Miller v. Bernecker

• Decision Date: 31 March 1870
• Parties: WENDELIN MILLER AND WIFE, Appellants, v. JOHN L. BERNECKER, Respondent.
• Court: Missouri Supreme Court

46 Mo. 194

WENDELIN MILLER AND WIFE, Appellants,

v.JOHN L. BERNECKER, Respondent.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

S. Reber and P. C. Morehead, for appellants.

R. S. McDonald, for respondent.

BLISS, Judge, delivered the opinion of the court.

This suit presents another phase of the controversy involved in the proceedings before us in Bernecker v. Miller, 44 Mo. 102. It is a proceeding in equity to enjoin the judgment in ejectment then affirmed. The fraudulent conduct of Bernecker in obtaining the judgment in partition in the Court of Common Pleas, described in Bernecker v. Miller, 44 Mo. 102, and in purchasing the land, is set forth in the petition as the ground for equitable relief. We held, when that case was before us, that the judgment could not be impeached collaterally, and this is an attempt to show, by a direct proceeding, such fraud in obtaining it that the court will prevent its execution. The petition sets forth the proceeding in the Land Court for partition instituted by Peterson and wife, and also the proceeding in the Court of Common Pleas by Bernecker, and alleges that the last proceeding was without the plaintiffs' knowledge; that if they were served with process, they did not understand its meaning; that they were ignorant and illiterate, neither understanding legal documents and proceedings, nor the English language, but that Bernecker was a shrewd and intelligent man, speaking both English and German. It also shows that after the service of process in the Peterson case, they relied on their brother-in-law, Bernecker, to advise them and take the proper steps to protect their interest in the land, and he, knowing their ignorance and confidence in him, undertook to do so, but, after the institution of the Peterson suit, conceived the design of obtaining their interest in the lands at a nominal price, by taking advantage of their ignorance and confidence in him, and in pursuance of said design instituted said proceedings in the Court of Common Pleas, and they, trusting to him to represent them, gave no heed to the matter; and he, in pursuance of his design to defraud them, concealed from them his proceedings, obtained the order of sale, and bid in the land at $5 per acre, when it was worth $100. It also shows that they were wholly ignorant of all those proceedings, and never, in fact, appeared in the suit or authorized any one to appear for them, but trusted wholly to Bernecker to represent them in the matter of dividing the land, and that they did not receive any part of the money, and have ever since kept possession.

The answer denies these allegations, but the evidence sustains them, and shows that the plaintiffs and some of the other heirs were wholly ignorant of what was going on; that they did not know that they were served with process in the proceedings in the Common Pleas, or that there were any such proceedings, until after the sale, and authorized no one to...