Walter v. Scofield

• Decision Date: 12 March 1902
• Parties: WALTER, Plaintiff in Error, v. SCOFIELD et al
• Court: Missouri Supreme Court

67 S.W. 276

167 Mo. 537

WALTER, Plaintiff in Error, v. SCOFIELD et al

Supreme Court of Missouri, First Division

March 12, 1902

Error to Cass Circuit Court. -- Hon. W. W. Wood, Judge.

Reversed and remanded (with directions).

Chas H. Winston for plaintiff in error.

(1) The undisputed evidence shows that at the sheriff's sale all the property was knocked down by the sheriff to Alice A Fish; and that Strother was not a purchaser of any of the property at that sale, and that the sheriff made no deed to Alice A. Fish. The deed of conveyance from the sheriff to Strother, purporting to convey the interest and title of Jacob Walter, is without authority of law and is void. No title has been conveyed by or under the sale. R. S. 1889 sec. 4954; R. S. 1899, sec. 3210; Strain v. Murphy, 49 Mo. 337; Louis v. Koenig, 55 Mo. 451; Davis v. Green, 102 Mo. 170; Lewis v. Chapman, 59 Mo. 371. The authority of the sheriff to make a deed is derived from the statute. Ware v. Johnson, 55 Mo. 500. Inasmuch as that authority is against common right, the statute must be strictly construed and strictly followed. Ryan v. Carr, 46 Mo. 483. (2) Inasmuch as the sheriff who executed Scofield's writ of attachment against Jacob Walter did not give notice to the actual tenants of the lands and tenements sought to be attached, at least ten days before the return day of the writ, and state the fact of such notice and the names of such tenants in his return; and inasmuch as defendant Jacob Walter was not notified personally nor summoned and did not appear in that action, the circuit court had no power to render judgment against Jacob Walter and award execution thereon against said lands and tenements. The judgment should be set aside, and all deeds and sales made under or in pursuance of such judgment or execution should be declared null and void. R. S. 1889, sec. 388; Lackey v. Seibert, 23 Mo. 94; Galpin v. Page, 18 Wall. (U. S.) 350. (3) The position of Scofield was one of the highest trust and of special confidence in his relation to Jacob Walter, his client, at the times of the judgment and sale in the attachment suit, and so long as that relationship continued Scofield could obtain no rights by judgment, sale or execution deed as against Jacob Walter or his property without Jacob Walter's consent. Eoff v. Irvine, 108 Mo. 378; Perry on Trusts, p. 246, sec. 202. The burden is upon Scofield and the other defendants claiming through him to vindicate from all suspicion the transactions by which they claim to have acquired Jacob Walter's property without his consent. Perry on Trusts, pp. 246-247, sec. 202. And if they can not produce evidence which puts the transaction clearly beyond all doubt or question, the judgment, sale and deeds must be set aside. Perry on Trusts, p. 248, sec. 202. The secret suit by attachment and the treachery of Scofield would have been fraudulent even if no attempt were made thereby to rob, under the forms of law, without actual notice to Jacob Walter his client. In such a proceeding Scofield "was and is bound to pursue the hair line of legal and formal strictness, from which, if he deviate in never so small degree, he is doomed to fall." Byers v. Surget, 60 U. S. (19 How.) 312; Baker v. Humphrey, 101 U.S. 494; Henry v. Ramon, 25 Pa. St. 354. Courts of equity have inherent power to set aside judgments obtained by fraud, and that power is not taken away by the statute providing for a review of a judgment obtained on constructive notice. Byers v. Surget, supra; Irvine v. Leyh, 102 Mo. 200; McClanahan v. West, 100 Mo. 309; Payne v. O'Shea, 84 Mo. 129; Sweet v. Maupin, 65 Mo. 65. The conduct of Scofield in secretly instituting the attachment suit and failing to inform either L. S. Walter or Jacob Walter of the institution thereof or of his purpose, and his continuance of the relationship of attorney and client between them without an intimation of a change or intended change on his part and without any notice to Jacob Walter of his claim; the false statements made to the court in order to be permitted to take a default without actual notice to Jacob Walter, his client; the strange combination of Scofield, Davenport and Mrs. Fish in the pretended assignment of the judgment and sale of the land; the practically admitted combination between Scofield and Strother and Davenport at the sheriff's sale; the gross inadequacy of the price for which the land is pretended to have been sold at the sale; the bidding by Givan in Mrs. Fish's name under the instructions of Scofield, and the pretended bidding by Strother there after he had forbidden the sale publicly; and the secret purchase of the land including the McMannus lots by Strother, attorney for McMannus, to forbid and prevent the sale in the proceedings; the sheriff's deed to Strother instead of to Givan or Mrs. Fish for all the land including the McMannus lots, and including the lot L. S. Walter had authorized Scofield to sell to the widow; all of these undisputed facts are proof, and any one of them is sufficient, showing fraud in the procurement of the judgment and in the sale. These were enough to entitle Jacob Walter to relief, even if the other facts and circumstances in evidence did not demonstrate the existence of fraud in all its hideous reality. Davis v. McCann, 143 Mo. 172; Merritt v. Poulter, 96 Mo. 237; Goode v. Crow, 51 Mo. 212; Byers v. Surget, supra; Griffith v. Judge, 49 Mo. 536; Wagner v. Phillips, 51 Mo. 117; Rogers v. Lee, 9 F. 721; Lane v. Black, 21 W.Va. 617; Rogers v. Marshall, 3 McCrary (U. S.) 76; Woods v. Downs, 18 Ves. 120; Briant v. Jackson, 99 Mo. 585; Curd v. Lackland, 49 Mo. 451; Sanderson v. Glass, 2 Ark. 296; Henry v. Ramon, 25 Pa. St. 354; Zeigler v. Hughes, 55 Ill. 288; Harper v. Perry, 28 Iowa 57; Wheeler v. Willard, 44 Vt. 640; Case v. Carroll, 35 N.Y. 385; Mason v. Ring, 3 Abb. (N. Y. App.) 210. (4) Given and Strother both stand in the position of attorneys in the proceedings, and, therefore, can not pretend to be innocent or bona fide purchasers for value without notice. Gott v. Powell, 41 Mo. 416; Galpin v. Page, 18 Wall. (U. S.) 350; Harness v. Cravens, 126 Mo. 233; Taaffe v. Kelley, 110 Mo. 127; Muldrow v. Robison, 58 Mo. 331; Jennings v. Todd, 118 Mo. 296; Stephenson v. Smith, 7 Mo. 610; Martin v. Jones, 72 Mo. 23; Freeman v. Moffitt, 119 Mo. 280; Henry v. Sneed, 99 Mo. 407; Meier v. Blume, 80 Mo. 179; Conn. M. L. I. Co. v. Smith, 117 Mo. 261; Barrett v. Davis, 104 Mo. 549; Davis v. Briscoe, 81 Mo. 27; Casey v. Steinmeyer, 7 Mo.App. 556; Ridgeway v. Holliday, 59 Mo. 444. (5) But Strother stands also in the position of having forbidden the sale and thereby cast a cloud on the proceedings and depressed bidding publicly, and then secretly buying the title of the pretended purchaser. Whether this was by fraud or mistake, he can not hold title thus acquired. Griffith v. Judge, 49 Mo. 540; Neal v. Stone, 20 Mo. 294; Abbey v. Stewart, 25 Pa. St. 416; Wooton v. Hinkle, 20 Mo. 293; Stewart v. Nelson, 25 Mo. 312. (6) Strother has no deed except the sheriff's deed, which at most can be under the circumstances no more than a quitclaim deed in effect, if it is valid at all, while Colburn and Scott are grantees in quitclaim deeds. Colburn has not even paid the consideration, but gave his note to be paid only when the title was clear. They all knew Walter's tenant was and had long been in actual possession. Neither of them was an innocent or bona fide purchaser for value without notice; but they purchased, if at all, with notice of and subject to all equities. Scott was bound by whatever was notice to Strother, his agent and partner. Ridgeway v. Holliday, 59 Mo. 44; Man v. Best, 62 Mo. 491; Stoffell v. Schroeder, 62 Mo. 147; Merrett v. Poulter, 96 Mo. 237; Halsa v. Halsa, 8 Mo. 303; Arnholt v. Hartwig, 73 Mo. 485; Corrigan v. Schmidt, 126 Mo. 304; Digby v. Jones, 67 Mo. 104; Stivers v. Horne, 62 Mo. 473; Austin v. Loring, 63 Mo. 19; Eoff v. Irvine, 108 Mo. 378; Greenlee v. Marquis, 49 Mo.App. 290; Paul v. Fulton, 25 Mo. 156; Cassady v. Wallace, 102 Mo. 575; Wetmore v. Woods, 62 Mo.App. 265; Campbell v. Laclede Gas Light Co., 84 Mo. 352.

Given & Glenn and James T. Burney for defendants in error.

(1) The notice of publication in the attachment suit of Scofield v Walter, conformed to the requirements of the statute, and was sufficient. R. S. 1889, sec. 581; Haywood v. Russell, 44 Mo. 252; Young v. Downey, 150 Mo. 317; State ex rel. v. Tucker, 32 Mo.App. 620; Burnes v. Burnes, 61 Mo.App. 612; 17 Am. and Eng. Ency. Pldg. and Prac., p. 978. (2) Although the return of the sheriff in the attachment suit of Scofield v. Walter does not show that notice was served on the tenant in possession of the farm, yet this fact will not vitiate the proceedings in that action nor affect the sale under the judgment therein. Durossett's Admr. v. Hale, 38 Mo. 346; Huxley v. Harold, 62 Mo. 516; Stanton v. Boschert, 104 Mo. 393; Bryant v. Duffy, 128 Mo. 18. (3) The transfer of the bid on the land from Mrs. Fish to Strother, before the deed was made by the sheriff under the execution sale, did not invalidate the sale. No title ever passed to Mrs. Fish, because title does not pass in such case until the money is paid and the sheriff's deed is delivered. Strain v. Murphy, 49 Mo. 337; Leach v. Koenig, 55 Mo. 451; Blodgett v. Perry, 97 Mo. 263; Cravens v. Gordon, 53 Mo. 287; Massey v. Young, 73 Mo. 260; Carter v. Spencer, 7 Ired. (N. C.) 14. (4) Even if Walter originally had a good defense against the claim of Scofield for attorney's fees, it is too late to assert that defense in this case. There was no fraud practiced by Scofield in obtaining the judgment. "Whatever may be the rule elsewhere, it is well settled in this State that in order to set aside a judgment for fraud in a direct proceeding for that...