Martin v. Castle

• Decision Date: 31 January 1906
• Citation: 91 S.W. 930,193 Mo. 183
• Parties: MARTIN v. CASTLE et al.
• Court: Missouri Supreme Court

91 S.W. 930

193 Mo. 183

MARTIN v. CASTLE et al.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

1. TENANCY IN COMMON — EXISTENCE — SURVIVING HUSBAND AND HEIRS OF DECEASED WIFE.

The surviving husband and the heirs of the deceased wife are not tenants in common in the wife's realty, the husband being entitled to the exclusive possession thereof as tenant by the curtesy; and the heirs may purchase the husband's interests at a sale under an execution issued on a judgment against him.

2. JUSTICES OF THE PEACE — JUDGMENT—VACATING—PETITION—SUFFICIENCY.

The allegation in a petition, in a suit attacking a judgment rendered in justice court, that the records and proceedings by which the judgment was procured nowhere showed that defendant therein was served with process as required by law, is a conclusion of law and insufficient, for the inference drawn is that defendant was served with process, but not according to law as understood by him.

3. SAME.

The petition, in a suit attacking a justice's judgment because of defective service of process, should point out the particulars in which the service was defective, so as to enable the court to determine whether the defect is fatal.

4. SAME—WANT OF JURISDICTION OF SUBJECT-MATTER — PETITION — ALLEGATIONS—SUFFICIENCY.

A petition, in a suit attacking a justice's judgment on the ground of want of jurisdiction of the subject-matter of the action, which does not allege wherein the justice lacked jurisdiction, is bad, and a mere allegation of want of jurisdiction is not sufficient.

5. EXECUTION—SALE—ACTION TO SET ASIDE— PETITION — ALLEGATION OF FRAUD—SUFFICIENCY.

The petition, in a suit to set aside a sheriff's sale, alleged that plaintiff was the surety on notes executed by his wife; that the notes were procured by defendants, the wife's heirs, and turned over to third persons without consideration for the purpose of compelling plaintiff to pay the notes and relieve the estate of the wife from liability therefor; that the third persons obtained judgment on the notes against plaintiff; and that his interest was sold at sheriff's sale. Held, insufficient to justify the setting aside of the sale on the ground of a fraudulent combination to defraud plaintiff.

6. SAME—INADEQUACY OF PRICE—PETITION— ALLEGATIONS—SUFFICIENCY.

The petition, in a suit to set aside a sheriff's sale, alleged that the total interest of plaintiff levied on under an execution issued on a judgment exceeded $8,000 in value, that the sheriff pretended to sell all of plaintiff's interest in a lump, and that at the sale the same brought $106. Held, that the difference between the value of the interest and the price was not sufficient to justify the setting aside of the sale.

7. MORTGAGES — DEBTS OF WIFE — ENFORCEMENT AFTER WIFE'S DEATH — TITLE ACQUIRED.

A wife executed a note for money borrowed by her. The husband signed it as surety. They executed a deed of trust conveying her land to secure it. They executed other notes for money borrowed by her. After the wife's death the deed of trust was foreclosed, and judgments were rendered against the husband on the other notes. Held that, as the title acquired through the sale under the deed of trust passed all the estate of the husband and wife, the purchaser's title was good as against the husband, though the title acquired at the sale under the execution issued upon the judgments was bad.

Appeal from Circuit Court, Andrew County; A. D. Burnes, Judge.

Action by John F. Martin against Lydia V. Castle and others. From a judgment for defendants, plaintiff appeals. Affirmed.

See 81 S. W. 426.

Dickson & Dickson, W. G. Hine, Chas. C. Crow, and L. J. Eastin, for appellant. Booher & Williams, Elizur S. Castle, and Vinton Pike, for respondents.

BURGESS, P. J.

A second amended petition filed in this case is as follows:

"Plaintiff states that defendant, Asa Roy Martin, is a minor.

"Plaintiff further states that he was lawfully married to Mary E. Martin on the 30th day of April, 1884, in Delta county, Colorado, and thereafter continued to live with her as her husband until her death, which occurred on the 5th day of March, 1895; that issue was born alive of said marriage; that at and prior to the date of her death Mary E. Martin was seised of the following described real estate, to wit, two hundred and fifty acres of land in Andrew county, Missouri. That prior to the death of Mary E. Martin she borrowed of one Mary A. Owen the sum of nineteen hundred dollars ($1,900.00), made, executed and delivered to said Mary A. Owen her certain promissory note dated October 16, 1892, by which she promised, for value received, to pay to said Mary A. Owen the sum of nineteen hundred dollars ($1,900.00), five years after date with interest at the rate of seven per cent. per annum from date, payable annually; that plaintiff signed said note as surety; that on the same date, to wit, October 16, 1892, said Mary E. Martin and this plaintiff executed and delivered to one Herbert A. Owen, trustee, their certain deed of trust, in the nature of a mortgage, conveying the land heretofore described to said Herbert A. Owen, in trust to secure the payment of said note. Said deed of trust was duly filed for record on the 22d day of November, 1892, and recorded in Book 65 at page 515, in the office of the recorder of deeds of Andrew county, Missouri.

"Plaintiff further states that all the money received by said loan was in fact received by Mary E. Martin and during her life time expended by her in permanently improving said real estate; that, after the death of said Mary E. Martin, plaintiff paid the interest on said note as it accrued up to the ____ day of ____, 1896.

"Plaintiff further states that on or about the ____ day of ____, 1896, Charles F. Booher and Issac R. Williams and E. S. Castle commenced proceedings before J. R. Majors, a justice of the peace within and for Nodaway township, Andrew county, Missouri, against this plaintiff, upon certain promissory notes which had been signed by him jointly with Mary E. Martin, and recovered judgment thereon against this plaintiff, although said notes were in fact the primary obligations of Mary E. Martin, and the estate of Mary E. Martin was at the time solvent; that said notes were given by Mary E. Martin to secure money on her own account, and all moneys so secured by said notes was in fact used by said Mary E. Martin; that said Booher, Williams, and Castle, who recovered said judgment, were not the payees in said notes, and said notes were procured by the defendants herein and turned over to said parties without consideration, for the purpose of oppressing this plaintiff and compelling him to pay said notes and thereby relieve the estate of Mary E. Martin, in which all of these defendants were directly and personally interested as heirs and distributees, from the payment of the same, and for the purpose of further oppressing this plaintiff by causing to be sold under said judgments his interest in the real estate herein described; that thereafter these defendants caused execution to be issued on said judgments and caused the sheriff of Andrew county to levy, or pretend to levy, upon and seize all the right, title, and interest of ...