McIlwrath v. Hollander

• Decision Date: 31 October 1880
• Citation: 73 Mo. 105
• Parties: MCILWRATH v. HOLLANDER et al., Appellants.
• Court: Missouri Supreme Court

73 Mo. 105

MCILWRATH

v.HOLLANDER et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

R. D. Ray and L. T. Collier for appellants.

1. The “proceeding” in the circuit court under the statute to contest the validity of a will on the part of an heir a law against the devisee of real estate in such will, is a “ lis pendens” as to all purchasers pendente lite. Garth v. Ward, 2 Atkyns 174; 2 Mad. Ch., (4 Am. Ed.) 325; S. C. Barn. 450; Hilliard on Vendors, (2 Ed.) 511; 3 Barnard. Ch., 450.

2. A conveyance of said real estate, by said devisee, made pending said suit, will be held subject to such judgment as the court may ultimately render in such cause; notwithstanding such judgment may be the result of a compromise and other than that called for by the pleadings. Turner v. Babb, 60 Mo. 342; O'Reilley v. Nicholson, 45 Mo. 160; Tilton v. Cofield, 93 U. S. 168; Fry v. Kimball, 16 Mo. 21; State Savings Inst. v. Collonious, 63 Mo. 290; Zeiter v. Bowman, 6 Barb. 138.

3. The judgment, execution and sheriff's deed, under which the appellants claim, cannot be impeached, in this collateral proceeding for any mere irregularity and informality, and if not absolutely void, they are conclusive and binding on the parties to this suit. Jourden v. Meier, 31 Mo. 40; Dilworth v. Rice, 48 Mo. 124; Creasy v. Alverson, 43 Mo. 13; McNair v. Biddle, 8 Mo. 257, 264; Matter of Duty's Estate, 27 Mo. 45; Voorhees v. Bank, 10 Pet. 469, 472, 478; Jones v. Talbot, 9 Mo. 122; Gilman v. Hovey, 26 Mo. 280; Latrielle v. Dorleque, 35 Mo. 233; Martin v. Barron, 37 Mo. 301; Chouteau v. Nuckolls, 20 Mo. 442; Shields v. Powers, 29 Mo. 315; Reed v. Austin, 9 Mo. 722; Gaston v. White, 46 Mo. 486; Landes v. Perkins, 12 Mo. 238; Overton v. Johnson, 17 Mo. 442.

4. In all suits whether at law, in equity or other authorized proceeding with a special and exclusive jurisdiction, designed or that must necessarily affect the title to real estate situated in more counties than one, or intended to place a charge or lien thereon; the same may be commenced in any one of said counties and a change of venue effected to another; but in all such cases, the jurisdiction of the court, and the lien of the “ lis pendens ” attaches to all the lands in controversy wherever situated; and said lands will be held by the lien of the “ lis pendens,” from the time of its inception to its final termination, to answer whatever judgment may be ultimately rendered and wher ever rendered; and in such cases the form of relief may be that originally called for by the pleadings, or such as may be suggested by the parties, upon a compromise; but in either case the lien of the “ lis pendens ” does not date or take its rise from the date of the ultimate judgment, but from the pre-existing “pendency” of the suit; that is, from the time of filing the notice with the recorder of deeds in that class of cases mentioned in chapter 197, General Statutes 1865, and in all other cases from the date of the service of the process in the cause. The judgment, whatever its form and effect, is the consummation and not the origin of the %7 F‘ lis pendens” and overreaches all conveyances pendente lite. Freeman on Judg., §§ 192, 193, 195; Chouteau v. Nuckolls, 20 Mo. 442.

5. A “ lis pendens” per se operates or creates a lien upon the property, commencing with the service of process and overreaches all alienations thereof, pending the suit. Watson v. Wilson, 2 Dana 407; Thoms v. Southard, 2 Dana 480; Scott v. McMillen, 1 Littell 302; Bullet v. Stewart, 3 B. Mon. 115; Tilford v. Burnham, 7 Dana 109; Scott v Coleman, 5 Mon. 73.

6. The statements of the petition in the “Cowgill will case,” in connection with those of the will itself, specifically devising the lands in controversy, are sufficient to point out said lands as a part of the property necessarily to be affected by the termination of said suit; and also sufficient to warn the whole world that they intermeddle with it at their peril; especially when the party, as in this case, had actual knowledge of the suit. Green v. Slayter,4 John. Ch. 39, 45; Murray v. Ballou, 1 John. Ch. 566; Freeman on Judg., §§ 196, 197, 198; Center v. P. & M. Bank, 22 Ala. 743; Leitch v. Wells, 48 Barb. 655; Inloes v. Harvey, 11 Md. 524.

7. A proceeding to set aside a will which specifically devises real estate, on the ground of fraud and undue influence in obtaining the same; as well as a suit to set aside a deed which conveys similar lands on similar grounds, may each, in some sense, be styled proceedings to determine the “status” of the paper or document in question; but each of them, also, involves the title to the property in question, and operates as a “ lis pendens” overreaching all “““ pendente” conveyance of the same, and one not more so than the other.

8. Decrees and judgments by consent or agreement are binding and conclusive upon the parties to the suit and those claiming under them, unless procured by fraud; and especially are compromises of family litigation favored and upheld by the courts. French v. Shotwell, 5 John. Ch. 564; Faust v. Birner, 30 Mo. 414; Monell v. Lawrence, 12 John 529; Stark v. Thompson, 3 Mon. 296; Story v. Hawkins, 8 Dana 13; Mitchell v. Long, 5 Littell 71; 2 Lead. Cas. Eq., 269, 270; Fletcher v. Holmes, 25 Ind. 458; Chandler v. Chandler, 13 Ind. 492; Beach v. Beckwith, 13 Wis. 21.

H. M. Pollard for respondent.

1. The suit to contest Cowgill's will was not such an action as is contemplated by the statute concerning lis pen dens, and hence purchasers before judgment cannot be affected with notice. 2 Wag. Stat., 905; Lyne v. Marcus 1 Mo. 410; Trotters v. Winchester, 1 Mo. 413; Swain v. Gilbert, 3 Mo. 347; 10 Bacon's Abr., 586, 587; 1 Story Eq Jur., 184, 238; Adams Eq., 175, 248; Young v. Ridenbaugh 67 Mo. 589; Jones v. Lusk, 2 Met. (Ky.) 359; King v. Bill 28 Conn. 593; Wag. Stat., p. 1368, § 29; Armstrong v. Farrar, 8 Mo. 627; Rush v. Rush, 19 Mo. 441; In re Duty's Estate, 27 Mo. 43

2. The judgment rendered in Buchanan circuit court decreed that the paper in controversy was the will of John Cowgill, deceased. It being his will, title to the land in controversy vested immediately on his death in Rachel and Henry Cowgill, and they had full right to incumber it. The will speaks from the death of the testator. Redfield on Wills, p. 379, § 2. If it were otherwise, where would title rest ad interim?

3. Rachel and Henry Cowgill having made and delivered to Pollard their deed to said premises, could not by a subsequent agreement authorize a judgment creating, or in any manner create, a lien which would cut out said deed. Turner v. Babb, 60 Mo. 350.

4. Parties to a suit at law, cannot, by agreement, after suit is removed out of the county in which it is originally brought, bind real estate situate therein by a judgment lien, so as to cut out bona fide purchasers pendente lite. The court has no jurisdiction and its judgment is void and can be attacked collaterally. 2 Wag. Stat., 1005, § 3; Benoist v. Murrin, 48 Mo. 52; Whittelsy Prac., 98, § 2; 2 Bacon's Abr., 618; Lindsey v. McClelland, 1 Bibb 262; Dodson v. Scroggs, 47 Mo. 287; Stone v. Corbett, 20 Mo. 354; Lindell v. Hannibal & St. Joseph R. R. Co., 36 Mo. 544; Valario v. Thompson, 3 Seld. 582; Brown v. Woody, 64 Mo. 547; Wade on Notice, § 354; White v. Rush, 58 Mo. 105; Bank v. Poyntz, 60 Mo. 531; McNair v. Biddle, 8 Mo. 264; Fithian v. Monks, 43 Mo. 521; Latimer v. U. P. R. R. Co., 43 Mo. 109. “No court, however great may be its dignity, can arrogate to itself the power of disposing of real estate without the forms of law; it must obtain jurisdiction of the thing in a legal mode.” Shriver's Lessee v. Lynn, 2 How. 60; Hickey v. Stewart, 3 How. 762; Windsor v. McVeigh, 93 U. S. 283; People v. Liscomb, 60 N. Y. 559; s. c., 19 Am. Rep. 220; Bigelow v. Forrest, 9 Wall. 339; Ex Parte Lange, 18 Wall. 163.

5. The judgment in said will suit decreeing a lien on said land was not one contemplated by the petition or pleadings in said suit. Hence the lis pendens could not relate back to the filing of the petition, and could have no force or effect prior to said judgment. So far as the pendency of a suit can affect others than the parties to the suit, or strangers, matters brought into it by an amended bill, will not have relation to the time of filing the original, but the suit will so far be considered as pendent only from the time of the amendment. Stone v. Connelly, 1 Met. (Ky.) 656; Mitford's Eq. Pl., 400; Clarkson v. Morgan, 6 B. Mon. 451; Freeman on Judg., p. 168; Pearson v. Keedy, 6 B. Mon. 130; Cromwell v. Clay, 1 Dana 578; Kennard v. Adams, 11 B. Mon. 105; Jones v. Lusk, 2 Met. (Ky.) 360; Dudley v. Price, 10 B. Mon. 88; Hartell v. Searcy, 32 Ga. 190; Davis v. Christian, 15 Gratt. 11; Griffith v. Griffith, 1 Hoff. Ch. 153; 1 Daniels Ch., 402; Carrington v. Brents, 1 McLean 167; Edmonds v. Crenshaw, 1 McC. Ch. 252; Green v. Slayter, 4 John. Ch. 47; Ray v. Roe, 2 Blackf. 258.

HOUGH, J.

This was an action of ejectment. Both parties claim title under John Cowgill, who, on March 25th, 1865, died seized of the land sued for, leaving a will by which he devised the same to Rachel and Henry Cowgill, which will was duly admitted to probate in the probate court of Livingston county on the 30th day of March, 1868. On the 29th day of October, 1868, Jeremiah Tingley and others instituted proceedings, under the statute, in the Livingston county circuit court against Rachel Cowgill and Henry Cowgill, and others, to set aside said will, and the process issued therein against Rachel and Henry Cowgill was duly served on them on the 30th day of October, 1868. This suit was removed by change of venue to Buchanan county, in the circuit court of which county, on the 25th day of May, 1875, it was adjudged by agreement that the paper writing admitted to probate in Livingston county on the 30th day of March, 1868, as the last will and testament of ...