페이지 이미지


facts is that they be unprejudiced, or, in oth-13. Quieting title 52–Judgment In statutory er words, with that discrimination which proceeding to quiet title did not invest plainshould characterize the performance of their

tiffs with new title. duty, that their minds may be open only to Judgment under Rev. St. 1899, $ 650, adthe consideration of such facts as are ad- judging plaintiffs to be owners in fee, and that mitted in evidence. The jurors objected to defendants had no right, title, or interest, did in this case met this measure and the appel- not invest plaintiffs with new title, but merely lant has no just ground of complaint on this determined what title they already had.

4. Judgment 429-Parties failing to appear [8] V. The facts in evidence are ample to in response to notice in suit to quiet title held sustain the verdict. Appellant was fuly iden

estopped to assert claim thereto. tified in the very attempt to commit the Nonappearing parties could not assert, in crime. His partially covered face and armed suit to set aside judgment obtained in suit to and threatening attitude leave no doubt in quiet title, that they have title as remainderthe reasoning mind as to his purpose. That men under will of prior holder of land. the crime he was attempting to perpetrate 5. Constitutional law eww 190 - Quieting title was not consummated is due wholly to his Cw19_Statute providing for bringing of suits ineffectual efforts to close the vault doors to quiet title held not violative of Constitu.

tion. and the consequent fear of apprehension arising from his failure so to do. He rests his

Rev. St. 1899, 8 650, providing for the bringdefense on his denial of guilt and the testi- ing of an action to quiet title and to adjudge mony of his relatives that he was not dress- Const. art. 2, $ 15, by reason of authorizing the

rights of parties in land, held not violative of ed the day of the crime as described by the divesting of vested estates of plaintiffs, creatwitnesses for the state. The jury saw all ed under will of prior holder of land. of these witnesses, heard them testify, and gave credence to those for the state, The

6. Judgment 461(5)-Judgment set aside

only for actual and positive fraud, in fact es. record offers no reason for disturbing their

tablished by clear and cogent evidence. verdict. If it be deemed necessary to resort to prec- picion of fraud, but only for actual and posi

Judgment will not be set aside on mere susedents to sustain the foregoing conclusion, tive fraud in fact, established by clear, strong, the following cases will be found to be illus- and cogent evidence, leaving no reasonable doubt trative of the quantum of evidence necessary of its existence. to sustain a conviction. State v. Bater (Mo. 7. Judgment 461(5) - Charge of fraud in Sup.) 232 S. W. 1012; State v. Lasson, 292

suit to set aside judgment quieting title held Mo. 155, 238 S. W. 101; State v. Affronti,

not supported by evidence. 292 Mo. 53, 238 S. W. 106.

In suit to set aside a judgment quieting tiThe appellant has been accorded all of tle, charge that defendants had obtained such the rights to which one accused of crime is judgment by fraud, in that they falsely alleged entitled. There remains, therefore, no. al- under oath that devisees, heirs, and assigns of ternative but an affirmance of this judgment. prior holder of land were unknown to them, so It is so ordered.

that service might be made by publication, held All concur.

not supported by evidence, there being no showing that defendants neither knew nor were chargeable with notice of existence of will under which plaintiffs claimed or of the names and

whereabouts of devisees thereunder. McFADIN et al. v. SIMMS et al. (No. 24668.)

8. Judgment en 725(4)-Judgment in suit to (Supreme Court of Missouri, Division No. 1.

quiet title held res judicata as to plaintiffs' July 1, 1925.)

rights as remaindermen under will of former 1. Quieting title On 31-Word "plaintiff" in

owner. statute, includes all who by record prosecute Where plaintiffs' claims as remaindermen to action.

property under will of former holder of land In Rev. St. 1899, § 580, authorizing plain- were not presented to court in a suit to quiet tiff to proceed against unknown parties by pub- title, held that judgment rendered in that suit, lication in suit to quiet title, word "plaintiff” adjudging defendants to be the owners in fee is used in collective sense, including all who by simple of the land, was nevertheless binding record prosecute action, and, where more than upon the plaintiffs, and that question was reg one plaintiff, word is construed as “plaintiffs." judicata in a suit to set aside such judgment

quieting title for fraud. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Plain- 9. Judgment w725(4) - Judgment adjudging tiff.]

party to be owner in fee simple of land con

sequently adjudged that there were neither 2. Quieting title On 31-Verification of petition life tenants nor remaindermen therein. by one plaintiff sufficient under statute au

Judgment in euit quieting title, adjudging thorizing publication in suit to quiet title.

plaintiff in that suit to be owner in fee simple, In a suit to quiet title, verification of peti- finally determined that there were neither life tion by only one of several plaintiffs was sub- tenants nor remaindermen therein, and hence stantial compliance with Rev. St. 1899, § 580. ) parties claiming interest as remaindermen un

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(273 S.W.) der will of prior owner of land could not claim | ment of one thousand dollars for which note that title acquired by plaintiffs in such suit for nine hundred dollars has been given and inured to their benefit.

one hundred dollars paid in cash." The inAppeal from Circuit Court, Chariton Coun- strument was recorded in the office of re

corder of deeds of Carroll county May 30, ty; Fred Lamb, Judge.

1866. On January 5, 1867, John McFadin and Action by Minitree C. McFadin and others his wife, Frances Eveline, executed a deed against John W. Simms and others. From containing covenants of general warranty a judgment for defendants, plaintiffs appeal. wherein and whereby, for a consideration of Affirmed.

$1,000 paid to them, they purported to convey John E. Burden, of Lexington, and Gerson the same land in fee to Mary A. Simms. The B. Silverman, of Kansas City, for appellants. deed was duly recorded in the recorder's

Franken & Timmons, Lozier & Morris, and office of Carroll county June 12, 1867. Both Conkling & Withers, all of Carrollton, for the bond and deed recited that John McFadin respondents.

was “of Lafayette county, Mo."

Mary A. Simms and her husband, John, RAGLAND, P. J. This suit is a sequel to went on the land which the McFadins purSimms v. Thompson, reported in 291 Mo, at ported to convey to them in the early part page 493, 236 S. W. 876, and following. Prac- of 1868. It was then wild and uninclosed tically the same questions urged in that case “prairie and hazel brush." They built a are again presented in this. That being an house and barn on it, fenced it, put it in culappeal from an order of the circuit court tivation, established their home there. They overruling a motion to vacate one of its thereafter, during the life of Mary Simms, judgments for error of fact, we were limited continuously resided on the land, farming to a consideration of such of the questions and cultivating it. She died intestate on or as could be raised and determined under a

about November 1, 1887. After her death, writ of error coram nobis at common law. John Simms, her husband, continued in the The questions which, because of such limita- possession and control of the land until his tions, we then declined to consider we will death, which occurred May 20, 1901. endeavor to dispose of now. As to the others, In 1909 the heirs of Mary Simms, preparthere is no necessity for again ploughing the atory to offering the land for sale, caused an same ground. The statement of facts pres- abstract of the title to be made. The ab. ently to be made will be shaped accordingly, stract so made showed: The entries of the leaving the opinion in the former case to several tracts by Minitree Catron in 1838, as supply such additional details as may be de- shown by the plat book of entries on file in sired.

the recorder's office of Carroll county; the Minitree Catron, in the year 1836 and from issuance of patents corresponding to the enthat time on continuously until his death, tries and their record in the General Land which occurred on the 13th day of August, Office, as evidenced by certificates of an attor1862, was a resident of Lafayette county, ney of Washington, D. C.; the bond executMo. In the year 1838 he purchased from the ed by John McFadin to Edward Hamill; and United States, and the United States con

the deed from McFadin and wife to Mary A. veyed to him by patents, three several tracts Simms. There thus appeared two breaks in of land situated in Carroll county, Mo., which the record title--there was no conveyance together formed a contiguous body of ap- of Catron's legal title and none of Hamill's proximately 160 acres. He left a last will, possible equitable title. The Simms heirs which was duly proved, and which with the submitted the abstract to an attorney, and certificate of probate was thereafter, on the

were advised by him that a suit under the 4th day of September, 1862, duly recorded statute to determine and quiet title was nec. in the record book kept for that purpose in essary. Thereafter a petition was prepared the office of the clerk of the probate court in which the Simms heirs were designated of Lafayette county. By said will he devised as plaintiffs and Minitree Catron, “the unall of said lands to his daughter Frances known wife or widow, and the unknown Eveline McFadin "for and during her natur- heirs, the unknown descendants, the unal life, and after her death the said lands known devisees, and the unknown assigns to be equally divided among all of her child of Minitree Catron,” Edward Hamill, and dren share and share alike.” A copy of the "the unknown wife or widow and the unwill was never recorded in the recorder's known heirs, the unknown descendants, the office of Carroll county.

unknown devisees, and the unknown assigns On the 20th day of November, 1865, John of Edward Hamill,” were made defendants. McFadin, husband of Frances Eveline, ex. The petition, after alleging that plaintiffs ecuted a bond to one Edward Hamill in the were the owners in fee simple and in the penal sum of $2,000, to be void upon the con- peaceful possession of the land, proceeded as dition that he (McFadin) execute and deliver follows: to sail Hamill "a good and warrantee deed” "Plaintiffs further state that the defendants to the land heretofore referred to, "upon pay-claim some title, interest, or estate in said

premises adverse to that of plaintiffs, the na-, estopped and debarred from ever setting up ture or character of said title, interest, or estate or claiming title, interest, or estate in or to said which defendant or any of them claim can land or to any part thereof." not be more definitely stated (except as is hereinafter done) because it is unknown to plain

On the 17th day of September, 1917, a motiffs, except that it is adverse to plaintiffs. tion was filed in the cause to vacate the judg

"Plaintiffs further state: That there are per- ment; the movents being the surviving sons interested in the subject-matter of this children and the heirs of the deceased chilpetition whose names plaintiffs cannot insert dren of Frances Eveline McFadin, who died herein because they are unknown to plaintiffs; in 1916. After an extended hearing in the said unknown persons being the defendants herein designated and referred to in caption circuit court, the motion was overruled. An as unknown, to wit, the unknown wife or widow appeal taken from the order overruling the and the unknown heirs, the unknown descend- motion resulted in an affirmance by this ants, the unknown devisees, and the unknown court. Simms v. Thompson, supra. assigns of each of the following named persons, This suit was commenced February 4, 1922. respectively: Minitree Catron, Edward Hamill. That the title, interest, or estate which the movents in the motion to vacate the judg

The plaintiffs are the same persons who were said unknown persons (defendants) claim or might claim in said land or any part thereof is ment in the suit to quiet title; the defendsuch as they derived by the statutes of descent ants are the heirs of Mary A. Simms and and distribution of dower and homestead of the James L. Wilson and Henry Lee Wilson, to state of Missouri, by devise, by deed of con whom they sold and conveyed the land in veyance, or by assignment, from said persons, question in 1911. respectively, to wit, Minitree Catron (and) Ed

The petition is in five counts. · The first ward Hamill. * Plaintiffs cannot further describe the interest of said unknown persons, seeks to have the judgment in Simms v. defendants herein, nor how said interest, if any, Thompson set aside on the ground of fraud was derived, because such is unknown to plain- in its procurement. It is quite voluminous, tiffs; and plaintiffs have described herein the but the substance of it is set forth in the folright, title, interest, and estate, if any, in said lowing excerpts therefrom: land of the said unknown defendants, and how said interest, title, and estate was derived so

"Plaintiffs state that the said judgment to far as plaintiffs' knowledge extends."

quiet title is fraudulent and void, and subject to be avoided in this action, because the sep.

eral charges and allegations in the defendants' The petition was verified by John W. petition and the said oath of the defendant John Simms, one of the plaintiffs, in the following w. Simms verifying the same, and the evidence language:

adduced at the hearing, attaching to the judg“John W. Simms, having been duly sworn, ment itself, are false and fraudulent in the folstates on his own behalf and on behalf of his lowing particulars: That the allegation that the coplaintiffs herein that the allegations of the devisees of Minitree Catron were nonresidents

of the state of Missouri and unknown to the above and foregoing petition are true.”

defendants was false and made to defraud the

court into assuming jurisdiction, whereas said The petition was filed in the office of the devisees at all times resided in the state of Misclerk of the circuit court of Carroll county, souri, and were known to the defendants hereJuly 22, 1909. An order of publication based in; the allegation that the plaintiffs (defendthereon, directed to the nonresident and the ants herein) were owners in fee of the said unknown defendants, and returnable to the lands was false and by them known to be false, September term, 1909, of the court, immedi- for they owned only the right to possession ately followed. With respect to the form and of Frances Eveline McFadin, and said affidavit

and lawful use of the lands during the life substance of the order and its publication. so made and attached to said petition to verify the provisions of sections 575 and 580, R. S. the allegations thereof by John W. Simms was 1899, then in force, were substantially com- false and untrue and unto him known to be plied with. At the return term a judgment false and untrue at the time he made and was rendered in the cause. According to its subscribed it.” recitals none of the defendants appeared but

The second count alleges that if section all made default; a hearing was had; "and 650, R. S. 1899, which purports merely to upon the evidence adduced by the plaintiffs" provide a remedy for quieting title, authorthe court found generally that the plaintiffs izes the divestment of a remainder in real were the absolute owners in fee simple of the estate vested at the time of its enactment, land described in the petition, and specifically it is to that extent unconstitutional. The that “the unknown wife or widow and the third count charges that the judgment renunknown heirs, the unknown descendants, 'dered in the suit to quiet title is void because the unknown devisees, and the unknown as the petition therein was not verified in acsigns of Minitree Catron

each and cordance with the requirements of section all of them have no title, interest, or estate 580, R. S. 1899. The fourth asks that the in said land or any part thereof." The judg- title to the land in controversy be ascertained ment concluded:

and determined in accordance with the plain“And the court doth further adjudge and de- tiffs' contention. The fifth is plain ejectment. cree that the defendants and each of them be The answers of the defendants put in issue

(273 S.W.) the allegations of the petition, aver that the consin cases were decided. In recent years judgment in Simms v. Thompson is valid and there has been a disposition on the part of conclusive in respect to all matters adjudi- state Legislatures, everywhere to simplify the cated therein, and in addition plead in bar procedure, so far as possible within constiseveral of the statutes of limitation.

tutional limitations, whereby titles to real A jury was waived. The court after hear- estate can be stabilized and rendered marketing the evidence found for the defendants able through the removal of clouds and lurkon all of the issues. From the judgment ren- ing defects. The statute under review has dered in conformity with such finding, plain- been so amended that the petition, in order tiffs prosecute this appeal. Additional facts to authorize publication against an unknown will be stated in connection with the ques- defendant, may now be verified by the affidation considered.

vit of plaintiff, “or his agent or attorney." Questions raised on this appeal and not This trend of the legislative mind has been considered in Simms v. Thompson, supra, invoked merely as an aid to construction ; relate (1) to the verification of the petition there has been no recession on the part of the in that case; (2) to the operation of the courts with respect to the enforcement of judgment therein. as impairing vested rights the rule which requires that a statute which in violation of constitutional provisions; (3) provides a method of bringing a defendant to fraud in the procurement of such judg- | into court otherwise than by personal service ment; and (4) to the effect of the judgment shall be strictly construed. as an estoppel. Of these in order,

[2] In the case under consideration, John [1] I. Section 580, R. S. 1899, authorizing W. Simms, one of the plaintiffs, verified by publication against unknown parties and in his oath the allegations of the petition, inforce at the time of the commencement of cluding the allegation that the heirs, devithe suit of Simms v. Thompson, provides: sees, and assigns of Minitree Catron were

"If any plaintiff shall allege in his petition, unknown to the plaintiffs; that is, to himunder oath, that there are, or that he verily self and to each of his coplaintiffs. This was believes there are persons interested in the a substantially accurate compliance with the subject-matter of the petition, whose names he requirement that the allegations of the pecannot insert therein because they are unknown tition be made under oath. If the Legislato him, and shall describe the interest of such ture had intended that, in cases where there persons, and how derived, so far as his knowl

are more than one plaintiff, the conscience of edge extends, the court, or the judge or clerk each should be sifted through the medium of thereof in vacation, shall make an order," etc.

an oath, it would doubtlessly have said so.

The Supreme Court of Nebraska, in construThe word “plaintiff” is, as appellants con- ing a similar statute of that state, under cirtend, unquestionably used in a collective

cumstances very like those present in the sense, it includes all who by the record pros

case under consideration, held that the veri. ecute the action, and “any plaintiff” means fication of the petition by one plaintiff was the plaintiff in any case. As applied to a

sufficient. Stull v. Masilonka, 74 Neb. 309, particular case in which there are more than 104 N. W. 188; same case, 108 N. W. 166. one plaintiff, the section should therefore That such a verification is sufficient under be construed to read:. "If the plaintiffs, un

our own statute is the view which has preder oath," etc. From this premise, which we think must be conceded, appellants draw the bar of the state.

vailed generally with the trial courts and the

To now hold otherwise conclusion that the statute requires the pe: would result in unsettling many titles. A tition in such case to be verified by the oath construction that would so result ought not of each of the plaintiffs. In support of their

be adopted unless imperatively required by position they cite some early Kentucky cases,

the language of the statute, and we hold that the last of which was decided in 1838, and a

it does not Wisconsin case decided in 1862. These cases

[3] II. In challenging the constitutionality hold in effect that such a construction is

of section 650, R. S. 1899, under which the necessary to prevent fraud; that, where Simms heirs instituted the proceeding to there are several plaintiffs, all of them, ex

quiet title, appellants say: cept the one who makes the affidavit, may

“If said act is to be construed so as to auknow the persons against whom they are attempting to proceed as unknown. But it is thorize the divesting of the vested estates of the

plaintiffs as remaindermen, created by the will obvious that under our Code, if in such cir- of Minitree Catron in the year 1862, and transcumstances a fraud be intended, those of the fer the same to the grantees of the life tenant plaintiffs to whom the proposed defendant several years before the death of said life tenis known can decline to become parties plain-ant, and without any conveyance thereof by tiff, and the one to whom such defendant is such remaindermen, then said section 650 is unknown can join those who would otherwise unconstitutional as violative of section 15 of arbe plaintiffs with the unknown as defendants ticle 2. of the Constitution of the state of Mis

souri." and make the statutory affidavit without a single qualm of conscience. We have trav [4, 5] The statute authorized the circuit eled a long way since the Kentucky and Wis- court, its provisions having been complied

with, “to ascertain and determine the estate, , tends to show that any of the Simms heirs, title and interest of said parties, respectively, or their attorney who brought the suit to in such real estate, and to define and adjudge quiet title, knew of the existence of the Caby its judgment or decree the title, estate tron will, much less of the names and whereand interest of the parties severally in and to abouts of the persons named therein as devsuch real property.” And that is what the isees. The only information they had with court did in Simms v. Thompson, that and respect to the title to their lands and possinothing more. "Upon the evidence adduced ble claimants was what the abstract disby the plaintiffs” it found and adjudged that closed. That showed merely that one Miniplaintiffs in that suit were the owners of the tree Catron, back in 1838, purchased the land land "absolutely and in fee simple, and that from the government through the land office neither the defendants nor any of them had at Lexington, Mo., and received patents any title, interest or estate in and to said therefor; but who Catron was or where he land or any part thereof." The judgment at the time resided was in no way revealed. did not invest plaintiffs with a new title; it It further appeared from the abstract that merely determined what title they then had. in 1865 one John McFadin of Lafayette counIf the defendants (in that proceeding) had ty, Mo., gave Edward Hamill a bond for a appeared in response to the statutory notice deed, and that in 1867 John McFadin and his given them and offered proof of the title they wife, Frances Eveline, of Lafayette county, now claim, the finding and judgment of the executed a deed to the lands to Mary A. court might have been different. They are Simms, and this was all the information that estopped to now assert that they had or have the Simms heirs had relative to the McFatitle as remaindermen under the will of Min- dins when they set about to cure the recitree Catron, deceased. The contention that ord defects in their title. They had never the statute is unconstitutional cannot be re- known or heard of the McFadins otherwise, garded seriously. Arndt v. Griggs, 134 U. S. had had no intimation of any kind of their 316, 10 S. Ct. 557, 33 L. Ed. 918; Hamilton relation to Catron. Was it incumbent upon v. Brown, 161 U, S. 256, 16 S. Ct. 585, 40 L. them in 1909 to go to Lafayette county in Ed. 691; Tyler v. Court of Registration, search of John McFadin, who had there 175 Mass. 71, 55 N. E. 812, 51 L. R. A. 433; more than 40 years before made their mother Ashton-Jenkins Co. v. Bramel, 56 Utah, 587, a deed, in order to inquire of him the source 192 P. 375, 11 A. L. R. 752; Drake v. Frazer, of the title he purported to convey by the . 105 Neb. 162, 179 N. W. 393, 11 A. L. R. 766. deed? During all the years that the Simms But, even if it were open to question on con- had been in possession of the land no adverse stitutional grounds, the consideration of such claimant had appeared; there had been no question for all the purposes of this case suggestion from any source that their ownwould be foreclosed by the judgment in the ership was otherwise than absolute. They former suit. Forest Lumber Co. v. Mining had every reason to believe that the breaks Co. (Mo. Sup.) 222 S. W..398.

in the chain of their record title were but [6] III. A judgment will not be set aside formal defects, resulting from the loss of a upon a mere surmise or suspicion of fraud deed or deeds, or failure to record them. or for mere technical fraud, but only for ac Frances Eveline McFadin lived in Lafaytual and positive fraud in fact, established ette county continuously from the time she by clear, strong, and cogent evidence, leaving joined in the deed to Mary A. Simms until no reasonable doubt of its existence. Lieber her death; her children grew up there and v. Lieber, 239 Mo. 1, 39, 143 S. W. 458; Mc- continued to reside there; all were socially Donald v. McDaniel, 242 Mo. 172, 176, 145 S. prominent and well known locally. But an W. 452, and cases cited; Giddings v. Steele, inference unfavorable to defendants cannot 28 Tex. 732, 91 Am. Dec. 336.

be drawn from those facts. Though Carroll [7] The gist of the fraud alleged is that and Lafayette counties adjoin, owing to the the defendants, as plaintiffs in the suit to Missouri river which separates them there quiet title, well knowing that the defendants was no more communication between them therein (plaintiffs herein) were residents of than if they had lain in parts of the state reLafayette county, Mo., and well knowing mote from each other. And it is no more their rights, title, and interest in the land in strange that the Simms knew nothing of the question, for the purpose of having process McFadins than that the McFadins had never so served as to avoid giving them actual no- heard of the Simms and did not know that tice and thereby purposely keep them in ig- they occupied the land in which they (the norance of the suit and deprive them of an McFadins) now claim they were all the while opportunity to appear and make defense the owners of the remainder in fee. therein, falsely alleged under oath that the Appellants say that the probate of the Ca. names of the heirs, devisees, and assigns of tron will in Lafayette county was a proceedMinitree Catron, and the nature or character ing in rem, and that the judgment therein of the title, interest, and estate which they gave notice to the world of the existence and claimed in the land, were unknown to them. contents of the will. But the doctrine of conThe charge was wholly unproved. There is structive notice is wholly without applicanot a particle of evidence in the record which 'tion here. To support the charge of fraud in

« 이전계속 »