstances in motion, and whilst the trial court may have been right in saying that there was no actual fraud, a matter we need not and do not pass upon, yet it was clearly right in holding in substance that the things done by Norman and his agents and attorneys worked a fraud upon Marley, through which he (without relief from a court of equity) would lose title to the land, if such he had. The fact that Marley was sued in case No. 3, and personally served, was well calculated to prevent him and his counsel from scrutinizing the county papers for another suit by publication, in which his land might be included. Marley not only had counsel looking after his title from 1906 on up to 1911, when case No. 3 was dismissed, but during these years he took the leading county seat paper, in order to keep advised. Norman is responsible for suit No. 3, because he had directed his counsel, Kelso, to reinstitute the suit dismissed in 1909, suit No. 1. If this act tended to abate the vigilance of Marley, and tricked him out of a defense in suit No. 2, it was not only a fraud upon Marley, but upon the court who rendered a default judgment in case No. 2. This filing of a case and procuring personal service therein was well calculated to mislead Marley as to there being another action pending, and, as said, this was the act of Norman. What his agent and attorney did, in law and equity, he did, and if the act misled Marley, and tricked him out of a defense in case No. 2, then such fraud entered into the judgment herein sought to be set aside. Wonderly v. Lafayette Co., 150 Mo. loc. cit. 650, 51 S. W. 745, 45 L. R. A. 386, 73 Am. St. Rep. 474; Howard v. Scott, 225 Mo. loc. cit. 714, 125 S. W. loc. cit. 1165. In...