Viehmann v. Viehmann
| Decision Date | 09 April 1923 |
| Citation | 250 S.W. 565,298 Mo. 356 |
| Parties | LOUISE VIEHMANN et al. v. JACOB VIEHMANN, by Guardian and Curator, JOSEPHINE KAEMPER, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.
Affirmed.
John Cashman for appellant.
(1) The judgment of the probate court in allowing the claims of Louise Viehmann, and ordering a sale of the real estate to pay same, should not be permitted to stand. This administratrix, on oath, stated that it would not be necessary to sell the real estate to pay the debts of the deceased. All persons interested in the estate were at liberty to rely upon this declaration and assurance. This taken with Louise's statement to the mother of the infant defendant, that the sale of the real estate would not be made for ten years, prevented defendant and his mother from discovering the presentation of the fraudulent and fictitious demand of Louise which occasioned the sale of the real estate. Defendant's mother knew that the circumstances under which Louise lived with her father did not entitle her to make a demand for services. She had a right to rely upon the good faith of Louise, in protecting the interest of all and that tricks and schemes would not be resorted to to cheat and defraud a child. She was a trustee of an express trust and was bound to deal with all interested with absolute good faith, and having not only failed in this duty, but was guilty of such deceit as would prevent anyone from discovering the scheme of herself and her sister to cheat defendant out of his rightful share of his grandfather's estate. These people still have the title between them, in Augusta's name. There are no innocent purchasers with-out notice, to be protected. The schemers still have the loot, taken by fraud at less than half its value, and from a child. There is not the slightest semblance of good faith anywhere, and the courts will grant speedy relief. Clyce v. Anderson, 49 Mo. 37; Merrit v. Merrit, 62 Mo. 150; Houtz v. Sheppard, 79 Mo. 144; Mangold v. Bacon, 237 Mo. 496; State ex rel. v. Holdcamp, 266 Mo. 370; Dorrence v. Dorrence, 242 Mo. 625; Dorrence v. Dorrence, 257 Mo. 317; Howard v. Scott, 225 Mo. 711. (2) Courts of equity have an original, independent and inherent jurisdiction to relieve against every species of fraud, Every transfer or conveyance of property by what means so ever it be done is vitiated by fraud. Deeds, obligations, contracts, judgments or decrees may be the instruments to which parties may resort to cover fraud, and through which they may obtain the most unrighteous advantage, but none of such devices or instruments will be permitted by a court of equity to obstruct the requisitions of justice. And it is immaterial whether such machinery and contrivance consist of a judgment at law, or a decree of a court of equity. Clyce v. Anderson, 49 Mo. 37; Merrit v. Merrit, 62 Mo. 150; Houtz v. Sheppard, 79 Mo. 144; Mangold v. Bacon, 237 Mo. 496; State ex rel. v. Holdcamp, 266 Mo. 370; Dorrence v. Dorrence, 242 Mo. 625; Dorrence v. Dorrence, 257 Mo. 317; Howard v. Scott, 225 Mo. 711; Story's Equity (13 Ed.), sec. 187. (3) The facts being known to the plaintiff of the condition of the Viehmann estate, and wholly unknown to the defendant, and the intent to present a claim purposely concealed from the defendant, is a sufficient excuse for not discovering and opposing the judgment in the probate court. The affidavit of Louise Viehmann stating the amount of the personal estate and that it would not be necessary to petition for an order of sale of the real estate to pay the debts of the estate, taken with her statement to the defendant's mother to the effect that no sale of the real estate could be made until defendant arrived at full age, are such positive acts of deceit and fraud as will vitiate the judgment in the probate court, and justified the defendant and his mother in refraining from making inquiry or keeping watch upon the conduct of the administratrix. Payne v. O'Shea, 84 Mo. 133; Word v. Quinlan, 57 Mo. 425; Bates v. Hamilton, 144 Mo. 1; Irvine v. Leyh, 102 Mo. 207. (4) The claim for eighteen hundred and ninety dollars was false and fraudulent; its verification was false and a fraud, all done to vest the probate court with jurisdiction to entertain and allow the claim and order the real estate sold. And being fraudulent a court of equity has the inherent power to set aside the order of sale, the order approving the sale, and the deed, while title is held by one of the perpetrators of the fraud. Dorrence v. Dorrence, 242 Mo. 625; Irvine v. Leyh, 102 Mo. 207; Wonderly v. County, 150 Mo. 650. (5) After the adjournment of the term of the probate court at which the report of sale was approved and deed ordered executed and delivered, the case could not be reopened in the probate court, and this defendant had no means or relief except by a bill in equity. Smith v. Hauger, 150 Mo. 437.
W. F. Heideman for respondents.
(1) It appearing upon the fact of appellant's cross-bill that the judgment of the probate court authorizing the administratrix to sell the real estate, and the judgment of said court approving her report of the sale of such real estate, were regular in all respects, appellant could not attack those judgments in this proceeding. Wilson v. Wilson, 255 Mo. 528; Lieber v. Lieber, 239 Mo. 54; Jamison v. Wickham, 67 Mo.App. 575; Smith v. Sims, 77 Mo. 269; Sec. 211, R. S. 1919; Macey v. Stark, 116 Mo. 494; State ex rel. v. Dickman, 175 Mo.App. 550. (2) When fraud is alleged as the ground for setting aside judgments of the probate court which are regular upon their face, the evidence must show that actual fraud was practiced on the court in obtaining the judgments, as contradistinguished from judgments obtained on false or perjured evidence, or on a fraudulent, fictitious or illegal claim or demand, or for any matter which actually was, or could have been, presented and considered by the probate court in the judgments assailed. Wilson v. Wilson, 255 Mo. 536; Walter v. Null, 233 Mo. 112; Oldaker v. Spiking, 210 S.W. 62.
DAVIS, C. Railey and Reeves, CC., concur.
This is a statutory action in partition, filed in the Circuit Court of the City of St. Louis, on the 25th day of June, 1920, praying partition and sale of one certain parcel of improved city real estate, the petition alleging, in substance, that said real estate devolved on plaintiffs and the minor defendant from one Jacob Viehmann, father and grandfather respectively of the parties, which estate was then and had been in the course of administration in the probate court since December 27th previous.
Defendant's second amended answer, after admitting the granting of letters of administration to Louise Viehmann, and the heirship and interest of the parties, is a pleading in the nature of an equitable cross-bill, stating, in effect, that the testator died intestate, seized of two pieces of property other than the piece sought to be partitioned by plaintiff, which were sold by the plaintiff herein, who was the administratrix of said estate, as such, to the other plaintiff, Augusta Schroeder, to satisfy a judgment obtained in the probate court by plaintiff, Louise Viehmann, for services, against the estate of Jacob Viehmann, upon service on the administrator pendente lite, and which said judgment defendant alleges was duly allowed on the fourth day of March, 1920, and placed in the fifth class of demands against said estate; it further alleges and sets up fraudulent acts on the part of plaintiffs, by means of a conspiracy to cheat and defraud defendant, and prays that the judgment claim of plaintiff, Louise Viehmann, against decedent's estate, and the order and sale made to co-plaintiff herein, Augusta Schroeder, be set aside and held for naught, and that the title to said lots be divested out of the said Augusta Schroeder and restored to said estate and said lots be partitioned. Plaintiff's reply to said cross-bill was, first, a general denial, and, second, in substance, that the administratrix procured and published an order from the probate court directing her to sell the real estate to pay debts.
The trial court excluded evidence sought by defendant to be introduced under the cross-bill, dismissed his crossbill, and decreed partition and sale of the one piece of property set out in plaintiff's petition.
The evidence and such other matters as may be deemed important, will be referred to in the opinion.
The questions presented for determination are, first, may defendant collaterally attack and put in issue the verity of a judgment entered in the probate court, and, second, is defendant's cross-bill the proper pleading to act as a direct attack on the probate court judgment?
I. Besides alleging in his cross-bill that the claim of plaintiff, Louise Viehmann, was duly allowed, defendant's evidence tends to show the appointment of an...
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