Metcalf v. American Sur. Co. of N. Y.

• Decision Date: 10 July 1950
• Docket Number: No. 1,No. 41717,41717,1
• Parties: METCALF et al. v. AMERICAN SURETY CO. OF NEW YORK et al
• Court: Missouri Supreme Court

Page 526

232 S.W.2d 526

360 Mo. 1043

METCALF et al. v. AMERICAN SURETY CO. OF NEW YORK et al.

No. 41717.

Supreme Court of Missouri, Division No. 1.

July 10, 1950.

Rehearing Denied Sept. 11, 1950.

Amanda A. Metcalf, and Oscar B. Elam, pro sese.

Arthur N. Adams, Arthur N. Adams, Jr., Kansas City, for respondent, Elmer L. Parker. George T. Aughinbaugh, Hunt C. Moore, Hale Houts and Hogsett, Trippe, Depping, Houts & James, all of Kansas City, for respondents American Surety Co. of New York, Hunt C. Moore, Administrator de bonis non of the Estate of Nell M. Beeching, deceased, and Perrin D. McElroy, Administrator of the Estate of E. Grant Metcalf, deceased.

VAN OSDOL, Commissioner.

The trial court rendered judgment of dismissal of plaintiffs' petition, denominated 'Slander of Title,' in which petition plaintiffs had sought to recover $12,000 damages; and prayed for the further relief of divesting of title to described real estate out of defendants and the vesting thereof in plaintiffs. Plaintiffs have appealed.

Res judicata is the decisive issue for review.

The petition in the instant action alleged that plaintiff Amanda A. Metcalf was the owner of described property, realty and personalty; that July 30, 1940, Amanda A. Metcalf entered into trust agreement with, and conveyed the real estate by warranty deed to Hattie B. Kelly, who as grantee had no power to convey the property during the two-year period of the trust agreement; that plaintiff Amanda A. Metcalf performed her obligations under the agreement; that Nell M. Beeching, now deceased, in violation of the trust agreement and with notice of the rights of plaintiff Amanda A. Metcalf, had procured a deed from Hattie B. Kelly with the willful and wanton purpose and intent of defrauding plaintiff Amanda A. Metcalf; that Hattie B. Kelly died during the two-year period of the trust agreement; that Nell M. Beeching, with the intent to defraud plaintiff Amanda A. Metcalf, set up a claim of ownership and obtained possession and control of the property to the damage of plaintiff; and that Nell M. Beeching, in furtherance of her wrong, had conveyed the described real property to defendant Elmer L. Parker.

(By the trust agreement, Hattie B. Kelly agreed to pay delinquencies owing by plaintiff Amanda A. Metcalf upon a debt secured by deed of trust on the described property; and to hold, manage and control the property and keep it in repair for a period of two years. The title to the property was to be reconveyed to plaintiff Amanda A. Metcalf upon her repayment of the amounts which Hattie B. Kelly should 'pay out on account of said property,' but, if Amanda A. Metcalf should be unable to repay, 'then and in that event, this contract shall be null and void and said property shall become the absolute property' of Hattie B. Kelly).

Plaintiffs joined E. Grant Metcalf, administrator of the estate of Nell M. Beeching, deceased; and the administrator's surety, American Surety Company of New York, as parties defendant. E. Grant Metcalf, personally, and Tom H. Kelly, alleged to be the sole heirs-at-law of Hattie B. Kelly and Nell M. Beeching, now deceased, were also made parties defendant. (E. Grant Metcalf has died during the pendency of this appeal, and the administrator of the estate of E. Grant Metcalf, and the administrator de bonis non of the estate of Nell M. Beeching have been respectively substituted for defendant E. Grant Metcalf, personally and as administrator.)

In the trial court, defendant E. Grant Metcalf, personally and as administrator, and defendant Surety Company filed motions to dismiss plaintiffs' petition on the stated grounds (1) the petition fails to state a claim upon which relief can be granted, and (2) the 'matters, facts and issues attempted to be alleged by Plaintiffs were decided adversely to Plaintiffs' in a former action, and are therefore res judicata. The defendant Parker by answer admitted the conveyances of the described real estate from Amanda A. Metcalf to Nell M. Beeching, and from Nell M. Beeching to himself, Elmer L. Parker; admitted and denied various other allegations of the petition; and further alleged by an additional pleading, denominated 'Cross-Petition,' the judgment in the former action; and prayed that the plaintiffs' case be dismissed.

Plaintiffs filed a reply to the several pleadings of defendants by which reply plaintiffs denied each and every allegation of the answer and motions; and further alleged that the judgment rendered in the former action was void and subject to collateral attack because the pleadings in the former action conclusively show the court did not have the authority to afford relief granted.

The cause came up in the assignment division of the Jackson County Circuit Court upon the pleadings including plaintiffs' petition, the several motions to dismiss plaintiffs' petition, the separate answer of defendant Parker, and the reply filed by plaintiffs. The petition, the answer and the reply filed, and the judgment rendered in the former action were introduced into evidence. The court sustained the several motions to dismiss plaintiffs' petition; and entered a judgment of dismissal, from which judgment of dismissal plaintiffs have perfected their appeal, as stated supra.

In the former action, Amanda A. Metcalf was plaintiff; and Nell M. Beeching, and others, were defendants.

Plaintiff Amanda A. Metcalf, by her petition filed in the former action, pleaded the trust agreement, and the warranty deed from plaintiff to Hattie B. Kelly; and alleged a relation of trust and confidence existed between plaintiff and Hattie B. Kelly and defendant Nell M. Beeching. Plaintiff further alleged that Hattie B. Kelly had entered into the trust agreement with the secret purpose and intent of substituting defendant Nell M. Beeching as trustee under the agreement; that the defendants, including the defendant Nell M. Beeching, pursuant to a 'scheme and conspiracy' among them, caused Hattie B. Kelly to enter into said agreement in bad faith, and with the secret purpose of permitting defendants to control and operate the property; that the said Hattie B. Kelly did secretly execute a deed which was filed of record after her death, naming Nell M. Beeching as grantee; that the contract was entered into, 'in furtherance of said scheme and conspiracy,' to deceive plaintiff and to acquire the property; that the transfer of said property to defendant Nell M. Beeching was concealed from the plaintiff and the conveyance was withheld from recordation; that because of these wrongs plaintiff has been deprived of the income, use, management and control of the property; that defendant Nell M. Beeching has furthered claims for fictitious amounts against plaintiff and her property; and that plaintiff's title to the property has had a cloud cast upon it by reason of the false and malicious claims of the defendants. Plaintiff prayed for a judgment against defendants for actual damages in the sum of $10,500 and for punitive damages, $10,500; and for a judgment 'that no defendant has any right, title, interest or estate in said real estate * * * and that defendants forthwith quit and surrender up to plaintiff possession' of the property.

Defendant Nell M. Beeching filed answer admitting the deed by plaintiff to Hattie B. Kelly and the trust agreement entered into by them, and alleged that, prior to her death, Hattie B. Kelly had conveyed the property to defendant Nell M. Beeching. All other allegations of the petition were denied. Defendant Nell M. Beeching further alleged that, in compliance with the trust agreement, Hattie B. Kelly had received and expended monies as set forth in an itemized account; that Nell M. Beeching had succeeded to all of the right, title and estate of Hattie B. Kelly and she, Nell M. Beeching, was entitled to a decree that she was the fee simple owner of the property or, in the alternative, she should be entitled to have the amount of money paid to her which had been expended by Hattie B. Kelly under the trust agreement, upon the conveyance of the property by her, Nell M. Beeching, to plaintiff. Defendant Nell M. Beeching prayed the court to try, ascertain and determine the title to the property, and for a decree determining her to be the sole owner.

Plaintiff, Amanda A. Metcalf, filed reply alleging that defendant Nell M. Beeching had no capacity to sue for affirmative relief because in her answer she had stated no facts justifying her allegation that she was the successor to the interests of Hattie B. Kelly. The plaintiff expressly withdrew from the court's consideration the issue of damages suffered as a result of the recordation of the deed of Hattie B. Kelly to defendant Nell M. Beeching. Plaintiff further expressly withdrew the allegation of her petition relating to certain alleged fictitious items in the itemized account stated in the answer. The reply further alleged that the several answers of defendants are 'sham answers and made in bad faith * * * in aid of and under and in pursuance of the said scheme and conspiracy alleged in the petition'; and that the tender of the reconveyance of the property by defendant Nell M. Beeching was in bad faith and with knowledge that defendants did not have the property in their possession, or any substantial part thereof, and have sold or converted the same to their own use. And the reply concluded with a prayer that the court determine the right, title, interest and estate of plaintiff and the several defendants, and for damages, $10,500 actual and $10,500 punitive, and costs.

Evidence having been heard in the trial of the...