McFadin v. Simms

• Decision Date: 01 July 1925
• Docket Number: No. 24668.,24668.
• Citation: 273 S.W. 1050
• Parties: McFADIN et al. v. SIMMS et al.
• Court: Missouri Supreme Court

273 S.W. 1050

McFADIN et al. v. SIMMS et al.

No. 24668.

Supreme Court of Missouri, Division No. 1.

July 1, 1925.

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

Action by Minitree C. McFadin and others against John W. Simms and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

John E. Burden, of Lexington, and Gerson B. Silverman, of Kansas City, for appellants. Franken & Timmons, Lozier & Morris, and Conkling & Withers, all of Carrollton, for respondents.

RAGLAND, P. J.

This suit is a sequel to Simms v. Thompson, reported in 291 Mo. at page 493, 236 S. W. 876, and following. Practically the same questions urged in that case are again presented in this. That being an appeal from an order of the circuit court overruling a motion to vacate one of its judgments for error of fact, we were limited to a consideration of such of the questions as could be raised and determined under a writ of error coram nobis at common law. The questions which, because of such limitations, we then declined to consider we will endeavor to dispose of now. As to the others, there is no necessity for again ploughing the same ground. The statement of facts presently to be made will be shaped accordingly, leaving the opinion in the former case to supply such additional details as may be desired.

Minitree Catron, in the year 1836 and from that time on continuously until his death, which occurred `on the 13th day of August, 1862, was a resident of Lafayette county, Mo. In the year 1838 he purchased from the United States, and the United States conveyed to him by patents, three several tracts of land situated in Carroll county, Mo., which together formed a contiguous body of approximately 160 acres. He left a last will, which was duly proved, and which with the certificate of probate was thereafter, on the 4th day of September, 1862, duly recorded in the record book kept for that purpose in the office of the clerk of the probate court of Lafayette county. By said will he devised all of said lands to his daughter Frances Eveline McFadin "for and during her natural life, and after her death the said lands to be equally divided among all of her children share and share alike." A copy of the will was never recorded in the recorder's office of Carroll county.

On the 20th day of November, 1865, John McFadin, husband of Frances Eveline, executed a bond to one Edward Hamill in the penal sum of $2,000, to be void upon the condition that he (McFadin) execute and deliver to sail Hamill "a good and warrantee deed" to the land heretofore referred to, "upon payment of one thousand dollars for which note for nine hundred dollars has been given and one hundred dollars paid in cash." The instrument was recorded in the office of recorder of deeds of Carroll county May 30, 1866. On January 5, 1867, John McFadin and his wife, Frances Eveline, executed a deed containing covenants of general warranty wherein and whereby, for a consideration of $1,000 paid to them, they purported to convey the same land in fee to Mary A. Simms. The deed was duly recorded in the recorder's office of Carroll county June 12, 1867. Both the bond and deed recited that John McFadin was "of Lafayette county, Mo."

Mary A. Simms and her husband, John, went on the land which the McFadins purported to convey to them in the early part of 1868. It was then wild and uninclosed — "prairie and hazel brush." They built a house and barn on it, fenced it, put it in cultivation, established their home there. They thereafter, during the life of Mary Simms, continuously resided on the land, farming and cultivating it. She died intestate on or about November 1, 1887. After her death, John Simms, her husband, continued in the possession and control of the land until his death, which occurred May 20, 1901.

In 1909 the heirs of Mary Simms, preparatory to offering the land for sale, caused an abstract of the title to be made. The abstract so made showed: The entries of the several tracts by Minitree Catron in 1838, as shown by the plat book of entries on file in the recorder's office of Carroll county; the issuance of patents corresponding to the entries and their record in the General Land Office, as evidenced by certificates of an attorney of Washington, D. C.; the bond executed by John McFadin to Edward Hamill; and the deed from McFadin and wife to Mary A. Simms. There thus appeared two breaks in the record title—there was no conveyance of Catron's legal title and none of Hamill's possible equitable title. The Simms heirs submitted the abstract to an attorney,. and were advised by him that a suit under the statute to determine and quiet title was necessary. Thereafter a petition was prepared in which the Simms heirs were designated as plaintiffs and Minitree Catron, "the unknown wife or widow, and the unknown heirs, the unknown descendants, the unknown devisees, and the unknown assigns of Minitree Catron," Edward Hamill, and "the unknown wife or widow and the unknown heirs, the unknown descendants, the unknown devisees, and the unknown assigns of Edward Hamill," were made defendants. The petition, after alleging that plaintiffs were the owners in fee simple and in the peaceful possession of the land, proceeded as follows:

"Plaintiffs further state that the defendants claim some title, interest, or estate in said premises adverse to that of plaintiffs, the nature or character of said title, interest, or estate which defendant or any of them claim cannot be more definitely stated (except as is hereinafter done) because it is unknown to plaintiffs, except that it is adverse to plaintiffs.

"Plaintiffs further state: That there are persons interested in the subject-matter of this petition whose names plaintiffs cannot insert herein because they are unknown to plaintiffs; said unknown persons being the defendants herein designated and referred to in caption as unknown, to wit, the unknown wife or widow and the unknown heirs, the unknown descendants, the unknown devisees, and the unknown assigns of each of the following named persons, respectively:. Minitree Catron, Edward Hamill. * * * That the title, interest, or estate which said unknown persons (defendants) claim or might claim in said land or any part thereof is such as they derived by the statutes of descent and distribution of dower and homestead of the state of Missouri, by devise, by deed of conveyance, or by assignment, from said persons, respectively, to wit, Minitree Catron (and) Edward Hamill. * * * Plaintiffs cannot further describe the interest of said unknown persons, defendants herein, nor how said interest, if any, was derived, because such is unknown to plaintiffs; and plaintiffs have described herein the right, title, interest, and estate, if any, in said land of the said unknown defendants, and how said interest, title, and estate was derived so far as plaintiffs' knowledge extends."

The petition was verified by John W. Simms, one of the plaintiffs, in the following language:

"John W. Simms, having been duly sworn, states on his own behalf and on behalf of his coplaintiffs herein that the allegations of the above and foregoing petition are true."

The petition was filed in the office of the clerk of the circuit court of Carroll county, July 22, 1009. An order of publication based thereon, directed to the nonresident and the unknown defendants, and returnable to the September term, 1909, of the court, immediately followed. With respect to the form and substance of the order and its publication, the provisions of sections 575 and 580, R. S. 1899, then in force, were substantially complied with. At the return term a judgment was rendered in the cause. According to its recitals none of the defendants appeared but all made default; a hearing was had; "and upon the evidence adduced by the plaintiffs" the court found generally that the plaintiffs were the absolute owners in fee simple of the land described in the petition, and specifically that "the unknown wife or widow and the unknown heirs, the unknown descendants, the unknown devisees, and the unknown assigns of Minitree Catron * * * each and all of them have no title, interest, or estate in said land or any part thereof." The judgment concluded:

"And the court doth further adjudge and decree that the defendants and each of them be estopped and debarred from ever setting up or claiming title, interest, or estate in or to said land or to any part thereof."

On the 17th day of September, 1917, a motion was filed in the cause to vacate the judgment; the movents being the surviving children and the heirs of the deceased children of Frances Eveline McFadin, who died in 1016. After an extended hearing in the circuit court, the motion was overruled. An appeal taken from the order overruling the motion resulted in an affirmance by this court. Simms v. Thompson, supra.

This suit was commenced February 4, 1922. The plaintiffs are the same persons who were the movents in the motion to vacate the judgment in the suit to quiet title; the defendants are the heirs of Mary A. Simms and James L. Wilson and Henry Lee Wilson, to whom they sold and conveyed, the land in question in 1911.

The petition is in five counts. The first seeks to have the judgment in Simms v. Thompson set aside on the ground of fraud in its procurement. It is quite voluminous, but the substance of it is set forth in the following excerpts therefrom:

"Plaintiffs state that the said judgment to quiet title is fraudulent and void, and subject to be avoided in this action, because the several charges and allegations in the" defendants' petition and the said oath of the defendant John W. Simms verifying the same, and the evidence adduced at the hearing, attaching to the judgment itself, are false and fraudulent in the following particulars: That the allegation that the devisees of Minitree Catron were nonresidents of the state of Missouri and unknown to the defendants was false and made...