Simms v. Thompson
| Decision Date | 21 January 1922 |
| Citation | 236 S.W. 876,291 Mo. 493 |
| Parties | JOHN W. SIMMS et al. v. ROBERT THOMPSON et al.; MINITREE C. McFADIN et al., Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied 291 Mo. 493 at 526.
Appeal from Carroll Circuit Court. -- Hon. Ralph Hughes Judge.
Affirmed.
John E. Burden and Gerson B. Silverman for appellants.
(1) The trial court erred in ignoring and failing to find that the probated and recorded will of Minitree Catron, in Lafayette County was a link in the chain of title to the lands in controversy, and was notice thereof to the whole world. The will of Catron, the patent owner of the lands in controversy who was at his death a resident of Lafayette County, duly proved in the probate court of said county and recorded in a record book kept in said court for the purpose of recording last wills and testaments, was an adjudication in rem, and notice to all the world of the devises and bequests in said will contained, and of the persons to whom bequeathed, and constituted a link in the chain of title to all lands lying within the boundaries of Missouri, owned by said testator at the time of his death. R. S. 1909, secs. 535, 563, 564, 565; R. S. 1855, chap. 167, sec. 1, p. 1567, and Secs. 26, 27, 28, p. 1571; Benoist v. Murrin, 48 Mo. 48; 3 Redfield, Law of Wills (2 Ed.) p. 63, sec. 9 and note 39; Tremblay v. Ins. Co., 94 Am. St. 557; Ellis v. Woods, 9 Rich. Eq. 19; Nichols v. Hobbs, 197 S.W. 258. (2) The trial court in deciding the issues for respondents, and in overruling appellants' motion to vacate the decree of 1909, erroneously ignored and repudiated the legal conclusion of law that the will of Minitree Catron, devised and conveyed to the appellants a vested estate in remainder in and to the lands in controversy. Aubuchon v. Bender, 44 Mo. 566; Byrne v. France, 131 Mo. 639; Gates v. Seibert, 157 Mo. 254; Waddell v. Waddell, 99 Mo. 338. At common law there was no obligation to put upon record a conveyance affecting the title of land, and a writing was not essential to the validity of a will, and registry laws were not in vogue prior to the Statute 32, Henry VIII. Tiedeman on Real Prop., sec. 875; Aubuchon v. Bender, 44 Mo. 564. (3) The trial court erred in its decision and findings that it was necessary in order to constitute notice of title, that the will of said Minitree Catron, should have been recorded in Carroll County, within six months after the probate thereof. R. S. 1909, sec. 2823; R. S. 1855, sec. 50, p. 366. None of the foregoing provisions in relation to the acknowledgment, proof or recording of instruments in writing affecting real estate shall be construed as extending to last wills and testaments. It is not necessary to record a domestic will in the local land records or in any recorder's office in any county in the State of Missouri; and if it was so recorded, it would not impart notice; no one could rely upon the record being correct either as to the provisions of the will, or the condition of the testator's estate. Nichols v. Hobbs, 197 S.W. 258. Since the whole system of recordation depends on statutory enactment, the operation of the recording acts can extend only to those instruments which are required to be recorded by the terms or intendment of these statutes. 20 Am. & Eng. Encyc. Law, 572, note 1; R. S. 1909, secs. 566-2810; R. S. 1855, p. 1571, sec. 29; p. 364, sec. 41; Wolf v. Brown, 142 Mo. 612; Lewis v. St. Louis, 4 Mo.App. 563; Rodney v. McLaughlin, 97 Mo. 426; Mosher v. Bacon, 229 Mo. 357. (4) The trial court committed manifest error in its findings and decision on the issues presented by appellant's motion to vacate said decree, in holding and adjudging that said decree was valid and binding upon appellants, and that it settled and determined the title of appellants to the land in controversy adversely to the claims of appellants. This Section 650 is an enabling act intended to protect and preserve estates, and was not enacted to be used for the destruction of estates, or as an instrument of wrong. It gives anyone who is the owner of a particular title a right to have that title equieted in him. It gives no right to the owner of an estate per autre vie to have his estate enlarged into a fee during the life of the life tenant. The court must have power to render the particular judgment in the particular case. Charles v. White, 214 Mo. 208; Charles v. Pickens, 214 Mo. 215. Said Section 650 authorizes an action in personam, not in rem. The decree is not binding on strangers or persons, not parties to the suit, or who have not been served with due process of law. It binds only the parties to the action, and then only when the court has power to adjudicate the particular matter determined. Armor v. Frey, 253 Mo. 474; Harrison Mach. Works v. Bowers, 200 Mo. 236; Dixson v. Hunter, 204 Mo. 383; Powell v. Crow, 204 Mo. 481. Said "decree" is not res adjudicata as to the rights of the children of Frances Eveline McFadin. There was no issue raised or litigated between the holders of the life estate and the remaindermen, of their respective titles at said trial. Charles v. White, 214 Mo. 209. The possession of Frances Eveline McFadin, as life tenant and her grantee, Mary A. Simms, and the plaintiffs as heirs of Mary A. Simms, enured to the benefit of appellants as remaindermen, and if said plaintiffs in said suit to quiet title acquired any title or right to said lands by virtue of said decree, such right or title immediately enured by operation of law to the benefit of appellants as such remaindermen. Charles v. White, 214 Mo. 187; Charles v. Pickens, 214 Mo. 215; Armor v. Frey, 253 Mo. 474; Salmon's Admrs. v. Davis, 29 Mo. 176; Allen v. DeGroot, 98 Mo. 159, and note thereto, in 14 Am. St. 628; Peake v. Peake, 228 Mo. 536, and note thereto, in 137 Am. St. 651; Holridge v. Gillespie, 2 John Ch. 33.
Franken & Timmons for respondents, John W. Simms, Eilzabeth Christopher, Margaret Flanagan, and the heirs of Catharine Boschert; Lozier & Morris and Conkling & Withers for respondents, James L. Wilson and Henry Lee Wilson.
(1) A motion in the nature of a writ of error coram nobis is an independent proceeding. Hirsh v. Weisberger, 44 Mo.App. 510; Halsey v. Meinrath, 54 Mo.App. 340; State ex rel. v. Riley, 219 Mo. 695; Jeude v Sims, 258 Mo. 44. (2) The motion in the nature of a writ of error coram nobis being an independent proceeding, there is nothing before this court but the record proper, as a motion for a new trial was not filed. 3 C. J. 972; Hemm v. Juede, 153 Mo.App. 267; Lilly v. Menks, 92 Mo.App. 358; City of Jefferson v. Wells, 263 Mo. 231. (3) There being nothing before this court but the record proper the judgment should be affirmed on such record. The motion of movents in the nature of writ of error coram nobis to vacate the decree in the suit to quiet title assigns as errors of fact matters that cannot be made the basis of the motion in the nature of a writ of error coram nobis. The motion seeks to vacate the decree in the suit to quiet title for alleged errors of law appearing on the face of the record; it seeks to contradict the record in a suit to quiet title; it seeks to readjudicate the question of title which was the subject-matter of the suit to quiet title; it seeks to set aside such decree because of alleged fraud; and it also seeks to set aside such decree because of alleged errors of fact which were wholly immaterial and could not deprive the court of its power and jurisdiction to render the decree that it did render in said suit to quiet title. None of these matters can properly be made the basis of a writ of error coram nobis to vacate a decree: (a) The writ of error coram nobis can never be used to vacate a judgment for error of law appearing on the face of the record. 23 Cyc. 884; 2 R. C. L. sec. 262, p. 307; Dugan v. Scott, 37 Mo.App. 669; Powell v. Gott, 13 Mo. 458; State v. Stanley, 225 Mo. 534; State ex rel. v. Riley, 219 Mo. 681. (b) The writ of error coram nobis never lies to set aside a judgment for alleged error of fact which contradicts the record. 23 Cyc. 884; 2 R. C. L. sec. 262, p. 308; 5 Ency. Pl. and Pr. p. 39; 18 L. R. A. 840, note; Reed v. Bright, 232 Mo. 412; State ex rel. v. Clarkson, 88 Mo.App. 553; Hartman v. Hartman, 154 Mo.App. 244; State v. Standley, 225 Mo. 525; Williams v. Edward, 34 N.C. 118; Black on Judgment (2 Ed.), sec. 330, p. 460; People v. Noonan, 276 Ill. 430. The petition, order of publication, and judgment in the suit to quiet title constitute the record thereof which is sought to be contradicted by alleged error of fact. Miller v. Shipley, 94 Mo. 109; Smith v. Mosley, 234 Mo. 495. (c) An alleged error of fact cannot be made the basis of a writ of error coram nobis if it seeks to establish matters which were adjudicated in the suit, the judgment of which is sought to be vacated by the motion. The writ of error coram nobis cannot readjudicate matters in issue in the original suit. 23 Cyc. 884; 2 R. C. L. sec. 262, p. 308; 18 L. R. A. 840, note; Marble v. Van Horn, 53 Mo.App. 361; Smith v. Young, 136 Mo.App. 65; Estes v. Nell, 163 Mo. 387; Graves v. Graves, 255 Mo. 468; Jeude v. Sims, 258 Mo. 26; Callicotte v. Railway Co., 204 S.W. 528. (d) The writ of error coram nobis can never be used to vacate a judgment for fraud. The writ is a common law writ and judgment can be set aside for fraud only by a proceeding in equity. Jeude v. Sims, 258 Mo. 26; Davis v. Robinson, 126 Mo.App. 293; People v. Noonan, 275 Ill. 430. (e) No alleged error of fact can be made the basis of a writ of error coram nobis to set aside a judgment when the power and jurisdiction of the court to render the judgment did not depend upon the existence of such alleged error of fact. In other words the fact sought to be established must be a material fact the existence of which would...
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