Seilert v. McAnally

• Decision Date: 27 November 1909
• Citation: 223 Mo. 505,122 S.W. 1064
• Parties: SEILERT v. McANALLY et al.
• Court: Missouri Supreme Court

122 S.W. 1064

223 Mo. 505

SEILERT v. McANALLY et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. EXECUTORS AND ADMINISTRATORS (§ 43) — PERSONAL PROPERTY.

Title to the personalty of an intestate passes to his administrator, and the title to the personalty of a testator passes to his executor.

2. EXECUTORS AND ADMINISTRATORS (§ 39) — REAL ESTATE.

Title to real estate of an intestate vests directly in his heirs.

3. GUARDIAN AND WARD (§ 34) — TITLE OF GUARDIAN.

The property of a ward is not vested in the guardian; but, in the absence of an express trust, the title thereto remains in the ward, and his title cannot be disturbed without his being a party to the suit involving the issue.

4. GUARDIAN AND WARD (§ 126) — ACTION — PARTIES.

In a suit to divest title to real estate out of an infant and vest it in plaintiff, the infant must be sued in his own name, and his guardian must defend the action.

5. HOMESTEAD (§ 181) — PRESUMPTIONS.

It will be presumed that the status of a homestead continues until the contrary appears, and the burden of proving that the homestead has ceased to exist is on him who asserts it.

6. FRAUDULENT CONVEYANCES (§ 52) — CONVEYANCE OF EXEMPT PROPERTY — EFFECT.

A voluntary conveyance by a debtor of his homestead is not fraudulent as against his creditors, in the absence of any statutory prohibition.

7. VENDOR AND PURCHASER (§ 231) — NOTICE — RECORDS.

Under Rev. St. 1899, § 923 (Ann. St. 1906, p. 845), providing that conveyances of real estate shall from the time of the recording thereof impart notice to all persons of the contents thereof, and all subsequent purchasers are purchasers with notice, and section 3399 (page 1933), providing that no conveyance shall be deemed void in favor of a subsequent purchaser where the conveyance has been recorded, etc., a subsequent purchaser cannot sue to set aside a prior conveyance, which was duly recorded at the time of the subsequent purchase, though the subsequent purchaser was an unlettered man and did not understand the facts.

8. FRAUDULENT CONVEYANCES (§ 282) — ACTIONS — EVIDENCE.

Under Rev. St. 1899, § 3399 (Ann. St. 1906, p. 1933), providing that no conveyance shall be void in favor of a subsequent purchaser unless the grantee in such conveyance was a party to the fraud, a subsequent purchaser, seeking to set aside a prior voluntary conveyance of the grantor to his wife, must, to recover, show that the wife participated in the grantor's fraud.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by C. P. Seilert against William F. McAnally, J. W. White, as guardian, etc., of John and Curtis McAnally, and others. From a judgment for plaintiff, defendant White, as guardian, etc., appeals. Reversed, with directions.

Houck & Houck, for appellant. Ralph Wammack, for respondent.

LAMM, P. J.

Plaintiff sues in equity to set aside two certain deeds to Stoddard county land, as a cloud on his title, and to vest title out of defendants and into him. Defendant William F. McAnally does not appeal. A decree going, the defendant guardian and curator appeals.

Summarized, the bill alleges: That on the 23d day of July, 1897, said Wm. F. was seised in fee of the S. E. ¼ of the N. W. ¼ and the S. W. ¼ of the N. E. ¼, section 25, township 26, range 10 (80 acres). That on said day he and his then wife, Martha Isabell, conveyed the land to one Alex. McAnally for an alleged consideration of $1,500; the deed put of record presently. That three days later Alex. reconveyed the land to Martha Isabell for a like alleged consideration, which deed was put of record on the same day as the other. That on the 16th of September, 1899, over two years later, Wm. F. and his then wife, Alice (Martha Isabell having died intestate), sold the land to plaintiff, conveying it by warranty deed for full value paid, putting plaintiff in possession. That being unlettered, unfamiliar with land titles, or how to trace them, plaintiff had to depend on others. That he intended to buy an unincumbered fee-simple title, and to that end used reasonable diligence and caution by requiring said McAnally to furnish him an abstract of title. That such abstract was furnished showing perfect fee-simple title in him. That relying on and induced by said abstract, and by the fraudulent representation of Wm. F., viz., that he had a fee-simple title, plaintiff purchased the land, paid his money, and took a conveyance and possession. That in truth and fact the title was defective not only in respect to said two conveyances, but in respect to other matters (immaterial here). That later, to wit, in January, 1905, Wm. F. McAnally notified plaintiff that he did not own the land at the time he conveyed to plaintiff, but had theretofore conveyed to Martha Isabell, and that "they had better fix up the title * * * while they were both alive." That plaintiff then caused the records to be searched and found the two 1897 deeds. That said abstract of title failed to show either of them. That "said deeds were falsely and fraudulently executed by the parties thereto with intent to cheat and defraud prior and subsequent creditors and probable purchasers of said land. That they were voluntary conveyances and were made without any consideration, and no change of possession was ever had thereunder." That the heirs of Martha Isabell are William F., her husband, and John and Curtis, her minor children. That defendant White is the duly appointed, qualified, and acting guardian and curator of said minors. That, though often requested to do so, defendants "have failed and neglected to perfect his title to said land." And that said deeds "constitute a cloud on plaintiff's title." Wherefore, etc. The answer was a general denial by the guardian and curator in his own behalf and for said minors. Defendant McAnally defaulted.

Plaintiff, to sustain the averments of his bill, put in proof as follows: (1) A warranty deed to him from W. F. and Alice, his second wife, of date September 16, 1899; consideration, $800. (2) A warranty deed in regular form by W. F. and Martha Isabell, his first wife, to Alexander McAnally; consideration, date, and record as alleged in the petition. (3) A warranty deed from Alexander to Martha Isabell and recorded the same day as No. 2. Supplementing his documentary proof, plaintiff took the stand and testified that he bought the land on the 16th day of September, 1899, now lives on it as a home, knew McAnally for some time, always considered him a man of his word and honorable, and knew he had lived on it several years and had rented it out, collecting the rent when not living on it. McAnally came to him and offered to sell. Told McAnally he might trade if he had a good title. McAnally said he had a good, straight title — "not a flaw in it." Plaintiff said to him he "was ignorant and did not know a thing about land titles." McAnally replied he would fix that matter by getting an abstract. Plaintiff told him to do so. He would have it examined and would take the land if the title was all right. McAnally got an abstract showing the title all right. (Note: This abstract omitted the 1897 deeds and certified the title clear.) Thereupon the deed was made, and plaintiff paid $800. Plaintiff firmly believed at the time that McAnally had a good title; would not have traded if he had doubted it. Plaintiff knew nothing about McAnally's deed to Alexander and Alexander's to Martha Isabell, and never heard of them till years afterwards. McAnally was reputed to be the owner of the land — had paid taxes, lived on it, or rented it just like an owner. Plaintiff bought the place for a home, and since purchasing had built a barn and fences and had otherwise improved the place, never having been disturbed in his possession or enjoyment of it. In 1905 plaintiff got a letter from McAnally telling him that he had deeded the land to his first wife before she died. Put on inquiry, plaintiff then searched the record and found deeds putting title in Martha Isabell. He then went to Alexander McAnally (Wm. F.'s father, now dead), and on inquiry was told that he (Alexander) paid nothing for his deed, and got nothing on Martha Isabell's. Plaintiff had no schooling, could neither read nor write. The land in question is all he has. William F. McAnally told plaintiff he conveyed to Isabell to keep Mr. Houck, an attorney, from enforcing the collection of some machine notes he held against him and one Miller, and that there was no consideration for the conveyance. On cross-examination plaintiff admitted that neither William F. or Martha Isabell was ever indebted to him in aught, and that he had had no dealings with Wm. F. except as detailed in his direct examination.

To further sustain his bill, plaintiff offered the deposition of defendant, William F. McAnally. In substance, his testimony follows: Witness sold the land to C. P. Seilert; bought it from one Hunt; owned it seven or eight years; used his own money in paying for it; his first wife, Martha Isabell, resided on the land; witness was living on it when he sold it to Seilert. Asked under what circumstances the conveyances were made to Alexander and Martha Isabell, he answered that he owed a debt to a machine company for a binder bought by him and one Miller; they giving joint notes. These came into the hands of Mr. Houck for collection. Witness was about to sell the place he was then on and move on the land in controversy, so he sold his interest in the machine to Miller, who was to take up the notes. Afterwards Houck wrote witness that he held a note overdue. Witness told Houck Miller was to pay — he must look to him. Houck promised to look to Miller. Witness then went to Dunkin county. While there, Houck wrote him threatening to sue if the note was not paid and to sell the land. The letter said it could not be held any longer as a homestead. At that time Martha Isabell was in bad health and nervous. She insisted witness should...