Matthews v. Van Cleve

• Decision Date: 03 January 1920
• Docket Number: No. 20445.,20445.
• Citation: 221 S.W. 34,282 Mo. 19
• Parties: MATTHEWS et al. v. VAN CLEVE et al.
• Court: Missouri Supreme Court

221 S.W. 34

282 Mo. 19

MATTHEWS et al. v. VAN CLEVE et al.

No. 20445.

Supreme Court of Missouri, Division No. 2.

January 3, 1920.

On Motion for Rehearing, April 9, 1920.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Suit by R. S. Matthews and Milton C. Tracy against James G. Van Cleve and others. Milton C. Tracy dying pending the suit, his heirs, Fred N. Tracy and another, were substituted as parties plaintiff in his stead. Judgment for defendants, and plaintiffs appealed to the Kansas City Court of Appeals. Transferred on the ground that the title to land is involved. Reversed and remanded. "

Appellants brought their suit, a proceeding in equity, in the circuit court of Macon county, Mo. The issues were duly made up, and upon a hearing of the cause the judgment of the court was in favor of the defend.. ants, and plaintiffs thereupon appealed to the Kansas City Court of Appeals. That court transferred the case to this court, on the ground that the title to land is involved in the proceeding. A motion to remand having been overruled, the cause remains here for decision. The facts out of which this controversy arose are substantially as follows:

Benjamin N. Tracy, Sr., was the father of Milton C. Tracy, Bettie Tracy Roberts, Luther G. Tracy, Benjamin N. Tracy, J"., and Aubrey D. Tracy. Benjamin N. Tracy, Sr., died testate in Macon county in 1873. His will was duly admitted to probate in that county, and the estate was duly administered. His wife, Frances W. Tracy, is also dead.

The third paragraph of testator's will reads as follows:

"I devise and bequeath to my son, Ben N. Tracy and his heirs the following described real estate, to wit: Twenty-six feet off of the east end of lots one and two in block 87 in Macon City, Missouri; also lot No. thirty in College addition to Macon City, Missouri, and lot No. six in block 167 in the College addition to said city of Macon; to have and to hold the same in trust for the use and benefit of my son, Milton C. Tracy and his heirs, the said trustee to have the sole management and control thereof, to collect the rents and pay the same to said beneficiary and his heirs, the said Milton to have no control or disposition of said estate and no power to encumber the same, but said trustee to have power to sell and convey the same or any part thereof for reinvestment in other property to be held by him or his successors in the same way."

Benjamin N. Tracy, Jr., on the death of his father duly qualified as trustee of Milton C. Tracy, and acted in that capacity for a number of years. He was succeeded in the office of trustee by one Philip Trammel, who was succeeded by James W. Roberts (husband of the defendant Bettie Tracy Roberts), who resigned in 1912, and the plaintiff R. S. Matthews was then appointed trustee in his place, and acted in that capacity until the death of Milton C. Tracy July 11, 1915.

This suit was originally brought by Milton C. Tracy and his said trustee, R. S. Matthews, against James G. Van Cleve, Edwin McKee, and Edward J. Demeter, all of whom are judgment creditors of the said Milton C. Tracy, and Bettie Tracy Roberts and Charles H. Payson. Upon the death of Milton C. Tracy pending the suit, his heirs, Fred N. Tracy and Luther G. Tracy, were substituted as parties plaintiff in his stead.

It is alleged in the petition that by inheritance or purchase the title to all of the land involved in this action is now vested in the three plaintiffs and in the defendant Bettie Tracy Roberts. Mrs. Roberts, however, also claims in her answer to be the sole owner of these lands by virtue of the will of Milton C. Tracy. Further details as to the derivation of title are not necessary to an understanding of the issues of this case.

Charles H. Payson was made a party defendant because he also had a judgment against the decedent, Milton C. Tracy, and under his said judgment had caused an execution to be issued, and had levied the same upon the interest of Bettie Tracy Roberts in said real estate. Further reference to this matter is unnecessary.

It is further alleged that for about 15 years prior to his death Milton C. Tracy was an invalid, confined to his home and unable to attend to any business; that the defendants Van Cleve, McKee, and Demeter had each obtained separate judgments against said Milton C. Tracy, and thereafter had brought a creditors'" bill, so called, in the circuit court of Macon county, Mo., whereby, as they claim, they had obtained a perpetual lien upon the portion of the property left in trust to Benjamin N. Tracy, Jr., for the use of the said Milton C. Tracy by the will of the testator. This proceeding was had during the latter years of the life of Milton C. Tracy, and at a time when his brotherin-law, James W. Roberts, was acting as his trustee. James W. Roberts was an attorney at law, and, it is alleged, undertook to enter the appearance of the said Milton C. Tracy to said action in the nature of a creditors' bill, and no process whatever was served upon the said Milton C. Tracy in that suit. Plaintiffs allege that the conduct of the said Roberts in so doing was unauthorized and fraudulent, and done in connivance with the said judgment creditors and without the knowledge, consent, or approval of the said Milton C. Tracy, and that the judgment so rendered is, for that and other reasons in the petition alleged, null and void; that the original judgments in favor of said judgment creditors separately are barred by the statute of limitations, and that neither the original judgments nor the judgment obtained in the so-called creditors' bill proceeding constitute a lien upon the lands in question.

It further appears that by order of court, in an effort to preserve the trust estate, the trustee was authorized to borrow of one George W. Gilstrap the sum of $600, and to give a deed of trust upon the property in question to secure the same, which he did. The validity of this deed of trust is not attacked. It appears that a portion of the trust estate had been sold, and, in violation of the terms of the will, the proceeds had been paid to the said Milton C. Tracy, or used in the payment of taxes against the trust property, so that at the time of the suit but a small part of the trust estate remained.

The answer of the defendants Van Cleve, McKee, and Demeter admits that they severally obtained judgments against the said Milton C. Tracy, and that their judgments were afterwards consolidated in one judgment in the so-called creditors' proceeding, and the original judgments were thereupon released upon the record. They deny the allegations of fraud and collusion between themselves and Roberts, trustee; plead that. their judgments were from time to time revived by writs of scire facias until consolidated in the creditors' judgment aforesaid; aver that Roberts was duly authorized to enter the appearance of Milton C. Tracy to these various proceedings, both as his trustee and as his attorney; plead that no appeal was taken from the judgment rendered in the creditors' bill proceedings against Milton C. Tracy and James W. Roberts in January, 1907, and that all questions concerning the same are now res `adjudicate; that the existence of said judgment was well known to Milton C. Tracy for a long time prior to his death, and to the plaintiff R. S. Matthews at the time of his appointment as trustee; that Milton C. Tracy died testate; that his will was duly probated in the probate court of Macon county, Mo., and that by the terms of his will the said Milton C. Tracy devised and bequeathed to the defendant Bettie Tracy Roberts the real estate here in question, which seems to have been practically all he had, and that by reason of the facts alleged plaintiffs are estopped to question the validity of the said judgment and lien obtained in said creditors' bill proceeding; that by his quiescence and silence the plaintiff Matthews had lulled defendants into a false sense of security, until it was too late to revive the judgments in their favor; and that plaintiffs are thereby estopped to question the validity of the judgments in the said creditors' bill proceeding.

Van Cleve, McKee, and Demeter also filed their cross-bill, alleging the judgment obtained by them in January, 1907, against the said Milton C. Tracy and James W. Roberts, his trustee, in the creditors' bill proceeding aforesaid, that by the terms of said judgment it was to be a continuing lien upon the lands here involved until the death of said Milton C. Tracy, and that thereafter the property was to be sold to satisfy said judgment, and praying that the land be sold to satisfy the judgment aforesaid, after the payment of $600 due the said George W. Gilstrap.

Bettie Tracy Roberts filed a separate answer, denying that either the defendants Van Cleve, McKee, and Demeter, or the plaintiffs, or any of them, have any interest in said real estate, and claiming to be the sole ana exclusive owner thereof, apparently basing her claim upon the will of the said Milton O. Tracy. This defendant prayed for a judgment of the court divesting title from the plaintiffs and her codefendants, and vesting the title to the entire property in herself.

The answer of the defendant Charles E:. Payson admitted that he had obtained judgment against his codefendant Bettie Tracy Roberts, that execution had been issued thereunder, and levy made upon her interest in the real estate in question, and denied that her interest in said real estate was subject to a lien in favor of the defendants Van Cleve, McKee, and Demeter.

Plaintiffs' reply to the answer of Van Cleve, McKee, and Demeter was in substance a general denial, coupled with an allegation that under the will of Benjamin N. Tracy, Sr., the title to the property left in trust to Milton C. Tracy vested, upon the death of said beneficiary, in the heirs of Benjamin N. Tracy, Sr., that none of his heirs were made parties to the said creditors' bill proceeding,...