Overton v. Overton

• Decision Date: 31 March 1931
• Docket Number: 29365
• Citation: 37 S.W.2d 565,327 Mo. 530
• Parties: O. S. Overton, Appellant, v. R. C. Overton et al
• Court: Missouri Supreme Court

37 S.W.2d 565

327 Mo. 530

O. S. Overton, Appellant, v. R. C. Overton et al

No. 29365

Supreme Court of Missouri

March 31, 1931

Rehearing Overruled March 31, 1931.

Appeal from Webster Circuit Court; Hon. C. H. Skinker Judge.

Reversed and remanded.

D. S Mayhew and W. J. Owen for appellant.

(1) Courts of equity have jurisdiction to set aside, vacate and annul judgments obtained through fraud, accident or mistake, if the judgment in question is against good conscience. 21 C. J. 88, sec. 64; 34 C. J. 462, 465, secs. 724, 730; 2 Pom. Eq. Juris. (3 Ed.) sec. 856; Tiedeman on Eq. Juris., sec. 193; 16 Am. & Eng. Ecyl. Law 383; 1 Black on Judg., sec. 381; 3 Freeman on Judg. (Last Ed.) sec. 1246, p. 2593; Wilson v. Boughton, 50 Mo. 17; Case v. Cunningham, 61 Mo. 434; Panhandle Lumber Co. v. Bancour, 135 P. 560; Christy v. Railroad Co., 214 F. 1016; Simpson v. Simpson, 112 N.E. 276; Leighton v. Bruce, 156 N.W. 285; Dunning Bros. v. Johnson, 190 P. 829; Busey v. Moraga, 62 P. 1082. (2) Plaintiff's negligence, if any, in failing to discover that the twelve acres here in question were included in the partition proceedings, and his failure to plead that he was the sole owner thereof in fee, is excusable, and is not a bar to the maintenance of this suit, it appearing from the evidence that said negligence, if any, was not a violation of a positive legal duty owing by him to any of the parties to said proceedings, and it also appearing that defendant, nor any of them, have been prejudiced by such negligence, -- and it also furhter appearing that defendants herein (plaintiffs therein) were guilty of wrongdoing and negligence in including said twelve acres in said partition proceedings. 2 Pom. Eq. Juris. (2 Ed.) sec. 856; Tiedeman's Eq. Juris., sec. 193; 3 Freeman on Judg. (Last Ed.) sec. 1204, p. 2502; 21 C. J. 89, sec. 64; 34 C. J. sec. 730, p. 464, and note 72; Troll v. Sauerbrun, 114 Mo.App. 323; Pennington v. Ry. Co., 284 Mo. 22; Panhandle Lumber Co. v. Bancour, 135 P. 558; Camden v. Coal & Coke Co., 145 S.E. 575; Taylor v. Godfrey, 59 S.E. 631; Hutchinson v. Bambas, 94 N.E. 990; Bacon v. Bacon, 89 P. 317; Wood v. Oil Co., 220 Mo.App. 1017; 1 C. J. sec. 175, p. 1170; Soule v. Bacon, 89 P. 324; Dunning Bros. v. Johnson, 190 P. 829; Boulden v. Wood, 53 A. 911; Grig v. Loveland, 62 P. 830; Stowell v. Eddred, 26 Wis. 504; San Antonio Bank v. McLane, 70 S.E. 201; Inst. Bldg. & Loan Assn. v. Edwards, 86 A. 962; Dobson v. Winner, 26 Mo.App. 329; Lyle v. Shinnabarger, 17 Mo.App. 66; Koontz v. Bank, 51 Mo. 275; Mo. Pac. Ry. Co. v. Saddlery Co., 215 Mo.App. 277; Chrisman v. Linderman, 202 Mo. 605; Kelly v. Ward, 60 S.W. 311; Langford v. Phillips, 227 P. 413; San Antonio Nat. Bank v. McLane, 70 S.W. 201. (3) The wrongful act and the negligence of plaintiffs and their attorney (in the partition suit) in including said twelve acres in said suit, estops them from taking advantage, in this suit, of the negligence of plaintiff herein in not bringing forward in said partition suit his title and equities to said twelve acres. San Antonio Nat. Bank v. McLane, 70 S.W. 201; Cases cited under Point 2; Western Nat. Bank v. Paul, 49 A. 830; Gates v. Steele, 20 A. 474; Calwallader v. McClay, 55 N.W. 1054; Wood v. Oil Co., 220 Mo.App. 1017. (4) The inclusion of the twelve acres in the partition suit was a fraud in law as to plaintiff herein, defendant therein. Murray v. Speed, 153 P. 181; Dunham v. Smith, 81 P. 427; Gates v. Steele, 20 A. 474. (5) The acceptance and receipt thereof by plaintiff herein of the share or part of the proceeds of partition sale found by the court to be due to him as his share or part in the land sold in partition did not constitute a ratification of the sale and judgment in partition, because of want of information and knowledge at that time of the inclusion of said twelve acres in the judgment and sale. 21 C. J. sec. 157, p. 1156; Garesch v. Levering Inv. Co., 146 Mo. 452; Frederick v. Railroad Co., 82 Mo. 402; Starr v. Bartz, 219 Mo. 47. (6) Plaintiff is not estopped from asserting herein his title to said twelve acres, and his right to the relief herein prayed and demanded cannot be defeated, or denied to him, on the ground of his alleged negligence, because the evidence shows conclusively that he had no information or knowledge that said twelve acres were included in the partition proceedings until after partition sale and conveyance to defendants Landis, and because the evidence utterly fails to show that defendants or any of them acted upon any thing done or said, or omitted to be done or said, by plaintiff herein, defendant therein. Oldham v. Wade, 273 Mo. 246; Burke v. Murphy, 275 Mo. 411; Matthews v. Van Cleave, 282 Mo. 33; Thompson v. Lindsay, 242 Mo. 76; De Lashmutt v. Teetor, 261 Mo. 412. (7) The judgment in the ejectment suit is not res judicata of any of the issues in this suit, and is not a bar to the maintenance of this suit, no equitable defense having been pleaded or prayed in that suit. Crowel v. Crowel, 196 Mo. 345; Sampson v. Mitchell, 125 Mo. 230; Callahan v. Davis, 125 Mo. 35; Swope v. Webber, 119 Mo. 564; Hutchinson v. Patterson, 226 Mo. 181; Avery v. Fitzgerald, 94 Mo. 207; Speed v. Ry. Co., 163 Mo. 111; Dutton v. Dameron, 100 Mo. 141; Spencer v. O'Neil, 100 Mo. 49; Ekey v. Ings, 87 Mo. 493; Hart v. Steedman, 98 Mo. 452; Wimpey v. Lawrence, 208 S.W. 379. Plaintiff herein, defendant in the ejectment suit, was not required or compelled (in order to anticipate an adverse judgment in that suit and the effect thereof in a subsequent suit) to plead, as an equitable defense, or as a cross bill with a prayer for equitable relief, the wrongful act of plaintiffs in including said twelve acres in the partition suit and his ignorance thereof until after the partition sale, and his failure to so plead constitutes no estoppel or bar to the prosecution of this suit. Witte v. Storm, 236 Mo. 490; Wimpey v. Lawrence, 208 S.W. 54. (8) The only question raised by the pleadings in the ejectment suit was whether plaintiffs had the legal title under the partition deed or whether defendant had it under the deed from A. A. Overton and wife to O. K. Overton, and the deed from O. K. Overton to defendant, although defendant specially pled his title under said deeds as one in fee and prayed the court to "ascertain the equities existing between plaintiffs and defendant in and to said lands and render a decree accordingly." Wimpey v. Lawrence, 208 S.W. 54; Nehwam v. Kenton, 79 Mo. 382. (9) In deciding the questions of res judicata on former adjudication, the court cannot rightfully ignore the issues raised by the pleadings in the ejectment suit and look to the evidence, if any, in the suit relating to unpleaded equities. Wimpey v. Lawrence, 208 S.W. 54; Nehwam v. Kenton, 79 Mo. 382.

J. S. Davis and G. M. Landis for respondents.

(1) It must be alleged that the judgment was obtained by fraud; that the fraud was practiced in the very act of obtaining the judgment, and not merely in the cause of action on which the judgment is founded. Hamilton v. McLean, 139 Mo 678; Bates v. Hamilton, 144 Mo. 11; Fears v. Riley, 148 Mo. 58. (2) In order to constitute a cause of action in a case to set aside a judgment where the court had jurisdiction of the parties and the subject-matter of the action, as it did in the partition suit here attacked by plaintiff, the plaintiff by his bill must show that his failure to avail himself of any defense he had in the former suit was not attributable to any negligence or want of diligence on his part, but to fraud or act of the opposite party outside of any allegations in the pleadings in the former suit. Lieber v. Lieber, 239 Mo. 39; Hamilton v. McLean, 169 Mo. 68; Corolus v. Kock, 72 Mo. 646; Cantwell v. Johnson, 236 Mo. 600; Railroad v. Merreless, 182 Mo. 142; Shemwell v. Betts, 264 Mo. 271; Howard v. Scott, 225 Mo. 712; United States v. Throckmorton, 98 U.S. 93. (3) The exact grounds set up in plaintiff's petition for setting aside the judgment sale and deed in the partition suit, are that this twelve acres of land were included in the partition petition by mistake and oversight, and that this mistake was not discovered by any of the parties until long after the partition sale and the execution of the deed to the purchasers -- thus clearly exonerating all parties from any fraud; and in plaintiff's reply he gives all parties and their attorney a clear bill of fare against any taint of fraud, then he proceeds to tell plainly just how and why he was misled. Being misled by relying on erroneous allegations in the petition is not sufficient grounds to set aside a judgment; for "if equity could vacate a judgment on such grounds by a new one, why not overturn the latter by a new suit and so on without end." Howard v. Scott, 225 Mo. 713. It is laid down in many cases that fraud, to overturn a judgment, must arise on extrinsic and collateral matters and not on the very issues presented by the pleadings and passed upon by the trial court. McDonald v. McDonald, 242 Mo. 176; and cases cited. Duncan v. Lyon, 3 John. Ch. 365; Story Eq., secs. 895, 1572; Ritter v. Democratic Press Co., 68 Mo. 459; Payne v. O'Shea, 84 Mo. 134; Lieber v. Lieber, 239 Mo. 31; Bates v. Hamilton, 144 Mo. 1; Lieber v. Lieber, 239 Mo. 1; McDonald v. McDaniel, 242 Mo. 172; Shemwell v. Betts, 264 Mo. 268. Sec. 2032, R. S. 1919, provides that the sheriff's deed at a partition sale "shall be a bar against all parties interested in such premises who shall have been parties to the proceedings, and against all persons claiming from such parties, or either of them." Becker v. Stroeher, 167 Mo. 306; Holladay v. Langford, 87 Mo. 577; Pentz v. Kuester, 41 Mo. 447. (4) There is no question but what the plaintiff could have set up the very matters that he now relies on for...