Murphy v. De France
| Decision Date | 19 May 1890 |
| Parties | Murphy v. De France, Appellant |
| Court | Missouri Supreme Court |
Appeal from Adair Circuit Court. -- Hon. Andrew Ellison, Judge.
Reversed.
Blair & Marchand for appellant.
(1) Fraud and collusion cannot be properly charged in general terms; the specific acts must be alleged. Bliss on Code Pleading, secs. 210, 213, 339; Hill v. Miller, 36 Mo. 182; Fox v. Webster, 46 Mo. 181; Smith v Sims, 77 Mo. 269; McGindley v. Newton, 75 Mo 115; Duffy v. Byrne, 7 Mo.App. 417. (2) The fraud to authorize courts of equity to set aside a judgment must have been committed in the procurement of the judgment; they will not interpose because the cause of action was vitiated by fraud; that is a matter of defense; unless the defense is prevented by the fraudulent conduct of the other party no cause of action is stated for setting aside the judgment in the dower suit. Cadwaledar v. Atchison, 1 Mo. 659; Risher v. Roush, 2 Mo. 77; West v. Wayne, 3 Mo. 16; Yantis v. Burdett, 3 Mo. 457; Collier v Eastman, 2 Mo. 145; Miles v. Jones, 28 Mo. 87; Reed v. Hansard, 37 Mo. 199; Harris v. Terrill, 38 Mo. 421; Martin v. Luthewitte, 50 Mo. 58; Ward v. Quinlion, 57 Mo. 425; Payne v. O'Shea, 84 Mo. 129; Smith v. Sims, 77 Mo. 269. (3) The petition shows on its face that plaintiff's cause of action as to setting aside the sale of the real estate is barred by the five years' statute of limitations. The statute of limitations can be raised on demurrer or appeal. State v. Bird, 22 Mo. 470; Henock v. Chaney, 61 Mo. 129; McNair v. Lott, 25 Mo. 182; Zane v. Zane, 5 Kan. 134; Matthews v. Southeimer, 39 Miss. 174; Miller v. Dawson, 26 Ia. 186. (4) Fraud will not be presumed in any case when the facts stated or proved consist as well with honesty as dishonesty. Rumbolds v. Parr, 51 Mo. 592; Henderson v. Henderson, 55 Mo. 534; Ames v. Gilmore, 59 Mo. 537; Dallam v. Renshaw, 26 Mo. 533; Chapman v. McIlwrath, 77 Mo. 38; Page v. Dixon, 59 Mo. 43. (5) Plaintiff could have appealed from the order of sale and report, and not having done so she cannot seek relief in equity except for fraud. Wolf v. Robinson, 20 Mo. 459; Rugle v. Webster, 55 Mo. 246; Ames v. Gilmore, 59 Mo. 537; Grayson v. Weddle, 63 Mo. 523.
O. D. Jones for respondent.
(1) The evidence in the cause on the trial is not sufficiently preserved in the bill of exceptions, for it calls for such copies of the records of the probate court and deeds "which the plaintiff or defendant shall require." It cannot be left to agreement of counsel what shall go in a bill of exceptions. Heim v. Grand Lodge, 59 Mo. 581; Leftwich v. Leeon, 4 Wall. 187; Lyon v. Thompson, 16 Ia. 62; Morrison v. Lehew, 17 Mo.App. 633. (2) The decree of the lower court is for the right party on the law. Chandler v. Dodson, 52 Mo. 128; Grundy v. Brown, 86 Mo. 253. (3) At the date of the judgment in April, 1880, under which defendant claims plaintiff had been in possession twelve years, the statute of limitations conferred title. Nelson v. Broadhack, 44 Mo. 496; Wall v. Sheldon, 47 Mo. 282; Barr v. Otto, 56 Mo. 444; Fulkerson v. Mitchell, 82 Mo. 13. (4) There is no estoppel against plaintiff in the judgment in the cause assigning dower. (5) Plaintiff's petition is sufficient. All the lands were included in the suit to assign dower. "It was all one transaction," and "one general right was claimed." Ferguson v. Patchall, 11 Mo. 267; Tucker v. Tucker, 29 Mo. 350; Rinehart v. Long, 95 Mo. 367. Petition must plead facts not evidence. Pier v. Heinrichoffen, 52 Mo. 333. By pleading to the merits defendant waives formal objections. Grove v. City, 75 Mo. 672; State v. Sappington, 68 Mo. 454. (6) Every fact found by the court is distinctly at issue in the pleadings and is sustained by the evidence. (7) Collusion among bidders at judicial sales to suppress bidding avoids them. Neal v. Stone, 20 Mo. 294; Durfee v. Moran, 57 Mo. 374; Wagner v. Phillips, 51 Mo. 117; Dover v. Kennedy, 44 Mo. 145. (8) A judgment procured by fraud, of such a nature that the party could not know or meet it at the time, will be set aside even after it has been paid. Miles v. Jones, 28 Mo. 87.
-- Nancy Murphy, the plaintiff, is the widow of Benjamin Murphy, who died in 1855, the owner of the sixteen acres of land now in suit.
Letters of administration were issued to the plaintiff upon the estate of her deceased husband, and she procured an order to sell real estate to pay debts, and then resigned. Ringo was appointed administrator de bonis non, and, by virtue of the order of sale, sold the sixteen acres of land, and the plaintiff became the purchaser at the price of four hundred dollars, and she received a deed dated the fourth of February, 1868. Ringo resigned in 1869, and thereupon the probate court ordered the estate into the hands of Chandler, the public administrator. Chandler made two applications to the probate court for an order to sell the same real estate to pay the debts of the estate, both of which were refused; but an order was made, upon a third petition, filed in 1874. The sixteen acres, and also an eighty-acre tract, were sold under this order, and the defendant De France became the purchaser, at the price of one hundred dollars, and received a deed, dated February 1, 1875.
In 1876, the defendant De France commenced a suit in the circuit court against the plaintiff in the present suit to have dower assigned to her in the sixteen acres and the eighty acres. That suit was tried in 1880, the trial resulting in the appointment of commissioners, who set off to her five and one-half acres of the sixteen acres as her dower in the ninety-six acres. The report of the commissioners was approved and a writ of restitution awarded De France, by which he was put into possession of the property not set off to the widow. De France then conveyed forty-four-hundredths of the land to defendant Dodson.
The plaintiff, claiming to own the sixteen acres, both as a homestead and by virtue of the administrator's sale to her, commenced this suit in equity in 1885, praying that the public administrator's deed to De France, the judgment in the case of De France against her and the deed to defendant Dodson be set aside, and for naught held. The court found the issues for plaintiff, and entered a decree according to the prayer of the petition, to reverse which defendant sues out this appeal.
The theory of the plaintiff's petition is that De France and Dodson procured the order of sale, the sale and the approval thereof by a fraudulent combination with Guy Chandler, the public administrator, and that all of these proceedings to, and including the judgment in, the dower case were parts of one scheme to defraud the plaintiff out of her property. The petition then makes a general charge that the judgment in the suit of De France against Nancy Murphy for assignment of dower is void, because collusively and fraudulently obtained. The answer sets up that judgment as a bar to this suit, and states that Mrs. Murphy filed answer in that case, setting up, as a defense thereto, all of the matters stated in her petition in this case, and claiming the sixteen acres both as a homestead and by virtue of the administrator's sale to her. The reply concedes that Mrs. Murphy defended that suit, but says none of the issues to be tried in this case were tried in that one; that her attorney told her the case would not be tried at the April adjourned term, 1880; that it was tried at that time; that no witnesses were called, and that her attorney betrayed his trust and colluded with De France.
From the evidence adduced on the trial, it appears the debts of the Murphy estate had not been paid at the time it was ordered into the hands of Chandler, the public administrator, which was in 1869. The defendant Dodson owned one of these debts, and De France, as an attorney, represented the others, and afterwards became the owner of them. These debts amounted to two thousand dollars, or over, and the evidence is to the effect that the estate was insolvent. De France and Dodson were of the opinion that the prior administrator's sale of the sixteen acres to Mrs. Murphy was void, for reasons not necessary to be stated. Acting upon the suggestions made in Bank v. White, 23 Mo. 342, they asked, and eventually procured, the resale on the third petition of the public administrator. At the time of procuring this order, De France represented to the probate court that he would bid one thousand dollars for the ninety-six acres, but he only bid one hundred dollars, and Chandler declined to report the sale until De France agreed to, and did, allow him his commission on one thousand dollars.
The claims held by De France and Dodson were not all of the same class, and they agreed in writing that, as between themselves, their claims should stand on the same footing, and that one of them would bid upon the property and buy it for all, unless some other person should bid enough to pay the debts. Under this arrangement, De France became the purchaser, and prosecuted the suit for the assignment of dower. There is not a particle of evidence showing, or tending to show, any misconduct of the attorney who represented Mrs. Murphy on that trial. She called him to the witness stand on the trial of this case, and he stated that he sent for her when the dower case was called for trial, and that she came to the court house when the documentary evidence had been introduced; that the administrator's deed to her being excluded, and the one to De France admitted, by the court, he spoke to Chandler, who was present, but that he declined to testify that he would not report the sale until he was paid fifty dollars' commission, and that Chandler was not called as a witness on that trial.
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