Texier v. Texier

• Decision Date: 17 September 1938
• Docket Number: No. 34939.,No. 34940.,34939.,34940.
• Citation: 119 S.W.2d 778
• Court: Missouri Supreme Court
• Parties: HELEN ELIZABETH TEXIER, now known as HELEN ELIZABETH TEXIER NORRENBERNS, v. JEAN B. TEXIER, NELDA BRESSEL SCHUM; WILLIAM M. STOVER, Curator of the Estate of HELEN ELIZABETH TEXIER NORRENBERNS; JEANETTE T. HAYDEN; GEORGE T. HAYDEN, her husband; CHIPPEWA TRUST COMPANY, a Corporation; and THOMAS FRANCIS, Trustee, Defendants, JEAN B. TEXIER and JEANETTE T. HAYDEN, Appellants.

119 S.W.2d 778

HELEN ELIZABETH TEXIER, now known as HELEN ELIZABETH TEXIER NORRENBERNS, v. JEAN B. TEXIER, NELDA BRESSEL SCHUM; WILLIAM M. STOVER, Curator of the Estate of HELEN ELIZABETH TEXIER NORRENBERNS; JEANETTE T. HAYDEN; GEORGE T. HAYDEN, her husband; CHIPPEWA TRUST COMPANY, a Corporation; and THOMAS FRANCIS, Trustee, Defendants, JEAN B. TEXIER and JEANETTE T. HAYDEN, Appellants.

No. 34939.

No. 34940.

Supreme Court of Missouri.

Division One, September 17, 1938.^*

Appeal from Circuit Court of City of St. Louis. — Hon. O'Neill Ryan, Judge.

AFFIRMED.

Anderson, Gilbert, Wolfort, Allen & Bierman for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action in that there are no allegations of what is claimed to have constituted the fraud in the procurement of the judgment of the probate court authorizing sale of the property. Smith v. Sims, 77 Mo. 274; Covington v. Chamblin, 156 Mo. 588; Jones v. Petersen, 72 S.W. (2d) 84. (a) The petition does not state specific acts and allegations showing fraud of the defendants in the procurement of the judgment of the probate court. The general averments of fraud, or that acts of fraud were committed, are mere epithets and conclusions of law and are insufficient. Nichols v. Stevens, 123 Mo. 117; Dorman v. Hall, 124 Mo. App. 9; Reed v. Bott, 100 Mo. 66; Hoester v. Sammelman, 101 Mo. 624; Williams v. Chicago, S.F. & C. Ry. Co., 112 Mo. 496. (b) All the matters alleged in the petition herein are intrinsic in the matters passed on in the probate court. Such matters do not form the basis of an attack for fraudulent procurement. It is only matters extrinsic or collateral that can be availed of. Irvine v. Leyh, 124 Mo. 366. (2) No evidence was produced that the judgment of the probate court ordering and approving the curator's sale of the minor's real estate was fraudulently procured; therefore the court of equity had no power to set aside the judgment of the probate court, even if the pleading were sufficient. Covington v. Chamblin, 156 Mo. 588; Jones v. Petersen, 72 S.W. (2d) 84; Moody v. Peyton, 135 Mo. 482; Smith v. Sims, 77 Mo. 274. (a) The evidence to establish such fraud must be clear, strong and cogent, and the fraud must be exercised in the very procurement of the judgment sought to be set aside; even false allegations in pleadings, perjury, forgery, etc., do not authorize annulling a judgment. Hamilton v. McLean, 139 Mo. 678; United States v. Throckmorton, 98 U.S. 61; Blass v. Blass, 194 Mo. App. 634; Cackley v. Meyers, 199 S.W. 720; Lieber v. Lieber, 239 Mo. 1; Cantwell v. Johnson, 236 Mo. 575; Bates v. Hamilton, 144 Mo. 1. (b) The probate court had jurisdiction of the subject matter. Its records, therefore, are entitled to all the considerations that are due to the records of a court of general jurisdiction and import absolute verity. The records of the probate court in the case at bar were regular and in perfect order on their face. Ancell v. Bridge, 223 Mo. 227; Strobel v. Clark, 128 Mo. App. 57; In re Tucker, 74 Mo. App. 331; Johnson v. Beazley, 65 Mo. 250; Henry v. McKerlee, 78 Mo. 416; Camden v. Plain, 91 Mo. 129; Cox v. Boyce, 152 Mo. 582; Moody v. Peyton, 135 Mo. 489. (c) Nor can a court in equity correct what it may have thought was a mistake of law on the part of the probate court. Einstein v. Strother, 182 S.W. 124. (3) Defendant Jean B. Texier acquired the six thousand dollar principal note and the deed of trust securing same, after his wife's death, and thereby became entitled to all of the rights given the holder of said deed of trust. There was no merger. (a) By his purchase of the deed of trust when he was not the owner of the property, defendant Texier became entitled to all of the rights and privileges given the holder of the deed of trust. Bray v. Conrad, 101 Mo. 331. (b) The title to the property at the time defendant Texier acquired the deed of trust and principal note was in Helen Elizabeth Texier, who inherited it from her mother. Therefore there could be no merger. City of Gallatin v. Feurt, 50 S.W. (2d) 1027.

Thos. E. Mulvihill and Charles A. Neumann for respondent.

(1) The petition of plaintiff states facts sufficient to constitute a cause of action. It specifically sets forth the unlawful and fraudulent acts of the defendant Texier from the beginning to the end; from taking unlawful possession of the property in February, 1921, down to his very last act, conveying the property to defendant, Jeanette T. Hayden, in order to put it out of the reach of plaintiff. The petition states the wrongful taking of possession of the property involved in the suit by defendant Texier upon the death of his wife, February 28, 1921, and his failure to apply for curatorship in the probate court. Sec. 371, R.S. 1919; State ex rel. v. Staed, 143 Mo. 248; Rougtell v. Strode, 126 Mo. App. 354; Stewart v. Caldwell, 54 Mo. 536; Mayberry v. McClurg, 51 Mo. 256; Fitzpatrick v. Stevens, 114 Mo. App. 497. (2) Fraud is synonymous with bad faith, dishonesty, or overreaching. Adams v. Barber, 157 Mo. App. 370. Suppression or concealment of facts: Suppression or concealment will amount to fraud where the concealment is of material facts which one party is under some legal or equitable duty to communicate to the other, and which the latter has the right to know; and silence or concealment thereof will in such cases constitute fraud. 8 Am. & Eng. Encyclopedia of Law, pp. 644, 645; Gilliland v. Bondurant, 59 S.W. (2d) 679. The sale was fraudulent as to the minor by reason of the fact that William M. Stover, curator, sold the property for $1210 instead of $2000. The attorney for the curator obtained the approval of the sale by the court on fraudulent representation. Davidson v. Davidson R.E. & I. Co., 125 S.W. 1143, 226 Mo. 1. The essentials of a valid sale, among others, are valid consideration and the delivery of the deed. Wimpey v. Ledford, 177 S.W. 302; McCune v. Goodwillie, 204 Mo. 338; Appleman v. Appleman, 140 Mo. 309. (3) The court committed no error in cancelling said deed of trust. Kelly v. Stead, 136 Mo. 430; Erhart v. Dietrich, 118 Mo. 418; Williams v. Gerber, 75 Mo. App. 31; Pease v. Iron Co., 49 Mo. 124; McNair v. Pickett, 33 Mo. 57; Brown v. Bank, 66 Mo. App. 431.

BRADLEY, C.

This cause has been reassigned. When commenced, plaintiff was a minor, and proceeded by next friend, but became of age and married before trial, and thereafter proceeded in her married name. The cause is in equity to set aside an order of sale and the approval of the sale of real estate, made by the probate court of St. Louis; to cancel the curator's deed made in pursuance of the order; to set aside two deeds made subsequent to the curator's deed; to cancel a $6000 note and deed of trust securing the same; and for an accounting as to defendants, Jean B. Texier and Jeanette T. Hayden. The trial court found in favor of plaintiff, entered interlocutory decree, and appointed a special master in chancery to hear the accounting wing of the case. The special master reported his findings and plaintiff filed certain exceptions. These were sustained in part and overruled in part, and final judgment rendered. On the accounting wing of the case the judgment against defendant, Jean B. Texier, was for $2923.48, and against defendant, Jeanette T. Hayden, for $1535. Defendants, Jean B. Texier and Jeanette T. Hayden, filed separate motions for new trial, which motions were overruled and they separately appealed.

[1] Appellants filed separate demurrers to the petition. These allege five grounds, but in the briefs no ground is considered except that the petition does not state facts sufficient to constitute a cause of action. It is also claimed that there is no substantial evidence to support the decree rendered. Appellants answered over after the demurrers were overruled, and in this situation we think the petition sufficient.

In order to better understand the situation, we here state the background of this cause. Elizabeth Nagel Texier and defendant, Jean B. Texier, were husband and wife, and on April 7, 1920, they acquired certain real estate, a lot and a two apartment building thereon, at 3866 Utah Place, St. Louis. The deed was made to Mrs. Texier, and on that date they executed their principal note for $6000, due in three years, and six semi-annual interest notes of $180 each, to Elizabeth Goehring (the grantor in the lot deed, as we infer), and secured these notes by a deed of trust on the property purchased. Defendant, Thomas Francis, was trustee in the deed of trust. Plaintiff is the only child of Mrs. Texier and is by a former marriage. Mrs. Texier died February 28, 1921, and plaintiff and her stepfather, after the death of Mrs. Texier, continued to live in the property, and occupied the lower apartment. He rented out the upper apartment and received the rent money, and paid no rent on the apartment he occupied.

May 6, 1921, Texier formally adopted plaintiff. He married again in October, 1921, and thereafter he, his new wife, and plaintiff continued to occupy the lower apartment. He took no steps to have the estate of his deceased wife administered, and took no steps to have a guardian and curator appointed for plaintiff. In the spring of 1923, the tenant occupying the upper apartment heard rumors that Texier did not own the property, and questioned his right to collect the rent. The tenant made inquiries of plaintiff's maternal grandparents and aunt, and these relatives, or some one of them, requested Charles A. Neumann, an attorney, to make an investigation. September 6, 1923, plaintiff's maternal grandfather, Frank Weissler, filed petitions in the probate court for appointment as administrator of the estate of his daughter, Mrs. Texier, deceased, and curator of the estate of plaintiff. He was appointed both as administrator and curator, but while the applications or petitions for appointment were pending, Texier filed suit in the circuit court...