Truesdail v. McCormick

• Decision Date: 22 December 1894
• Parties: Truesdail v. McCormick et al., Appellants
• Court: Missouri Supreme Court

28 S.W. 885

126 Mo. 39

Truesdail v. McCormick et al., Appellants

Supreme Court of Missouri, First Division

December 22, 1894

Appeal from Grundy Circuit Court. -- Hon. G. D. Burgess, Judge.

Reversed and remanded.

""Luther Collier and ""Harber & Knight for appellants.

(1) The judgment entered January 5, 1881, in the proceedings of McCormick against this respondent and her husband, they both having been properly served and being at the time thereof in court in person and by counsel and agreeing thereto, was valid and binding upon respondent, hence the court erred in holding the same void and rendering its judgment in this cause. Freeman on Judgments [2 Ed.], secs. 149, 150. (2) There was no sufficient allegation in the petition, nor any evidence whatever, to justify the setting aside of said judgment, or to warrant the entry of the judgment herein. Freeman on Judgments, ""supra.

""J. F. Harwood and ""Williams & Linney for respondent.

(1) The judgment rendered against respondent on January 5, 1881, was void and was properly attacked in this proceeding. The trial court committed no error in entering judgment for respondent. ""Coe v. Ritter, 86 Mo. 277: ""Higgins v Peltzer, 49 Mo. 152; ""Bearden v. Miller, 54 Mo.App. 199; 14 Am. and Eng. Encyclopedia of Law, p. 664 sec. 19, and p. 594; 12 Am. and Eng. Encyclopedia of Law, p 149, note 3; 1 Black on Judgments, sec. 54; Freeman on Judgments [3 Ed.], sec. 545; ""Dorrance v. Scott, 3 Whart. 313; ""Caldwell v. Walters, 18 Pa. St. 79; 2 Story's Equity Jurisprudence [9 Ed.], sec. 1397; ""Fox v. Tooke, 34 Mo. 509; ""Bank v. Banks, 101 U.S. 240; ""Gwin v. Smurr, 101 Mo. 550; ""Brunner's Appeal, 47 Pa. St. 67; ""Swayne v. Lyon, 67 Pa. St. 439. (2) A married woman can dispose of her interest in real estate only in the way prescribed by statute. ""Coe v. Ritter, 86 Mo. 277; ""Bearden v. Miller, 54 Mo.App. 199; ""Higgins v. Peltzer, 49 Mo. 152; ""Gwin v. Smurr, 101 Mo. 550; ""Craig v. Van Bebber, 100 Mo. 584; ""Kreiger v. Crocker, 118 Mo. 531; R. S. 1889, sec. 2396.

Barclay, J. Black, C. J., and Brace and Macfarlane, JJ., concur.

OPINION

Barclay, J.

This action was begun in October, 1891, since the enactment of section 1996, R. S. 1889.

The petition presents two distinct claims for the recovery of certain real property in Grundy county.

The first count seeks to set aside an old judgment under which the defendants claim title, and to revest the title in the present plaintiff.

The second count is a plain statement in ejectment for the same land.

The answer denies the charges of the petition; sets up the statute of limitations, and asserts that the judgment sought to be annulled, was based upon personal service on the then defendant (now the plaintiff.)

It is not necessary to go into the pleadings fully.

The case is, in its essential particulars, an agreed one. It was tried by the court, and a peremptory declaration of law was given to the effect that the finding must be for plaintiff under the pleadings and evidence. Upon that, a judgment for plaintiff, for title and possession, followed; from which, defendants appealed in due course, after the usual motions and exceptions.

The substance of the controversy is this:

The common source of title is admitted to be Mr. Thomas A. Murphy.

The plaintiff, Mrs. Marion C. Truesdail, was a married woman at all times mentioned in this record, as well as when the present action was brought. She asserts ownership of the land under an ordinary deed of general warranty, May 22, 1877, from Mr. Murphy and wife to the plaintiff, which deed was duly recorded, about that time.

The defendants claim title under a judgment of the circuit court of Grundy county, rendered June 5, 1881, in a cause begun in February, 1879.

The case at bar turns upon the question of the validity of that judgment. It will be well to give an outline of the proceedings on which the judgment is founded.

In that cause, plaintiff and her husband, Mr. Delos R. Truesdail, were parties defendant; each was served personally with process of summons, and each appeared by counsel. The petition against them consisted of a count in ejectment for a tract of land (including that now in suit), and a count in equity to set aside the deed above mentioned, to divest the title of Mrs. Truesdail and vest it in the plaintiffs in that suit.

That count recited (with full details, as to time and circumstance, which need not now be given) that plaintiffs were creditors of Mr. Truesdail, had duly recovered judgment against him, and bought his interest in the identical land, in 1879, under an execution upon that judgment. It was then charged that Mr. Truesdail had purchased the land in question from Mr. Murphy, in 1877, when largely indebted to plaintiffs and others, paying the purchase price for the title, which was then conveyed by Mr. Murphy to Mrs. Truesdail. The petition alleged that the latter gave no consideration for the legal title thus received by her, but that the purpose of the transaction was to hinder, delay, and defraud the creditors of her husband, especially the plaintiffs; and that Mr. Truesdail was wholly insolvent.

The petition prayed that the said deed, of May 22, 1877, from Mr. Murphy to Mrs. Truesdail be adjudged fraudulent and void, the title to the said land vested in plaintiffs, and for general relief.

The important parts of the judgment, afterwards rendered in that suit, are as follows:

"This cause coming on to be heard, this, the fifth day of January, 1881, and both plaintiff and defendant, as well as their respective counsel being present, it is agreed by and between them that plaintiff have judgment for the recovery of lots 3 and 4 and the west half of lots 1 and 2 in block 5 in Wiggins and Murphy's addition to the town of Trenton in said Grundy county, Missouri, and that said petition be dismissed as to the remainder of said property described in plaintiffs' petition.

It is, therefore, ordered, adjudged and decreed by the court that the deed of the said Thomas A. Murphy, mentioned in plaintiffs' petition, to said Marion C. Truesdail, for block 5, in Wiggins and Murphy's addition to said town of Trenton, * * * be and the same is, as to all of lots 3 and 4, and the west half of lots 1 and 2 in said block 5 of Wiggins and Murphy's addition, set aside and for naught held, and the title to the said lots 3 and 4, and west half of lots 1 and 2 be and the same is hereby vested in the said Cyrus H. and Leander J. McCormick; and it is further ordered and adjudged by the court that plaintiffs have judgment against defendant Delos L. Truesdail for the possession of said premises, viz., all of lots 3 and 4, and the west half of lots 1 and 2 in said block 5 in said addition to said town of Trenton, and for dollars damages, and that the monthly rents and profits thereof be assessed at dollars, and that plaintiffs have execution for the recovery of said property as well as their damages and monthly rent profits, and for their costs, taxed at $ ."

The land now in litigation is the same as that adjudged to the plaintiffs in the former suit, and vested in them by the terms of the decree above quoted.

The only ground upon which the present plaintiff, Mrs. Truesdail, seeks to have that judgment vacated is, that she was then a married woman. For that reason, she asserts, the judgment is utterly void as to her.

Her petition in this case recounts the principal steps in the suit against her and her husband, as a basis for the prayer to have the judgment vacated. She also charges that she was not present in court and knew nothing of the judgment, and did not learn thereof until shortly before commencing this suit.

But the record of the former case shows that she was personally served with summons. So that the only ground of attack on the judgment now taken by her counsel is that the judgment must be treated as wholly void, because of her coverture.

The learned trial judge on the circuit so held, refused defendants' request for an instruction to the contrary, and rendered a judgment for plaintiff for title and possession; moreover, canceling the former judgment and the title held by defendants thereunder.

1. The petition in the case in hand contains no suggestion of any fraud upon plaintiff, or collusive action between her husband and the creditor, to deprive her of her property by the former judgment. The petition attacks that judgment as being void, solely on account of the disability under which she then labored.

It is plainly a...