Mitchell v. McClelland

• Decision Date: 01 October 1957
• Docket Number: Nos. 22549,22550,s. 22549
• Citation: 306 S.W.2d 75
• Parties: Odess MITCHELL, Respondent, v. W. Frank McCLELLAND et al., Appellants.
• Court: Missouri Court of Appeals

Page 75

306 S.W.2d 75

Odess MITCHELL, Respondent, v. W. Frank McCLELLAND et al., Appellants.

Nos. 22549, 22550.

Kansas City Court of Appeals, Missouri.

Oct. 1, 1957.

O. J. Adams, Kingston, Frank L. Pulley, Cameron, for appellants.

Vernon N. Kneib, Stanley I. Dale, St. Joseph, for respondent.

HUNTER, Judge.

This is an appeal from a judgment rendered April 9, 1956, in a partition suit.

On April 29, 1954, suit No. 3669 was filed in Clinton County by Hooker N. Tospon, administrator of the estate of Florence Doddridge, deceased, against W. Frank McClelland on a promissory note in the amount of $4,178.11. Also, on April 29, 1954, as a result of plaintiff's attachment bond and affidavit in which it was charged that McClelland was about to fraudulently divest himself of his real estate to defraud his creditors which charge we will later examine, a writ of attachment in aid of suit was issued by the Clerk of Clinton County, directed to the sheriff of Caldwell County to attach W. Frank McClelland's lands, etc. Under date of July 9, 1954, the sheriff's return of the writ was that it was served by recording on July 8, 1954, with the Recorder of Deeds of Caldwell County, Missouri, an abstract of attachment of defendant's 1/3 undivided interest in a 180 acre farm located in Caldwell County. On July 19, 1954, judgment was rendered in that case in the sum of $4,178.11 with interests and costs. That same day the judgment was filed with the recorder of deeds' office in Caldwell County.

By two warranty deeds dated January 25, 1949, McClelland and his wife purported to deed McClelland's 1/3 interest in the farm to Tinsley Short, brother of Mrs. McClelland, acting as a straw party, who in turn purportedly on the same date deeded it back to McClelland and his wife, as tenants by the entirety. These deeds were not recorded until July 21, 1954.

On January 4, 1954, the instant suit was brought in Caldwell County by Odess Mitchell for partition of the 180 acre farm. On October 4, 1955, she filed an amended petition alleging ownership of the farm to be as follows: Plaintiff (Mitchell) 1/3; defendant Tospon 1/3; and defendant W. Frank McClelland and his wife 1/3, subject to a deed of trust on the interest of McClelland and his wife securing to O. J. Adams, the payment of a note for $500, date June 15, 1954, and recorded July 21, 1954. Adams was named and served as a party defendant.

On September 17, 1955, Tospon, as administrator of the estate of Florence Doddridge, deceased, intervened and filed a petition to set aside the two warranty deeds as fraudulent and void as against the earlier judgment lien creditor, the Doddridge estate, alleging that the McClellands together with Short and Adams, who prepared the deeds and took the acknowledgments thereon, formed a conspiracy to defraud the judgment creditors out of a valid attachment lien, and requested that the two deeds be set aside; that the farm be ordered sold, and that the 1/3 of the proceeds (representing W. Frank McClelland's interest) of the sale up to the amount of the judgment-lien satisfy the judgment of the estate of Florence Doddridge. On behalf of the estate he also filed a separate answer to plaintiff's amended petition denying McClelland's ownership by entirety and denying Adams interest in the land under his deed of trust.

Apparently in accordance with the wishes of all the parties to the partition suit and by order of court the 180 acre farm was sold to a stranger to this litigation, and 1/3 of the proceeds ($3,578.49) of that sale held for the court's decision.

The case was tried before the court. On April 9, 1956, the court made its findings and judgment as follows:

'That on the Eighth day of July, 1954, at 10:10 a. m., the Estate of Florence Doddridge did cause the Sheriff of Caldwell County, Missouri, to file in the Recorder of Deeds office in and for Caldwell County, Missouri an abstract of attachment validly issued on April 29, 1954, by the Circuit Clerk of Clinton County, Missouri, in the case entitled Hooker N. Tospon, Administrator of the Estate of Florence Doddridge, plaintiff, versus W. Frank McClelland, defendant, Case Number 3669;

'That said Writ of Attachment validly established a lien on the 8th day of July, 1954, and at this time, on the real estate then held by record title in W. Frank McClelland, said real estate in Caldwell County, Missouri, being described as follows: (Description omitted.)

'That said Writ of Attachment was validly obtained in aid of suit in the amount of Four Thousand One Hundred Seventy-eight and Eleven Hundredths dollars ($4,178.11) and interest at the rate of six per cent per annum from December 26, 1951 to date of satisfaction and costs. That the judgment against W. Frank McClelland is wholly unpaid and unsatisfied.

'That defendants, W. Frank McClelland, Maude S. McClelland and Tinsley Short did place of record in the Recorder of Deeds office of and for Caldwell County, Missouri, two deeds of conveyance concerning the above described real estate and said deeds are described as follows:

'One dated July 25, 1949 from W. Frank McClelland and Maude S. McClelland to Tinsley Short, filed for record on July 21, 1954 in Book 127 at Page 558.

'A Second deed dated July 25, 1949 from Tinsley Short to W. Frank McClelland and Maude S. McClelland filed for record on July 21, 1954 in Book 127 at Page 559.

'That defendants did place a Deed of Trust on record in the Recorder of Deeds office of and for Caldwell County Missouri, concerning above said real estate, deed dated June 15, 1954, in the name of Harry A. Gilbert, Trustee for O. J. Adams, securing a sum of Five Hundred Dollars ($500.00) as shown in Book 62 at Page 543 and filed July 21, 1954.

'It is therefore adjudged and decreed that the deeds of conveyance recorded in Book 127 at page 588 and in Book 127 at page 559 and the Deed of Trust in Book 62 at page 543 in the Recorder of Deeds office of and for Caldwell County, Missouri, above described, purporting to convey title out of W. Frank McClelland concerning the property in Caldwell County, Missouri, described as follows: (Description omitted) be and the same is vacated, set aside and annulled, and declared of no force and effect.

'It is further adjudged and decreed that one-third of the proceeds of the partition sale effecting the property described above be by the Sheriff of Caldwell County, Missouri, delivered or paid to, and into, the Clerk of the Circuit Court of and for Clinton County, Missouri, to be there applied to the case entitled; Hooker N. Tospon, Admr. of the Estate of Florence Doddridge, plaintiff vs. W. Frank McClelland defendant, Case Numbered 3669.'

From this judgment in favor of Intervenor Tospon, Administrator, (respondent-herein), defendants-appellants, McClellands and Adams have appealed to this court.

We are met at the outset with respondent's suggestion in his brief that title to real estate is directly involved, and that the Supreme Court has exclusive jurisdiction of this appeal.

However, title to the real estate in question is now in a stranger to this suit as a result of the partition sale. No one questions the validity of that sale or the present ownership of the land. It rests beyond recall in that purchaser. The present dispute concerns 1/3 of the proceeds of the partition sale; namely $3,578.49. In order to determine who is entitled to that money the trial court undertook to determine the validity of an attachment and lien on certain land and in its judgment declared certain deeds and a deed of trust void. In so doing, the court did not affect or change the purchaser's title thereto. It left the present title in status quo. Thus, the only effect of the court's judgment in its final analysis is to determine ownership to 1/3 of the money proceeds of a partition sale, and its other action at most was only incidental to that determination. We necessarily conclude that title to real estate is not involved within the meaning of Art. 5, sec. 3 of the Constitution, V.A.M.S. and this court has jurisdiction of the appeal. Turley v. Matthews, Mo.Sup., 172 S.W.2d 936; Pursley v. Pursley, Mo.Sup., 213 S.W.2d 291; Burch v. Horn, Mo.Sup., 152 S.W.2d 88, 135 A.L.R. 1063; Leach v. Armstrong, Mo.Sup., 149 S.W.2d 865; Utz v. Dormann, Mo.Sup., 31 S.W.2d 991; Adams v. Adams, 352 Mo. 389, 177 S.W.2d 483.

Turning to the merits of the appeal, both appellants and respondent agree that broadly stated the principal questions to be decided are (1) The validity of the lien respondent claims to have obtained as a result of the attachment proceedings and judgment in suit No. 3669; and (2) whether or not there was sufficient and satisfactory evidence of fraud adduced to support the findings and judgment of the trial court thereon, and of this court, on appeal.

Appellant Adams also contends that the validity of the deed of trust, securing his $500 note for alleged legal services, on the undivided interest of W. Frank McClelland and Maude S. McClelland was not assailed by respondent in his intervening petition and was not an issue in the case, and that the trial judge erred in declaring it void notwithstanding no such judgment was requested. Upon examination of the pleadings it is clear that respondent did not charge that this deed of trust was...