Wortham v. Marten

• Decision Date: 04 June 1945
• Docket Number: 39267
• Citation: 188 S.W.2d 11,354 Mo. 1
• Parties: Henrietta Wortham v. Ray L. Marten, Walter L. Sadlowski and Manchester Bank of St. Louis; Ray L. Marten, Appellant
• Court: Missouri Supreme Court

188 S.W.2d 11

354 Mo. 1

Henrietta Wortham v. Ray L. Marten, Walter L. Sadlowski and Manchester Bank of St. Louis; Ray L. Marten, Appellant

No. 39267

Supreme Court of Missouri

June 4, 1945

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed.

Sylvan Agatstein for appellant.

(1) Orders of sale of real estate and final settlements of probate courts are of equal dignity with judgments of courts of general jurisdiction and have the full force and effect of final judgment. The lower court so found and held. State ex rel. Ellsworth v. Fidelity & Deposit Co. of Maryland, 147 S.W.2d 131, 235 Mo.App. 850; Scanland v Walters, 26 S.W.2d 603, 305 Mo. 415; Crump v Hart, 176 S.W. 1089, 189 Mo.App. 572; State ex rel. Pountain v. Gray, 17 S.W. 500, 106 Mo. 526; Camden v. Plain, 91 Mo. 117, 4 S.W. 86; Cox v. Boyce, 54 S.W. 467, 152 Mo. 576. (2) Orders of sale of real estate and final settlements of the probate court, like final judgments of courts of general jurisdiction, may not be attacked for fraud unless such fraud was practised upon the court in the very act of procuring the judgment. Such fraud does not exist even where the judgment was founded on a fraudulent instrument or perjured testimony, or where it goes to the merits of the cause itself. One attacking a final judgment cannot say that he was deceived or misled by his opponent by anything pertaining to the merits, but only as to those matters that prevented him from appearing to defend. The lower court erred in failing to find that the type of fraud essential to impeach a final judgment did not herein exist and in failing to find that all of the matters and things herein necessary to support respondent's case were res adjudicata. Fadler v. Gabbert, 63 S.W.2d 121, 333 Mo. 851; Doud v. Lockett, 215 S.W. 769; United States v. Throckmorton, 98 U.S. 61; Irvine v. Leyh, 102 Mo. 200, 16 S.W. 10; Ellsworth v. Fidelity & Deposit Co. of Maryland, 147 S.W.2d 131; Scanland v. Walters, 26 S.W.2d 603; Hockenberry v. Cooper County State Bank, 88 S.W.2d 1030; Hamilton v. McLean, 139 Mo. 678, 41 S.W. 224; Hamilton v. McLean, 169 Mo. 151, 68 S.W. 930; Ross v. Pitcairn, 179 S.W.2d 35; State ex rel. Pountain v. Gray, 17 S.W. 500, 106 Mo. 526. (3) The evidence in its true light shows that the acquisition of the real estate in question by appellant, Ray L. Marten, was neither directly or indirectly connected with the order of private sale of the probate court, but he acquired same through the efforts of the defendant, Manchester Bank, in collecting a legitimate debt from the estate. This may be deduced from the probate court record, as well as from the evidence herein and is res adjudicata. The lower court in failing so to find and in finding that appellant contrived to acquire the property in violation of law, was in error. First Natl. Bank & Trust Co. of Kansas City v. Bowman, 15 S.W.2d 842; Beedle v. Campbell, 100 F.2d 98. (4) Equity aids the vigilant and not those who sleep upon their rights. The respondent having failed to exercise diligence during the administration of the probate estate cannot now open up the proceedings in that court. The court therefore erred in permitting respondent to introduce evidence which could have been introduced in the probate court had she been diligent therein. Townsend v. Maplewood Inv. & Loan Co., 173 S.W.2d 911, 351 Mo. 738; Jones v. Rush, 57 S.W. 118, 156 Mo. 364. (5) The court of equity cannot decide issues upon crude notions of what is right and wrong but must follow the law. The court below was influenced by the fact that respondent did not receive payment of her sixth class demand, rather than by considerations of law and equity. Sell v. West, 125 Mo. 621, 28 S.W. 969.

Robert M. Zeppenfeld for respondent.

(1) An executor or administrator cannot become the purchaser of his deceased's real estate at public or private sale, directly or indirectly. Sec. 161, R.S. 1939. (2) The indirect purchase of real estate belonging to the estate of the deceased by his executor under an order of sale to pay debts of deceased is void. Sec. 161, R.S. 1939; Gilmore v. Thomas, 252 Mo. 147, 158 S.W. 577. (3) Equity will grant relief and set aside an order of probate court approving a sale of real estate in a direct proceeding for that purpose for fraud, upon a showing of facts that executor purchased his deceased's real estate at private sale indirectly, where executor by his fraud and deceit concealed fact until after final settlement of estate. Covington v. Chamblin, 156 Mo. 574, 57 S.W. 728; 34 C.J., p. 470, sec. 738. (4) A judgment otherwise final will be set aside for fraud, when the fraud went to extrinsic collateral acts or matters not before the court for examination or determination in the proceeding in which the judgment was rendered. 34 C.J., p. 470, sec. 738; Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031.

OPINION

Clark, J.

Suit to set aside a deed executed by appellant as executor of the estate of his father, Edward R. Marten, deceased, to the Manchester Bank, a quitclaim deed executed by the Bank to one Sadlowski and a quitclaim deed executed by Sadlowski to appellant as an individual.

Edward R. Marten owned the land at his death which occurred in January, 1932. The same month appellant qualified as executor. Respondent is the owner of a claim for $ 7500.00, duly allowed and placed in class six, no part of which has been paid. On March 5, 1934, on petition of the Bank as owner of a fifth class claim for $ 6,000.00, the probate court ordered the land sold to pay debts. On April 9 the appellant as executor reported the land sold at private sale to the Bank for $ 4100.00; on April 20 the report was approved; on April 24 a deed to the Bank was delivered and recorded. On August 8 the Bank delivered a quitclaim deed to Sadlowski who recorded his deed on the same day. All this was in the year 1934. On August 10, 1934, Sadlowski delivered a quitclaim deed to appellant, which was not recorded until December 21, 1939. This was about thirty days after the approval of appellant's final settlement as executor and after the expiration of the term of the probate court at which the final settlement was approved.

The allowed claim of the Bank was founded upon a note signed by Edward R. Marten (the deceased) and Ray L. Marten (the appellant), but the proceeds of the loan were placed to the credit of Ray L. Marten only. After it received its deed from appellant as executor, the Bank never took possession of the real estate or exercised any control over it. It collected no rents, but continued to pay rent to a company of which appellant was the sole stockholder for an electric sign on the premises. It is admitted that Sadlowski paid nothing for the quitclaim deed he received from the Bank and received nothing for his quitclaim deed to appellant. In fact Sadlowski was paid $ 10.00 for acting as a straw. Appellant from time to time made...