Simms v. Thompson , 291 Mo. 493 ( 1922 )

ON MOTION FOR REHEARING. I. Appellants suggest that we have inconsistently quoted from the bill of exceptions after holding that, in the absence of a motion for new trial, it could not be considered. We said, in substance, that although appellants had lived in an adjoining county all these years, that is, from 1867, yet theyBill of had never visited the lands. This, we think, is aExceptions. fair deduction from respondents' answer to appellants' motion. The court found that the averments therein were true and this was not questioned at the argument. This fact had no influence in the determination of the case. Our statement also that the McFadins had perpetrated a gross fraud on their children or on their grantee, Mary Simms, in conveying the land to Mrs. Simms, is also criticised as being based on the evidence. The record shows that Mrs. McFadin and her husband conveyed the land to Mrs. Simms in 1867, by warranty deed. Appellants charge that the respondents had constructive notice of their title when they commenced the action to determine title in 1909, and that they fraudulently imposed on the court in procuring the judgment. It still seems to us that if there were any fraud in the case it was the act of the life tenant in executing a warranty deed conveying a fee simple title to an innocent purchaser who, it is said, paid full value. It would have been a fraud on Mrs. Simms if she got less than a fee. If Mrs. McFadin had simply conveyed her life estate no one could have been harmed. We think the statement complained of is self-evidently true, although it also had no influence in the determination of the case.

I. We readily concede that appellants, as remaindermen, under their grandfather's will, could not assert a claim in court to the possession of the land until the death of their mother, the life tenant, in 1916, and the fact that they did not visit the land or assert their interest during their mother's lifetime would not estop them to claim title after theirJurisdiction. mother's death. But they failed to record a copy of the will in the office of the recorder of Carroll County as required by Section 536, Revised Statutes 1919. They could have protected their interest as remaindermen by an action, during the life of their mother, to determine title. They had constructive notice of the action to determine title and failed to assert their rights or to file a petition to set aside the judgment within three years after its rendition.

In this connection, appellants renew their main contention that the Carroll County Circuit Court had no jurisdiction because they were residents of this State. As shown by the cases cited in the opinion, the averments of the verified petition, in conformity with the statute, now Section 1202, Revised Statutes 1919, conferred jurisdiction. The allegation that the unknown defendants were non-residents was as immaterial as if it had been averred that they professed the doctrine of foreordination and predestination. In so disregarding the averment, the court did not amend the petition or take advantage of appellants' special appearance solely for the purpose of their motion to vacate the judgment.

III. Appellants, in their motion for rehearing, say: "Does not Judge GRAVES of this court in State ex rel. v. Riley, 219 Mo. 682, 683, say: `The motion (coram nobis) will lieDuress: Fraud where a valid defense exists in the facts of theand Excusable case, but which, without negligence on the part ofMistake. the defendant, was not made,' etc.? Would not the will have been a valid defense to the quiet-title suit?"

This is what Judge GRAVES said:

"In 5 Ency. Plead. and Prac., 26-27, the office of the writ is thus described and defined: `The office of the writ of coramnobis is to bring the attention of the court to, and obtain relief from, errors of fact, such as the death of either party pending the suit and before judgment therein; or infancy where the party was not properly represented by guardian; or coverture, where the common law disability still exists; or insanity, it seems, at the time of the trial; or a valid defense existing in the facts of the case, but which, without negligence on the part of defendant, was not made, either through duress or fraud or excusable mistake; these facts not appearing on the face of the record, and being such as, if known in season, would have prevented the rendition and entry of the judgment questioned.'"

It is not averred in appellants' motion that the defense based on the will of Minitree Catron was not made through duress, fraud or excusable mistake. It was simply an ordinary judgment by default on notice by publication. It is alleged, in substance, that plaintiffs had constructive notice of appellants' title at the time the suit was brought, and by exercise of due diligence in making inquiries could have ascertained the names and places of residence of appellants and the extent and nature of their estate in the lands; that plaintiffs brought the suit fraudulently against the devisees of said Catron as non-resident parties, and appellants had no notice thereof until just before the filing of their motion; that the court erroneously rendered judgment against appellants therein and rendered it without jurisdiction, which it would not have done had it known of the existence of such facts.

It is unnecessary for us to rule that in a case where a defendant is prevented from presenting a valid defense existing in the facts of a case, by duress, fraud or excusable mistake, relief will be granted on error coram nobis. That question is not before us. We held in Jeude v. Sims, supra, that fraud in the procurement of a judgment cannot be relieved against in this sort of a proceeding. On a motion of this character, only such errors can be assigned as are consistent with the record before the court, and the court will not look into the cause of action on which the judgment was rendered, or consider any facts which might have been presented to the court on the trial of the cause. Our statute (Secs. 1532 and 1533, R.S. 1919) provides that a judgment in a case wherein the court acquired jurisdiction by constructive service may be reviewed if the defendant shall within three years appear and by petition for review show good cause for setting aside such judgment. [Tooker v. Leake,146 Mo. 419, 430.]

IV. This court has frequently held that a judgment rendered on constructive service is as conclusive as though there had been personal service, save the right that the defendant has to appear within three years and have it set aside on aConstructive showing of good cause. [Tooker v. Leake, supra.]Service: That is the limit to the period of grace allowed byJudgment. the statute. If appellants' contention be conceded, a judgment determining title on constructive service is a futile thing, since the Statute of Limitations does not apply to error coram nobis. [State ex rel. v. Riley, supra.]

V. Another contention is that Fannie McFadin and Walter McFadin, children of the life tenant, were dead before the institution of this suit to quiet title and the appellants were not sued in the capacity of heirs of these two deceasedHeirs of remaindermen. The action was against the unknownDeceased heirs, descendants, devisees and assigns ofRemaindermen: Minitree Catron. The petition contained all theSufficient essential allegations in an action to determineAllegations. title against unknown persons. It alleged that "plaintiffs cannot further describe the interest of said unknown persons, defendants herein, nor how said interest, if any, is derived, because such is unknown to plaintiffs, and plaintiffs have described herein the right, title, interest and estate, if any, in said land of the said unknown defendants and how said interest, title and estate were derived, so far as plaintiffs' knowledge extends." Obviously, plaintiffs could not allege in their petition that the appellants had derived interests from these deceased remaindermen when their very existence was unknown to them. Such a theory would emasculate the statute.

VI. Appellants say we have overlooked the decisions in Nichols v. Hobbs, 197 S.W. 258, and Wolf v. Brown, 142 Mo. 612. In the Nichols Case the land lay in the county in which the will was probated. The case has no application. In the Wolf Case,Other judgment was rendered against Stafford on publicationCases. twenty-seven years after his death, and the land was sold on the void judgment. Stafford, who lived and died in Iowa, had devised the land to the plaintiffs who had failed to record the will in St. Louis, where the land lay. It was held that the judgment and tax deed were void, and that the failure to record the will did not affect the defendants' rights, because they did not claim title through the devisees, but under a void judgment. If the suit for delinquent taxes had been against Stafford and his unknown heirs and devisees, a different question would have been presented.

VII. They also contend that when John W. Simms made the false affidavit to quiet the title no effort was made to learn the whereabouts of the appellants; that the record of the will in Lafayette County was notice of itsFraud. recitals and of the devise and of the devisees. They say "the affidavit was a lie, and can it be said that right can be supported on a lie?" If these contentions were meritorious, the judgment was procured by fraud, and appellants might have maintained an action in equity to set it aside, but relief on the ground of fraud is not available on error coramnobis.

VIII. They further suggest that the appeal was taken from the order overruling their motion to set aside the judgmentAppeal and not from a judgment, and there was no judgment tofrom affirm. It was at least an order from which an appealOrder. would lie.

IX. It is also said that respondents never had any title and that they cannot recover on a chain of title beginning nowhere; that Minitree Catron was the common source of title and appellants have the better claim. This again goes to the merits of the action and is concluded by the judgment.Finality of Again, it is said that three of the appellants areJudgment: and were married women against whom the Statute ofMarried Limitations would not run. This is a question notWomen. involved in the case. It may be conceded that appellants have been guilty of no laches or negligence and have done no act whereby they should lose their property, still the fact remains that if we accord full faith and credit to the solemn judgment of a court having jurisdiction in the premises, they are concluded by that judgment.

The motion for rehearing is overruled, and the order of the trial court overruling the motion to set aside the judgment is affirmed. Graves, Walker, Elder and David E. Blair, JJ., concur; James T. Blair, C.J., concurs in result; Woodson, J., not sitting.