McConnell v. Deal

• Decision Date: 20 December 1922
• Parties: C. T. McCONNELL, Appellant, v. JULIUS H. DEAL et al
• Court: Missouri Supreme Court

246 S.W. 594

296 Mo. 275

C. T. McCONNELL, Appellant, v. JULIUS H. DEAL et al

Supreme Court of Missouri

December 20, 1922

Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.

Reversed.

Montgomery & Rucker for appellant.

(1) The decree in the case of Botts v. Deal, was void because the court did not have jurisdiction of the subject-matter, and did not have a right to render the particular judgment in the particular case. (a) A court of equity has no power to create an express trust. Trusts must be created by writing signed by the party granting the same, or by his last will in writing. Sec. 2263, R.S. 1919; Knapp v. Publishers Co., 127 Mo. 77; Hunter v. Briggs, 254 Mo. 62. (b) A court of equity has no jurisdiction of the cause unless some ground of equitable jurisdiction is found in the allegations of the petition. In order to give jurisdiction to a court of equity either the primary right, estate or interest to be maintained, or the violation of which furnishes the cause of action, must be equitable, or the remedy grantee must be in its nature purely equitable. Pomeroy's Equity Jur. (4 Ed.) sec. 130. (c) One of the requisites to jurisdiction is the power to grant the relief in the case presented, or to render the particular judgment in the particular case. Gray v. Clements, 227 S.W. 113 (2) A decree which is not within the scope of the a legations and prayer of the petition is void. State ex rel. v. Muench, 217 Mo 133; Charles v. White, 214 Mo. 208; Ecton v Tomlinson, 278 Mo. 288; Hope v. Blair, 105 Mo 93. (3) If a court of equity could ever be justified in ordering a sale of the interest of the contingent remaindermen contrary to the evident intention of the grantor, it would only be justified by some exigency which would make the action of the court indispensable to the preservation of the interests of the life tenant and remaindermen from total destruction. Such a decree could not be upheld where entered for the purpose of merely bettering the financial condition of such tenants, or for the purpose of enabling them to make a mere business speculation. Heady v. Crouse, 203 Mo. 110. (4) The judgment in the case of Botts v. Deal, would not be binding upon any of the heirs of the body of Sarah F. Deal who were not parties to that action. Heady v. Crouse, 203 Mo. 119. (5) A merchantable title is one of which the buyer may be reasonably sure that no flaw or claim will arise to make his title bad, or to disturb its marketable value. Kling v. Realty Co. 166 Mo.App. 190; Green v. Ditsch, 143 Mo. 12.

R. H. Duggins and R. M. Reynolds for respondents.

(1) The attack made herein by appellant upon the judgment in the case of Botts v. Deal, is a collateral attack. This is not an appeal from said judgment, nor a writ of error from an appellate court, bringing up said judgment for review, nor a direct proceeding brought for the purpose of modifying or setting the same aside. The effort is merely to evade the judgment and is therefore collateral. Russell v Grant, 122 Mo. 161; Lovitt v. Russell, 138 Mo. 474; Johnston v. Realty Co., 167 Mo. 325. (2) The only question, therefore, left in the case, is whether the circuit court had jurisdiction of the parties and of the subject-matter dealt with in said decree and brought forward and disclosed in the petition. Gray v. Bowles, 74 Mo. 419; Rosenheim v. Hartsook, 90 Mo. 357; Bank of Commerce v. Chambers, 96 Mo. 467; Holt County v. Cannon, 114 Mo. 514; Hamer v. Cook, 118 Mo. 476; Truesdale v. McCormick, 126 Mo. 39; Estes v. Neill, 140 Mo. 639; Winningham v. Trueblood, 149 Mo. 572; Reed v. Nicholson, 158 Mo. 624; Johnson v. Realty Co., 167 Mo. 325; Bedford v. Sykes, 168 Mo. 8; Kelley v. Gephart, 180 Mo. 588; Smith v. Black, 231 Mo. 681; State ex rel. v. Mills, 231 Mo. 493; Rivard v. Railroad Co., 257 Mo. 135. (3) Jurisdiction over the subject-matter of an action means the power to determine legal controversies of the same class or sort. Postlewaite v. Gheslin, 97 Mo. 420; Leonard v. Sparks, 117 Mo. 103. Or, as it is sometimes said, it is the power to adjudge concerning the general question involved; the power to act and adjudicate in litigation of the same nature. State ex rel. Johnson v. Withrow, 108 Mo. 1; Truesdale v. McCormick, 126 Mo. 39; State ex rel. v. Mills, 231 Mo. 493. Or, as it has been said, the power to grant or refuse relief in the case presented. Rivard v. Railroad, 257 Mo. 135; Gray v. Clements, 227 S.W. 113. (4) That the court may have wrongfully exercised its jurisdiction and made erroneous findings is immaterial. The merits of the matter are not open for inspection, and neither are the defects of the petition, if any. Holt County v. Cannon, 114 Mo. 514; Winningham v. Trueblood, 149 Mo. 572; Gray v. Bowles, 74 Mo. 419. (5) That the petition may have been inartificially drawn, or that it would have been insufficient upon demurrer, or that it failed to state a cause of action, does not affect or influence the matter; the one question and the one, alone, is, did the subject-matter belong to the class of cases of which the court had jurisdiction, and did the court exercise that jurisdiction? Gray v. Bowles, 74 Mo. 419; Holt County v. Cannon, 114 Mo. 514; Hamer v. Cook, 118 Mo. 476; Winningham v. Trueblood, 149 Mo. 572; Lingo v. Burford, 112 Mo. 149; Union Depot v. Frederick, 117 Mo. 138; Rosenheim v. Hartsook, 90 Mo. 357; Hagerman v. Sutton, 91 Mo. 519; Chrisman v. Divinia, 141 Mo. 122; Lewis v. Morrow, 89 Mo. 174; Kelley v. Gephart, 180 Mo. 588; Hamill v. Talbott, 72 Mo.App. 22; Yates v. Johnson, 87 Mo. 213. (6) Nor can it be impeached collaterally upon the ground that the wrong form of action was brought, if such be the case. Dollarhide v. Parks, 92 Mo. 178; 23 Cyc. 1093. Nor upon the ground of an alleged misjoinder or non-joinder of parties. Yates v. Johnson, 87 Mo. 213; Holt County v. Cannon, 114 Mo. 514. Nor, upon the grounds of insufficiency of or lack of evidence. 23 Cyc. 1095. Nor, even, upon the ground that the court mis-interpreted the law of the case, for if it did, it would not thereby have deprived itself of jurisdiction. Hamill v. Talbott, 72 Mo.App. 22; Kelley v. Gephart, 180 Mo. 588; Chrisman v. Divinia, 141 Mo. 122; Lewis v. Morrow, 89 Mo. 174; Rivard v. Railroad, 257 Mo. 135. (7) And it is true, also, that where a tribunal is clothed with jurisdiction of the class of actions to which the subject-matter belongs, and the jurisdiction of the particular case depends upon contingent facts, the existence or non-existence of which the court must ascertain and determine, the finding of the court thereon is invulnerable and not subject to collateral attack. It may decide erroneously, and under a misapprehension of both the facts and the law, but such becomes immaterial, when the judgment is subjected to a collateral attack. Its judgment is binding except when appealed from, or brought up by writ of error for review in the regular way, or set aside in a direct proceeding for that purpose. Hadley v. Bernero, 103 Mo.App. 554; Reed v. Nicholson, 158 Mo. 624; Bedford v. Sykes, 168 Mo. 8; State v. McChord, 207 Mo. 526-7; State ex rel. v. Mills, 231 Mo. 493; Rivard v. Railroad, 257 Mo. 135; Smith v. Black, 231 Mo. 681. (8) A court is possessed of jurisdiction when it is permitted by the policy of the law to hear and determine cases of the same nature as the one with respect to which the complaint is made, and where it has jurisdiction of the persons of the parties to the suit; and, however erroneous the exercise of such jurisdiction may be, if erroneous at all, its judgment cannot be attacked in a collateral proceeding. Rivard v. Railroad, 257 Mo. 168. (9) That a court of equity has unquestioned power to convert realty into personalty, and to authorize and order the sale of lands in which life tenants and remaindermen are interested, for the protection of the interests of the parties, is well settled in law; the decree making provision that the purchase price be held and the interests of all parties ultimately interested therein secured to them. 16 Cyc. 653-4, 638-9; 16 Cyc. 654, footnotes 13 and 14; Ridley v. Halliday, 106 Tenn. 607; Bofil v. Fisher, 3 Richardson's Equity, 1, 55 Am. Dec. 627 (South Car.); Ruggles v. Tyson, 104 Wis. 500; Hale v. Hale, 146 Ill. 227; Gavin v. Curtin, 171 Ill. 640. (10) When it appears as in the case of the judgment sought to be attacked herein, that the matters sought to be accomplished by the petition of the plaintiffs therein, was an order for the sale of lands in which there were persons interested as life tenants and others as contingent remaindermen, for the protection of the interests of each and to save them from loss and injury, and the appointment of a trustee to make such sale and hold the purchase money in place of the land for the benefit of the life tenant and the remaindermen, and that such matters were accomplished by the decree of the court, all that is necessary to uphold the judgment, so far as jurisdiction of the subject-matter is concerned, and to render it invulnerable from collateral attack, appears. Authorities cited under points 2 and 9. (11) Nor is the fact, that the interests of the remaindermen are contingent, and that it may be that some answering that description may come into existence, who were not in existence at the time of the rendition of such decree, and who were not served with process therein, and who might have an interest in the subject-matter, material. The court's decree in said cause bound all of the parties in interest in the subject-matter thereof, including those not then in being, but who might thereafter come in being and have an interest therein. The life tenants were parties to said cause, and such persons in being as were apparent or ostensible remaindermen, or who might answer the description...