McFadin v. Simms

• Citation: 273 S.W. 1050,309 Mo. 312
• Decision Date: 01 July 1925
• Docket Number: 24668
• Parties: MINITREE C. McFADIN et al., Appellants, v. JOHN W. SIMMS et al
• Court: United States State Supreme Court of Missouri

273 S.W. 1050

309 Mo. 312

MINITREE C. McFADIN et al., Appellants, v. JOHN W. SIMMS et al

No. 24668

Supreme Court of Missouri

July 1, 1925

Appeal from Chariton Circuit Court; Hon. Fred Lamb, Judge.

Affirmed.

John E. Burden and Gerson B. Silverman for appellants.

(1) The trial court erred in failing to apprehend that the will of Minitree Catron, the patent owner of the lands in controversy, who was at his death a resident of Lafayette County, duly proved and probated in and by the Probate Court of said county and recorded in a record book kept in said court for the purpose of recording last wills and testaments was an adjudication in rem by a court of original exclusive jurisdiction, and notice to all the world and conclusive everywhere and upon all persons, of the devises and bequests in said will contained, and of the persons to whom bequeathed, and constituted a link in the chain of title to all lands lying within the boundaries of the State owned by said testator at the time of his death, and that said judicial adjudication was impervious to collateral attack. R S. 1919, secs. 505, 553, 534; 3 Redfield on Law of Wills (2 Ed.) pp. 56, 63, and note 9; Benoist v. Murrin, 48 Mo. 48; Stowe v. Stowe, 140 Mo. 594; Jourden v Meier, 31 Mo. 40; 2 Green-leaf on Evidence (12 Ed.) sec 672, p. 586; Bigelow on Law of Estoppel (2 Ed.) 145; Dilworth v. Rice, 48 Mo. 124. The trial court erred in failing to apprehend the nature and character of each of the two estates created by said will, namely, an estate for life in Frances Evaline McFadin, and a vested remainder in her children; and also the relative rights, titles and duties of the persons holding said estates respectively and that of her heirs, assigns and privies. The trial court erroneously held and decided that the heirs of Mary A. Simms, privies in estate of the said life tenant, had the legal right and power, by virtue of Section 650, to institute, during the life of the life tenant, the action to quiet title to the lands in controversy, and without any title in themselves other than that they held under the deed of the life tenant, and could and did procure a valid judgment without fraud, seven years before the death of the life tenant, determining that such remaindermen then living had no right, title or interest in the said lands, and that said grantees of the life tenant, plaintiffs in said action, were and are the owners in fee simple title, and that such judgment was and is res adjudicata binding and valid. The life tenant or his grantee cannot do any thing to defeat a vested remainder or to acquire the remainderman's title by a suit to quiet title without his previous conveyance. All outstanding titles acquired by the life tenant inure to the benefit of the remainderman. Tiedeman on Real Prop. (1 Ed.) p. 318, sec. 400; Peak v. Peak, 228 Mo. 536, 137 Am. St. 65; Allen v. De Groot, 98 Mo. 159, 14 Am. St. 628; Salmon v. Davis, 29 Mo. 176; Hall v. French, 165 Mo. 430; McDonald v. Quick, 139 Mo. 484; Watson v. Bissell, 27 Mo. 220; Case v. Goodman, 250 Mo. 112; Bradley v. Goff, 243 Mo. 102; McMurtry v. Fairley, 194 Mo. 512; Aubuchon v. Bender, 44 Mo. 560; Case v. Sipes, 280 Mo. 110; Charles v. Pickens, 214 Mo. 215; De Lashmutt v. Teetor, 261 Mo. 413; Fountain v. Starbuck, 209 S.W. 901; Conn. Ins. Co. v. Smith, 117 Mo. 261; Mathews v. O'Donnell, 289 Mo. 235; 8 Am. & Eng. Ency. Law (1 Ed.) 647; 2 Pom. Eq. (3 Ed.) secs. 956, 958, p. 1747; 1 Story Eq. sec. 307; Ross v. Presbyterian Church, 272 Mo. 96; Armor v. Frey, 253 Mo. 448. Decrees in probate undoubtedly operate in rem -- each decree, admitting a will to probate, or distributing the property of a decedent is conclusive of the validity and due execution of the will in the one case, and of the persons entitled to the property of the decedent in the other in so far as it relates to real and personal property within the State; and where a trust is created by the will the record of the will in the probate court is notice of the trust to every one. The law implies notice in such case. Where the mere possession of the thing itself authorizes the court to decide upon it without notice to any individual whatever, it is a proceeding in rem, to which all the world are parties; and in every such case the judgment of the court is conclusive evidence and notice against all parties interested, though not brought before the court by process. Such is the nature of a judgment of the probate court in probating a will. (2) The statute, authorizing a copy of a domestic will devising lands to be recorded in the county where the land is situated within six months after probate, is directory and not mandatory -- no penalty being attached for a failure to so record it. Wolf v. Brown, 142 Mo. 612; Rodney v. Landon, 104 Mo. 260; Lewis v. City St. Louis, 4 Mo.App. 563; Nichols v. Hobbs, 197 S.W. 258. The law granting the privilege to file a copy of the will in Carroll County affixed no penalty for the failure of minor children and those unborn to file it; and equity will not. State ex inf. v. Bird, 295 Mo. 345; St. Louis County Court v. Sparks, 10 Mo. 117; Price v. Woodford, 43 Mo. 247. Last wills and testaments do not come within the definition of those instruments which are required to be recorded in the office of the recorder of deeds. R. S. 1919, sec. 2198; Mosher v. Bacon, 229 Mo. 357; Nichols v. Hobbs, 197 S.W. 258; Wolf v. Brown, 142 Mo. 612; Lewis v. St. Louis, 4 Mo.App. 563. Frances Evaline McFadin, the life tenant, and Mary A. Simms to whom she sold her interest in the lands in controversy, had actual knowledge and notice of the will of Minitree Catron deceased, and of the probate thereof. Hoge v. Hubb, 94 Mo. 489; Maupin v. Emmons, 47 Mo. 304; Jackson v. Sharp, 9 Johns. (N. Y.) 163, 6 Am. Dec. 267. (3) Wherever two persons stand in a fiduciary relationship, and that relation is abused at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed. 2 Pom. Eq. Jur. (3 Ed.) sec. 956, p. 1748; Cooley v. Warren, 53 Mo. 166. Mary A. Simms purchased from the life tenant. The plaintiffs as her heirs were not purchasers for value, but were privies in estate and bound by the estoppel upon the life tenant and her grantees. Stoutimore v. Clark, 70 Mo. 478; Hasenritter v. Kirchhoffer, 79 Mo. 242; Wood v. Trust Co., 265 Mo. 525. (4) The trial court erred in holding that the former judgment was res adjudicata and valid. (a) Section 650 requires that where there are persons whose names are unknown to the plaintiff, he must make the proper allegation under oath, and where there are more than one or several plaintiffs, then each plaintiff shall personally make the required oath. Quigley v. Mexico Southern Bank, 80 Mo. 297; Schell v. Leland, 45 Mo. 289; Charles v. Morrow, 99 Mo. 646; Rohrer v. Oder, 124 Mo. 24; Myers v. McRay, 114 Mo. 378; Harness v. Cravens, 126 Mo. 250. "The affidavit in case of unknown defendants should be made by the plaintiff himself, or if there are several plaintiffs, then by all of them." Silvers on Missouri Titles (1 Ed.) sec. 122, p. 384; and notes on pages 475, 435, 436, 437; Taylor's Heirs v. Watkins, 4 B. Monroe (Ky.) 569; Blight's Heirs v. Banks, 6 Mon. (Ky.) 224; Kane v. Rock River Canal Co., 15 Wis. 179, 196; Jeffrey v. Hand, 7 Dana (Ky.) 228. (5) The trial court below committed manifest error in its judgment by determining and finding that the judgment in the suit to quiet title, operated to transfer and vest in the heirs of Mary A. Simms, the holders of an estate per autre vie only, the vested estate in remainder of these appellants. Hayti Dev. Co. v. Clayton, 281 Mo. 221. Section 650, Revised Statutes 1899, did not authorize a judgment transferring the title of the defendant to the plaintiff. It effects no affirmative increase in plaintiffs' rights. Powell v. Crow, 204 Mo. 481; Dunavant v. Pemiscot Land & Co., 188 Mo.App. 90; Hayti Dev. Co. v. Clayton, 281 Mo. 221. The judgment in that suit did not vest in the plaintiffs therein the record title of the ancestor of the alleged unknown heirs or devisees; nor did it vest in them the title of the remaindermen. Hayti Dev. Co. v. Clayton, 281 Mo. 221; Powell v. Crow, 204 Mo. 485; Dunavant v. Cooperage Co., 188 Mo.App. 90; Lockwood v. Meade, 71 Kan. 741. The statute authorizes only the quieting of the title which the parties actually own, and does not authorize its use as an instrument to destroy or appropriate the remainderman's estate. Gray v. Clement, 296 Mo. 497. (6) The trial court erred in determining that the judgment in said case of Simms v. Thompson was fairly procured by the heirs of Mary A. Simms without fraud. (a) No statute remedial or otherwise can be used as an instrument of fraud in the procurement of a judgment. 2 Pomeroy, Eq. Jur. (3 Ed.) sec. 921, p. 1658; Wood v. Rabe, 96 N.Y. 414, 48 Am. Rep. 640; Pomeroy, Eq. Jur. (3 Ed.) sec. 431, p. 712; Mansfield v. Mansfield, 26 Mo. 163. (b) It is as much a positive fraud to assert that which is not known to be true, as to assert what is known not to be true; and where a person makes a false statement, not knowing that it is false, but knowing facts sufficient to put him upon inquiry, he is liable for the consequences, to the same extent as if he had actual knowledge. 6 Wait's Acts & Defenses, p. 813. (c) These appellants and their mother Evaline McFadin were purported to be sued as non-residents, so that the ordinary process of law could not be served upon them within the State; when in truth and fact most of them were then well and widely known residents of Lafayette County, and their residence was known to said heirs of Mary A. Simms, by privity of estate, and...