Winning v. Brown

• Decision Date: 23 December 1936
• Docket Number: 32626
• Citation: 100 S.W.2d 303,340 Mo. 178
• Parties: Blair N. Winning v. Marcy K. Brown, Marcy K. Brown, Trustee, Kent Brown et al., Appellants
• Court: Missouri Supreme Court

100 S.W.2d 303

340 Mo. 178

Blair N. Winning v. Marcy K. Brown, Marcy K. Brown, Trustee, Kent Brown et al., Appellants

No. 32626

Supreme Court of Missouri

December 23, 1936

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

M E. Casey for trustee; Marcy K. Brown for Kent Brown.

Under Section 774, Revised Statutes 1929, a petition may be challenged at any time for failure to state a cause of action, or because of lack of jurisdiction of the subject matter. Piller v. Ins. Co., 220 Mo.App. 1344, 296 S.W. 464. Failure in petition to state facts sufficient to constitute a cause of action, is radical and incurable. It is not helped by the Statute of Jeofails, or a failure to take advantage of it in the court below. It may be taken advantage of in the appellate court for the first time. Weil v Greene County, 69 Mo. 286. "Where the lower court was without jurisdiction, the appellate court, will nevertheless entertain appeal, for the purpose of reversing a judgment for want of jurisdiction, and dismissing the case, or directing its dismissal by the lower court." 3 C. J., pp. 367, 368.

Gossett, Ellis, Dietrich & Tyler for respondent; A. N. Gossett of counsel.

(1) Respondent's petition sufficiently states cause of action under Section 1520, Revised Statutes 1929. That statute is as broad as language can make it, and the petition shows that plaintiff either has a claim under an alleged trust deed or else, that being void, he is entitled to contingent dower or curtesy estate in the lands described in the petition. A contingent interest is sufficient under the statute to maintain a suit. (a) Under the statute any person, entitled to any interest, vested, contingent, present or future, is expressly given the right to maintain an action and have the matter adjudicated, this in order that such adjudications may be had while witnesses are living, before memories are effaced and other evidence and proof existent. (b) This statute is highly remedial and should be liberally construed. It would be folly to interfere with the decree in this case simply because respondent did not expressly say in his petition: If said deed is void then plaintiff is entitled to his contingent dower interest (or curtesy interest) in said lands. It is not necessary to consider in this case whether respondent's marital estate was contingent dower or curtesy. When the court decreed his wife to be fee simple owner, that was sufficient for this case so far as appellants are concerned, they being not interested in that respect and none of the other parties appeal. Jacobs v. Walrod, 317 Mo. 1133; Ebbs v. Neff, 325 Mo. 1182; Rutledge Coal Co. v. Dent, 308 Mo. 547; Ball v. Woolfolk, 175 Mo. 278; Huff v. Land & Improvement Co., 157 Mo. 65; State ex rel. Bernero v. McQuillin, 246 Mo. 517; Graves v. Chapman, 248 Mo. 83; Barron v. Store Co., 292 Mo. 196; Fountain v. Starbuck, 209 S.W. 900; Audsley v. Hale, 303 Mo. 451; Canty v. Halpin, 294 Mo. 118; Williamson v. Frazee, 294 Mo. 320; Bray v. Thatcher, 28 Mo. 129. (2) This court must assume, under the rule of intendment in support of the decree, absent a bill of exceptions showing the evidence, that it was convincingly proven. (a) That the paper writing purporting to be a trust deed was not delivered by Pierre S. Brown and wife; or that it was not intended to take effect until after the death of Pierre, owner of the lands described therein. (b) That the paper writing purporting to be a trust deed was procured by the exercise of undue influence of the leading appellant, Marcy K. Brown, had and exercised over and on the grantor-landowner, Pierre S. Brown. (c) That the paper writing in question was never, in fact, executed by Pierre S. Brown and wife. Such being the case the purported trust deed was for all or any of such reasons properly declared void. Wren v. Sturgeon, 184 S.W. 1036; Terry v. Glover, 235 Mo. 550; Rausch v. Michel, 192 Mo. 293; Bunn v. Stewart, 183 Mo. 375; Coles v. Bradford, 289 Mo. 97; Van Huff v. Wagner, 315 Mo. 917; Martin v. Baker, 135 Mo. 503; Yosti v. Laughran, 49 Mo. 594; Lawson v. Meffert, 289 Mo. 338; Garvin v. Williams, 44 Mo. 465; Miller v. Simmons, 5 Mo.App. 33, 72 Mo. 669; Rankin v. Patton, 65 Mo. 378; Cadwallader v. West, 48 Mo. 483; Bybee v. S'Renco, 316 Mo. 517; Barrett v. Ball, 101 Mo.App. 288; Dimity v. Dimity, 62 S.W.2d 859; Gott v. Dennis, 296 Mo. 66.

Cooper, Neel, Kemp & Sutherland for Gertrude Winning and A. L. Cooper, guardian ad litem.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This case, coming to the writer on reassignment, is an appeal on the record proper. The suit was filed by Blair N. Winning against certain defendants, hereinafter mentioned, to declare void a certain trust deed and to try and determine title to property described in said trust deed, located in Jackson County, Missouri. The trial court heard the case upon the merits and entered a decree declaring the trust deed void and further decreeing that the defendant, Gertrude Winning, was the owner in fee of the property. The decree further ordered that Marcy K. Brown, as trustee, should, by appropriate deeds, convey the property to the defendant, Gertrude Winning. From this decree the defendant Marcy K. Brown, individually, and as trustee under the trust deed, and the defendant Kent Brown, appealed. The other defendants did not appeal.

The defendants were Marcy K. Brown, individually, and as trustee under the trust deed, Marcy K. Brown, Jr., and his wife, also Kent Brown, Gertrude Winning, the wife of plaintiff, Jane Blair Winning and Nancy Janet Winning, minors and children of plaintiff and defendant, Gertrude Winning, also Marcy K. Brown, Jr., as administrator of the estate of Pierre S. Brown, deceased.

The controversy arose over a trust deed alleged to have been executed by Pierre S. Brown and wife, the parents of the defendant, Gertrude Brown Winning. Pierre S. Brown was the brother of Marcy K. Brown. The defendants, Marcy K. Brown, Jr., and Kent Brown, were nephews of Pierre S. Brown and sons of Marcy K. Brown.

Appellants assert that the judgment of the trial court must be reversed because the plaintiff did not have such an interest in the property as to authorize the filing of the suit, and, therefore, the trial court did not acquire jurisdiction over the subject matter. We will only mention such allegations of plaintiff's lengthy petition as we deem necessary to an understanding of the issues presented to the trial court. Plaintiff asserted that he was the husband of the defendant, Gertrude Winning; that his wife was the only child of the deceased, Pierre S. Brown, and, therefore his sole heir; that the wife of Pierre S. Brown was deceased; that Pierre S. Brown died intestate, owning certain real estate described in the petition, located in Jackson County, Missouri, and also land in Texas County, Oklahoma. The petition further stated that a certain trust deed appeared on record, purporting to have been executed by Pierre S. Brown and his wife, conveying to the defendant Marcy K. Brown the property described in the petition in trust for certain purposes. The details of the trust therein created need not be stated. However, upon the happening of certain events, the defendants, Marcy K. Brown, Jr., and Kent Brown, were given an interest in the property. The petition alleged that the trust deed also contained what is termed an in terrorem clause; that if any person should contest the validity of the trust deed such person forfeited all interest thereunder. The petition further alleged that the trust deed was void because it was never delivered by the deceased, and, therefore, was never legally effective, also that the defendant Marcy K. Brown was the brother and legal advisor of the deceased, and that the deed, if ever executed, was the result of undue influence on the part of Marcy K. Brown for his own pecuniary benefit and profit and to the advantage of his two sons. The trust deed provided that the trustee was to receive a compensation of ten per cent on the gross income from the property. The petition prayed for a hearing and determination, by the court, of the respective rights and interests of the several parties plaintiff and defendants.

We need discuss only the answers filed by appellants. Marcy K. Brown, individually, and as trustee, filed a lengthy answer and cross-bill setting forth in substance the facts relating to the alleged execution of the trust deed and its provisions, also admitting certain allegations of the petition. The answer further alleged that the defendant, Gertrude Winning, the wife of plaintiff, had, with the trustee's consent, collected large sums as rent from the tenants occupying the property subject to the trust; that she had not accounted to the trustee for said sums and asked the court to require the defendant, Gertrude Winning, to account to the trustee for the money so collected. The trustee, in his answer, also asked the court to appoint a receiver for the property pending the outcome of the litigation. The answer concluded as follows:

"Defendant trustee further states that plaintiff herein, Blair N Winning, and defendant, Gertrude Winning, his wife, have connived together to contest the aforesaid trust deed and to that end have brought this suit in the name of Blair N Winning; that the aforesaid Gertrude Winning claims to be in the absolute, open, continuous and exclusive possession of the aforesaid trust property and is claiming to own and control same contrary to and in violation and defiance of the terms of the aforesaid trust deed; that said defendant, Gertrude Winning, by and through the suit filed herein by her husband and through her action and conduct in claiming absolute right and ownership to said trust property is...