Moss v. Fitch

• Decision Date: 30 May 1908
• Citation: 111 S.W. 475,212 Mo. 484
• Parties: MOSS v. FITCH et al.
• Court: Missouri Supreme Court

111 S.W. 475

212 Mo. 484

MOSS v. FITCH et al.

Supreme Court of Missouri, Division No. 1.

May 30, 1908.

1. JUDGMENT—PROCESS TO SUSTAIN—PERSONAL SERVICE ON NONRESIDENT DEFENDANT.

Rev. St. 1899, § 582 (Ann. St. 1906, p. 608), providing for personal service of summons on defendants residing or being without the state, does not broaden the scope of section 575 (page 601), providing for service by publication, but simply provides another method for accomplishing the same thing, and, since a personal judgment cannot be rendered against a defendant served by publication under section 575, a personal judgment cannot be rendered on service under section 582.

2. DIVORCE—PROCESS TO SUSTAIN JUDGMENT—ALIMONY—PERSONAL JUDGMENT.

A divorce suit is a proceeding in rem, the res being the status of the plaintiff in relation to the defendant; and, where the only service on defendant is personal service outside the state, under Rev. St. 1899, § 582 (Ann. St. 1906, p. 608), it is improper to render a personal judgment against the defendant for alimony, and an execution sale of land belonging to defendant based on such judgment is void.

3. PLEADING—REPLY—DEPARTURE.

Where the petition, in an action by a divorced wife sought to set aside a deed and a mortgage executed by her former husband, on the ground that the same were executed with the fraudulent intent of preventing the enforcement of a judgment for alimony, and on the further ground that the mortgage had been paid, plaintiff was not entitled to set up by way of reply a cause of action to redeem from the mortgage.

4. SAME—SURPLUSAGE.

Matter contained in a reply inconsistent with the allegations of the petition will be regarded as surplusage.

5. DIVORCE—ALIMONY—FRAUDULENT CONVEYANCES—SUFFICIENCY OF EVIDENCE.

Evidence considered, and held insufficient to show that a deed and mortgage executed by a husband were made with the fraudulent intent to prevent the enforcement of the wife's judgment for alimony.

6. FRAUDULENT CONVEYANCES—BURDEN OF PROOF.

The party alleging that a conveyance was executed to defraud creditors has the burden of proving the fraud.

Appeal from Circuit Court, De Kalb County; Alonzo D. Burnes, Judge.

Action by Lora L. Moss against William M. Fitch and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Hewitt & Hewitt and Jas. T. Blair, for appellant. Spencer & Landis and Wm. M. Fitch, for respondents.

GRAVES, J.

Action for injunction and for the cancellation of a certain quitclaim deed and a certain deed of trust.

From December 2, 1900, to October 23, 1902, the plaintiff was the wife of defendant Oliver Grant Mills, by whom she had one child. At this latter-named date she was divorced from Mills, and had judgment for alimony in gross in the sum of $2,387.50, and for custody of the child. Judgment was by default. In this divorce proceeding the defendant Mills was not served with process in this state, but was personally served with summons in the state of Wyoming, under our statute providing for such a service. Prior to the marriage Mills was the owner of 75 acres of land in De Kalb county. After the marriage he purchased from Sarah R. Ross et al. for a home for himself and wife a 10-acre tract of land for $2,000, upon which there was an incumbrance of $400 due to James Ewart from Ross. In order to pay for this 10-acre tract, Mills borrowed $1,600 from the said Ewart. To secure this last-named sum, Mills and plaintiff, his then wife, executed a note and deed of trust, which covered both tracts of land. A. B. Chrisman was the trustee in this deed. Later Mills, by quitclaim deed, prior to the divorce, but about the time thereof, conveyed all the property to defendant Ekin. This deed was acknowledged before a notary public in Wyoming. Defendant Wm. M. Fitch was the successor in trust of Chrisman. After the judgment for alimony was entered, plaintiff caused execution to be issued and all the land sold, and the same was bought in by her prior to the institution of this suit.

The petition sets out most of the facts herein above stated. It then charges a conspiracy to defraud her and other creditors of Mills as having been entered into between Mills and Ekin, a resident of Wyoming, when the quitclaim deed was made, and charges said transaction as a fraud, and that Ekin really held the property for Mills. The remainder of the petition and the prayer thereof is as follows: "That thereafter, to wit, on the ____ day of March, A. D. 1903, the trust deed hereinbefore mentioned as having been executed by defendant Mills and this plaintiff to A. B. Chrisman for use of James Ewart being still outstanding and in the hands of said Ewart, and being then and there a legal debt and liability in the sum of $1,235, and no more, of and against said Oliver G. Mills, defendant; that said Mills in the further prosecution of his fraud against this plaintiff, and toward the consummation of his wicked, wrongful, and fraudulent design against the lawful right of this plaintiff, conspired with the defendant Lahrman and Landis to aid and assist him, the said Mills, whereby the said Lahrman and Landis, for a consideration to be paid by said Mills to said Lahrman and Landis, agreed to take the money which said Mills then and there promised to furnish sufficient to discharge the trust deed and debt hereinbefore mentioned due and owing to said James Ewart as aforesaid, and purchase said debt and security from said Ewart, and take a pretended assignment thereof in the name of said Lahrman, and foreclose said trust deed, and turn the proceeds from said sale over to said Mills, and then and thereby defeat the lawful rights of plaintiff and defraud her of the title to said lands. Plaintiff says that in pursuance of and toward the fulfillment of said agreement and consummation of said fraud that said Landis paid said money to said Ewart and took said security in the name of said Lahrman, and the said Lahrman, toward the fulfillment of his unlawful, wicked, and fraudulent agreement, is now pretending to be the lawful owner of said debt and security aforesaid, and, in the further prosecution of said wicked and fraudulent and unlawful agreement so entered into as aforesaid between said Lahrman, Mills, and Landis, said Lahrman, under and by virtue of the authority vested in the trustee and his successors in trust mentioned in said trust deed, has appointed one William M. Fitch as successor in trust to said Chrisman, and said Fitch as said trustee is, at the instance and request of said Lahrman, the pretended owner of said debt and security, threatening to sell all of said lands under said trust deed, and is now advertising said lands for sale in the De Kalb County Democrat, a newspaper printed and published in the city of Maysville, De Kalb county, Mo., as will more fully appear by a copy of said advertisement hereto attached, marked `Exhibit B' and made a part hereof, and will, if not restrained from so doing, sell said lands on the 31st day of August, A. D. 1903, and then and there and thereby cast a cloud upon the title of this plaintiff's said lands, and irreparable injury and damage would thereby result to this plaintiff. * * * She is without adequate and efficient remedy at law. Wherefore plaintiff prays that a restraining order and injunction be issued directed against said Wm. M. Fitch, trustee as aforesaid, and defendant Lahrman and each of them, and that they and each of them, their agents, and representatives, be enjoined and restrained from making said sale, or selling, assigning, or disposing of said debt and security, or in doing anything further in the premises toward the consummation of their fraudulent acts until this cause can be heard upon its merits, and that upon a hearing of said cause that said injunction and restraining order may be made perpetual, and that the aforesaid quitclaim deed be declared null and void, held for naught, and that said debt mentioned and described in the trust deed be declared paid off and discharged and the lien of said trust be declared discharged and satisfied and held for naught, and for all such other orders, judgments, and decrees granting relief as shall be meet and proper in the premises."

Defendants Fitch, Lahrman, Ekin and Landis file answer in which they say: (1) They admit the marriage of plaintiff and Mills on the date alleged. (2) They deny that there has been a legal dissolution of the marriage, because of certain defects in the proceedings not necessary to mention at this point. (3) They aver the judgment for alimony to be void. (4) They admit that Mills at one time had title to all the property described. (5) They admit the execution of the deed of trust as pleaded, and aver that it is a subsisting lien upon the land, and in this connection further say: "These defendants, further answering, expressly deny that said Lahrman and Landis or either of them assisted the said Oliver G. Mills, directly or indirectly, to pay off the said note secured by said trust deed, but that defendant Landis himself purchased the said note from James Ewart for value received out of his own funds; that afterwards he assigned the said note to said Lahrman, for value received; and that the said Lahrman then became the absolute owner thereof, and that neither the said Mills nor the said Ekin had any interest in the said note whatever." (6) They aver that A. B. Chrisman refused to act as trustee, and that under the power granted by the deed of trust Lahrman appointed defendant Fitch as trustee, who advertised and sold the premises, and that defendant Ekin, being the highest and best bidder, became the purchaser at the sale. (7) They admit that the execution sale was made, and that deed was made to plaintiff, but aver that the judgment execution and all proceedings thereunder were void, and that plaintiff, in trying to enforce said judgment, is doing so in violation of section 1, art. 14, Const. U. S., and of the Constitution of...