Marley v. Norman's Land & Manufacturing Company
| Decision Date | 11 July 1921 |
| Docket Number | 21,514,21,513 |
| Parties | SOPHIA MARLEY, Appellant, v. NORMAN'S LAND & MANUFACTURING COMPANY, No. 21,514. SOPHIA MARLEY v. NORMAN'S LAND & MANUFACTURING COMPANY, Appellant -- No. 21,513 |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court. -- Hon. Frank Kelly, Judge.
Reversed and remanded (with directions).
Oliver & Oliver and Gallivan & Finch for plaintiff.
(1) The suit for taxes against August J. Weil and Henry G. Weil and the unknown heirs of Joseph Weil, deceased, was against the proper parties, and, therefore, sale under said judgment conveyed title. Sec. 12945, R. S. 1919; Vance v Corrigan, 78 Mo. 94; State ex rel. Hunt v Sack, 79 Mo. 661; Gitchell v. Kreidler, 84 Mo 472; Keaton v. Jorndt, 220 Mo. 117. (2) The will of Joseph Weil, not having been probated in Stoddard County, did not impart notice until it was recorded there in 1905 Graves v. Ewart, 99 Mo. 17; Rodney v. McLaughlin, 97 Mo. 426; Kieth v. Kieth, 97 Mo. 223; Rodney v. Landau, 104 Mo. 260. (3) The acts and conduct of Norman and his attorneys, as well as the result thereof, was a fraud upon the court and fraud in the concoction of the judgment. Lee v. Herman, 84 Mo.App. 157; Wonderly v. Lafayette County, 150 Mo. 635; Tapana v. Shaffray, 97 Mo.App. 337; Smoot v. Judd, 161 Mo. 673; Bresnehan v. Price, 57 Mo. 422; Howard v. Scott, 225 Mo. 685; Ramsey v. Hicks, 53 Mo. 190; Irvine v. Lehy, 102 Mo. 204. (4) The sheriff's deed under the tax judgment conveyed the three hundred and twenty acres, as the abbreviated description is good and sufficient. Sec. 12968, R. S. 1919; State ex rel. v. Vaile, 122 Mo. 48. (5) August J. Weil and Henry G. Weil, having been personally served in the tax suit, and having filed answer pleading title in themselves, would be estopped from setting up any different claim of title against the purchaser at the tax sale and the defendant claiming under them by deeds made in 1905 is in no better position. Nave v. Todd, 83 Mo. 601; Koney v. Laird, 153 Mo. 408; 16 Cyc. 799; Austin v. Loring, 63 Mo. 19; Proctor v. Nance, 220 Mo. 104.
J. L. Fort and B. C. Hardesty for defendant.
(1) Defendant has the record title independent of the decree of September 22, 1910, which plaintiff seeks to cancel. Donaldson v. Allen, 182 Mo. 626; Hazel v. Hagen, 47 Mo. 277; Ebey v. Adams, 10 L. R. A. 162; 39 Cyc. 99, 102. (2) Defendant also has title under said decree, because no actual fraud exists as a basis for setting aside the same. (a) The evidence, instead of showing actual fraud as a basis for setting aside said decree, shows Norman's good faith throughout. Rodan v. Transit Co., 207 Mo. 408. (b) The very acts Norman is charged with rebut the charge of fraud, for they comport better with the theory of fair dealing than with fraud. Ames v. Gilmore, 59 Mo. 537; Redpath v. Lawrence, 48 Mo.App. 427; Andrews v. Linebaugh, 260 Mo. 623. (3) Defendant has title under said decree, because no constructive fraud exists as a basis for setting aside that decree. (a) Constructive fraud cannot be founded upon acts that are of a perfectly legal character. Hobgood v. Ehlen, 141 N.C. 344; Nations v. Pulse, 175 Mo. 93; Bank of Versailles v. Guthrey, 127 Mo. 193; Barr v. Cubbage, 52 Mo. 404; Steward v. Severance, 43 Mo. 322. (b) Norman was under no legal obligation to give personal notice to Marley. Huiscamp v. Miller, 220 Mo. 135. (c) Norman is chargeable with no act of commission or omission which can be considered the proximate cause of Marley's failure to obtain notice of the publication suit. Snyder v. Free, 114 Mo. 376; R. S. 1909, secs. 2102, 2103; Travelers' Prot. Assn. v Gilbert, 55 L. R. A. 542, 543; Lieber v. Lieber, 239 Mo. 1; See v. Harmon, 84 Mo.App. 157; Tapana v. Shaffray, 97 Mo.App. 345; Sanderson v. Voelcker, 51 Mo.App. 332; 23 Cyc. 936, note 77. (d) The real proximate cause of the defendant's failure to learn of the pendency of the suit or the rendition of the judgment is the legal negligence with which defendant is chargeable. Richardson v. Howard, 158 P. 877; R. S. 1909, sec. 2103; Bunn v. Lindsay, 95 Mo. 260; Burnham v. Clark, 232 Mo. 657. (4) The plaintiff appealed from the court's award of a part of the land to defendant, but that action of the court is correct and should be sustained. DePaige v. Douglas, 234 Mo. 78; Dixon v. Hunter, 204 Mo. 387.
Plaintiff's action is one to set aside a judgment of the Circuit Court of Stoddard County, Missouri, in so far as such judgment effects James Marley and the land involved in this suit. The judgment sought to be so cancelled was one entered on the 22nd day of September, 1910, in the case of W. W. Norman v. Jefferson J. Green et al. The Norman suit, supra, was an action to quiet title to two thousand acres or more of land, including the three hundred and twenty 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 three hundred and twenty 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, Missouri, 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. I. 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. 1. 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, ten days prior to the decree in Suit No. 2. Said motion for cost bond was continued to March term, 1911, and on the 22nd 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 three hundred and twenty 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 one hundred and sixty acres of the land and for defendant for the other one hundred and sixty 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 cancelled, 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 the deed was not recorded until August 30, 1915. By the will of W. H. Marley, probated in Edgar County, Illinois, 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. C...
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