Voorhis v. Gamble

• Decision Date: 30 April 1878
• Parties: ROBERT S. VOORHIS ET AL., Respondents, v. JOHN GAMBLE ET AL., Appellants.
• Court: Missouri Court of Appeals

6 Mo.App. 1

ROBERT S. VOORHIS ET AL., Respondents, v. JOHN GAMBLE ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

April 30, 1878

1. Where real estate is held by a trustee for the sole and separate use of a married woman, the power of disposition in the trustee being subject to the direction of the cestui que trust, and a proceeding is instituted to set aside the conveyance to the trustee for fraud, the cestui que trust is a necessary party defendant, and if he be dead at the date of the decree rendered in such proceeding the decree is inoperative as to his heirs and legal representatives.

2. The rule that a judgment void as to one defendant is void as to all applies only to judgments at law.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

MEAD & McCABE, for appellants: A judgment rendered against a party not living at the time is void.-- Bollinger v Chouteau, 20 Mo. 89. A void judgment may be assailed collaterally.-- Higgins v. Peltzer, 49 Mo. 152; Fithian v. Monks, 43 Mo. 502. The cestui que trust, as well as the trustee, should have been made a party.--Story's Eq. Pl., sect. 207; Hill on Tr. 847, 848.

R. S VOORHIS, for respondents: " In a bill against executors who are only executors in trust, it is not necessary to make the cestuis que trust or residuary legatees parties." -- Anonymous, 1 Vern. 261; Story's Eq. Pl., sects. 151, 215, 216. The respondents claim in hostility to the deed of trust, and a defence by the trustee in such a case is a defence by the cestui que trust. -- Wheeler v. Wheedon, 9 How. Pr. 293; Wakeman v. Grover, 4 Paige 23; Scudder v Voorhis, 5 Sandf. 271 (288); Russell v. Lasher, 4 Barb. 232. The heirs, who became by operation of law the cestuis que trust, were fully represented in the person of Margaret McDermott's trustee, and were in privity with him.-- McLaughlin v. McLaughlin, 16 Mo. 242; Potter v. Stevens, 40 Mo. 229.

OPINION

LEWIS P. J.

This is a suit in ejectment. On September 19, 1860, Andrew McDermott and Margaret, his wife, executed a conveyance of the land in controversy to Patrick McQueeney, in trust for the sole and separate use of the said Margaret and her heirs and assigns forever, with power in the trustee to sell and convey, lease, or mortgage the premises or any part thereof, as Mrs. McDermott might in writing direct. Some other conveyances were afterwards executed by McDermott and by his grantees therein, concerning all which it is sufficient to say that their general design was, apparently, to strengthen the title of Mrs. McDermott's trustee under the first deed. On December 8, 1864, a judgment was rendered against Andrew McDermott for $135, in favor of Isaac H. Erisman and his wife, Ann Erisman, who is the cestui que trust of the plaintiff in this suit. At a sheriff's sale under the judgment, on February 23, 1865, the property in controversy was purchased by Thomas H. Walsh, trustee of Ann Erisman and predecessor of the present plaintiff. Subsequently, in a suit instituted by Mrs. Erisman and her trustee against Patrick McQueeney and others, including Andrew McDermott and Margaret, his wife, a decree was rendered declaring that all the deeds of Andrew McDermott and wife and their several grantees were made in fraud and collusion, for the purpose of hindering, delaying, and defrauding the creditors of McDermott, and were " fraudulent and void as against the deed made and executed by the sheriff of the county of St. Louis, dated the 23d day of February, 1865, conveying to the plaintiffs the right, title, and interest of said Andrew McDermott, Margaret McDermott, Louis Eagle, and Andrew W Mead in and to" the property described. At the trial of the present cause the following facts were admitted, viz.: First, That the plaintiffs' title was derived from the decree above mentioned and the deeds therein described; Second, That Mrs. McDermott was an original party defendant in that suit, but was dead at the time of the rendition of the decree; Third, That the defendants herein ( sic ) are tenants under Mrs. McDermott or her grantees; Fourth, That the defendants Jane and Ellen McDermott are the heirs of Margaret McDermott, deceased. The question upon which the controversy turns is as to the validity or sufficiency of the decree to bind the defendants and authorize a judgment against them. The Circuit Court held it effectual to that end, and, sitting as a jury, found for the plaintiffs.

The plaintiffs contend that all the interest which Margaret McDermott had, or could transmit to the defendants, was represented by her trustee, Patrick McQueeney, against whom the decree was unimpeachable; that the cestui que trust was not a necessary party to the proceeding, and hence it was immaterial whether Mrs. McDermott was living or not at the time of the decree, and unnecessary for her heirs to have been introduced as parties. In support of these propositions we are referred to several authorities. We do not find among them, however, any cases parallel with the present. They are chiefly illustrations...