Williams v. Butterfield
| Decision Date | 24 November 1908 |
| Parties | E. J. WILLIAMS, Appellant, v. OLIVIA BUTTERFIELD et al |
| Court | Missouri Supreme Court |
Appeal from St. Francois Circuit Court. -- Hon. C. A. Killian Judge.
Affirmed.
Martin L. Clardy and James F. Green for appellant.
(1) Defendants Darby and Hobson having purchased the property pending the appeal, are bound by the decision heretofore rendered in this case. O'Reilly v. Nicholson, 45 Mo. 160; Becker v. Strocher, 167 Mo. 306; Burnham v. Smith, 82 Mo.App. 47; Bridge Co. v Stone, 174 Mo. 35; Holloway v. Holloway, 103 Mo. 283; Hart v. Steedman, 98 Mo. 452; Turner v. Babb, 60 Mo. 342; McIlworth v. Hollander, 73 Mo. 112. (2) Where a cause is remanded with directions as to further procedure, it is not within the power of the trial court to reopen the case and try it anew. Chouteau v. Allen, 74 Mo. 59; Reis v. McDaniel, 131 Mo. 682; Stump v. Hornback, 109 Mo. 272; Shroyer v. Nicoll, 67 Mo. 589; Hurck v. Erskine, 50 Mo. 116; Young v. Thrasher, 123 Mo. 312; May v. Crawford, 150 Mo. 504; Baker v. Railroad, 147 Mo. 152. (3) The case having been remanded with specific directions to the trial court to try one question only, it was error to receive testimony upon any other issue. State ex rel. v. Edwards, 144 Mo. 467; Reis v. McDaniel, 131 Mo. 682; Tourville v. Railroad, 148 Mo. 623; Riley v. Sherwood, 155 Mo. 37.
Edward A. Rozier and Robert L. Wilson for respondents.
(1) The facts being essentially different from those on the former appeal, this court will not be bound by its former opinion. Crispen v. Hannovan, 86 Mo. 168; Fuchs v. St. Louis, 167 Mo. 653; May v. Crawford, 150 Mo. 525; Vaughn v. Railroad, 78 Mo.App. 644; Grumley v. Webb, 48 Mo. 562. (2) This court will not permit an injustice to be worked by reason of a former opinion. Bird v. Sellers, 122 Mo. 32; Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 370; Vaughn v. Railroad, 78 Mo.App. 643; Bealey v. Smith, 158 Mo. 523; Bank v. Douglas, 146 Mo. 53; Chamber's Adm. v. Smith, 30 Mo. 159; Sparks v. Brown, 46 Mo.App. 534. (3) The appellate courts are always open, even upon the second appeal, for the correction of error and the administration of justice. Rutledge v. Railroad, 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 370; Vaughn v. Railroad, 78 Mo.App. 643; Bird v. Sellers, 122 Mo. 32; Bealey v. Smith, 158 Mo. 522; Baker v. Railroad, 147 Mo. 152; Hamilton v. Marks, 63 Mo. 167. (4) The former opinion in this case is not stare decisis, hence the court will do justice between the parties on the facts. Bealey v. Smith, 158 Mo. 523; Hamilton v. Marks, 63 Mo. 167. (5) The facts, whether by error or design, not having been presented to the Supreme Court in the first appeal, the doctrine of res adjudicata should not apply. Baker v. Railroad, 147 Mo. 152; Mfg. Co. v. Troll, 77 Mo.App. 344. (6) The deed from Bohlcke and wife to Wolfenden having been duly acknowledged, filed for record and in fact duly recorded, imparted notice to all subsequent purchasers. Secs. 692, 2419, R. S. 1889. (7) The deed from Bohlcke and wife being in the chain of title, all subsequent purchasers were bound to take notice. Wolfe v. Dyer, 95 Mo. 545; Tydings v. Pitcher, 82 Mo. 384. (8) Plaintiff under the allegations of his petition has entirely failed to prove his cause of action.
This is an action brought in the circuit court of Stoddard county, Missouri, to quiet the title to certain lands in Stoddard county, to-wit, section eleven, township 26, range 12, east.
The amended petition states in substance that on the 13th of December, 1888, Henry Bohlcke was the owner of the said lands and that on that date one Francis J. Peters falsely and fraudulently represented to Henry Bohlcke, with intent to deceive him, that he was the duly authorized agent of the Electrolytic Gas Generator Syndicate of Detroit, Michigan, to sell the stock of said syndicate; that said syndicate was duly incorporated under the laws of Michigan, and had a paid-up stock of one million dollars, and would be one of the most prosperous syndicates in the country; that an investment in said stock would bring to the investor quick and larger profits than any other investment possibly could; that said Henry Bohlcke, relying wholly upon the said representations of said Peters and having no knowledge of the value of said stock, accepted as truth what Peters had said, and having no means of obtaining any information as to the value thereof, agreed to sell said real estate to said Peters for three shares of the capital stock of said syndicate, and at the same time said Bohlcke and wife made out and acknowledged a deed to said land leaving the consideration clause blank and the space in which the grantee's name was to be written was equally blank, and in that condition the said deed was delivered to said Peters, said Bohlcke's acknowledgment first having been erased, and in return for said deed said Peters delivered to said Henry Bohlcke three shares of the stock of said syndicate; that said deed was not to be recorded, nor the grantee's name placed therein until said Bohlcke could investigate said syndicate, and said deed was delivered to said Peters merely as an evidence of a contract to be afterwards performed. That said land was to be conveyed to a trustee, the conditions of which trust were to be afterwards determined and decided upon when said trade was finally consummated. That all of the statements made by said Peters were false and were made for the sole purpose of deceiving said Bohlcke and procuring said real estate; that no such corporation as the Electrolytic Gas Generator Syndicate was ever organized under the laws of Michigan and the said syndicate and its seven shares were wholly fictitious, and of no value, and were so known to said Peters at the time of said transfer, and that said Bohlcke never received any other consideration from said Peters, or from the defendants for the said land, except said worthless shares; that after said deed was so delivered in said condition to said Peters, said Peters wrote or caused to be written, the name of Frederick Wolfenden as grantee in said deed, but left the consideration clause blank, and in said condition he caused said deed to be recorded in book 8, page 362, of the deed records of Stoddard county, Missouri; that said Wolfenden knew or might have known of the facts above related by the use of ordinary care; that afterwards on the 27th of March, 1889, the pretended conveyance was pretended to be executed, designing to purport to convey said real estate by said Wolfenden to the defendants, John Abbot and Olivia L. Butterfield, which said pretended deed is recorded in the deed record of Stoddard county in book W, page 351, but plaintiff states that said Wolfenden is a fictitious person and did not exist; that defendants at the time knew of said related facts and of the fraud practiced on said Bohlcke in obtaining said deed from him. That afterwards on the 15th of December, 1893, defendant John Abbott and wife executed a mortgage on said real estate to defendant Charlotte J. Walker, recorded in book Z, page 608, of the records of Stoddard county, but that said Charlotte knew of the above related facts and of the fraud employed in obtaining said deed from said Wolfenden; that afterwards on the 3d of March, 1893, upon and after due process of law, said Bohlcke obtained a judgment against Frederick Wolfenden on account of said fraud divesting said Wolfenden of the title of said land and vesting the same in Henry Bohlcke; that on the 2d day of April, 1894, said Bohlcke and wife conveyed said real estate to the plaintiff, Edward J. Williams, and said plaintiff, Edward J. Williams, paid a valuable consideration for said real estate, and knew nothing of the claims or pretended claims on the part of any defendant, but believed that he was getting a good and valid title to said real estate; that he knew of none of the pretended conveyances above recited, or of any claims on the part of the defendants, had no knowledge or information which would lead him to believe there were any claims to said real estate at that time other than those of said Henry Bohlcke; that plaintiff paid taxes on said real estate from and after said conveyance until 1897, believing that he had title thereto, and defendants knew that he was paying said taxes in good faith, and did not inform him of other claims; that defendants were therefore estopped by said silence from setting up claims against said plaintiff. There was a prayer that the rights and interest of the respective parties be determined and defendants divested of any title they have acquired in said real estate, and the title be declared in the plaintiff.
The defendant Olivia Butterfield filed a general denial of the said petition, and alleged she was the owner of said property sued for and had paid for the same in good faith.
The case was tried in the circuit court of Stoddard county and a judgment rendered for defendants. Plaintiff appealed to this court and the judgment was reversed and the cause remanded. The opinion of this court will be found in the 182 Mo. 181, 81 S.W. 615.
After the cause was remanded, the circuit court of Stoddard county granted a change of venue to St. Francois county, and it there appearing that the original files in the case had been lost, leave was obtained to supply the record, which was done. In the St. Francois court John J. Hobson and S. Darby upon their own applications, were made defendants and filed their separate answers, in which they adopted the answers of the defendants, Butterfield and Abbott, and denied all the allegations of the petition, and allege that they had purchased said lands pending the appeal in the Supreme Court; that th...
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