Henrioid v. Neusbaumer , 69 Mo. 96 ( 1878 )

Henry, J.

About the year 1853 one Henry Henrioid died in Jefferson county, seized of the tract of land in controversy, leaving a widow and five children, the plaintiffs herein. After the death of said Henry the defendant and his widow intermarried, and they and the children continued to reside on the land. In February, 1864, the mother of the plaintiffs died, and they, except the youngest, Albert, were subsequently driven from their home by the cruelty of the defendant. In 1864, on his motion, he was appointed guardian of Albert, and immediately, as such -guardian, filed a petition in the circuit coui’t of said county for a partition of the land among the heirs, alleging that it was not susceptible of division, and obtained a judgment for a sale. It was publicly sold by the sheriff in May, 1866, and the defendant became the purchaser at the price of $100, ten per cent, of which was then paid, and for the balance he executed his promissory note, which was subsequently paid by him to the sheriff-, who afterwards returned it to him. The land was then worth between $700 and $1,000.

Defendant testified that he offered to the plaintiffs, each, his share of the purchase money, and that the sheriff had previously offered it to them, but they declined to receive it. They testified that neither the defendant nor the sheriff’ ever offered them any portion of the money for which the land was sold. ' The sheriff did not testify. All but one of the plaintiffs were minors when the sale occurred, and could neither read nor write. They testified that when tliey were served with process in the partition suit they did not understand what it meant. The defendant testified that he had lived for some years on the farm, had paid taxes and reared the children, and that he went to Abner Green, Esq., an attorney, and laid the matter before him, and was by him advised to the course he pursued. Mr. Green, on the contrary, testified that defendant came to him and said that he wanted the land sold, and .inquired how it could be accomplished. The sale was advertised according to law, but several of defendant’s nearest neighbor’s were not aware that it was to be sold, or that a suit in partition had been instituted. They testified that they frequently saw defendant and conversed with him, but the sale of the property or the pendency of the suit was never mentioned by him. Several of the plaintiffs were in the habit of visiting defendant during the pendency of the partition suit, but he never mentioned the subject to them. The plaintiffs testified that they knew nothing about it, and there is no evidence, other than the sheriff’s return to the writ in the partition suit, tending to prove that either of them, except Henry Gaspard, was aware-that the land was to be sold, and the only evidence tending to show that he knew it was the testimony of Frank Smith, to the effect that about three weeks before the sale he heard John Smearman tell Henry, in De Soto, that the land was to be sold. Henry testified that this conversation occurred after the sale. The defendant testified that after he purchased the land, but at what time he did not state, he erected upon the land a barn which cost him $500, cleared five acres of land and made a few other trifling improvements. '

i. equitable eefraudulentPAKrent and cMid.

To state this case is to decide it. The defendant, after having occupied the land from the date of his marriage -until the death of the mother of plaintiffs, as soon as she died, commenced systematiCally to mistreat and abuse the children, except the youngest, and continued it until they were driven from their home. ITe continued in possession, and (the evidence warrants'the statement) procured his appointment as guardian of the child that remained with him in order to defraud his ward and its brothers and sisters out of the little estate which they inherited from their father. The purchase money paid by him was returned to him by the sheriff — why it does not appear. He holds the land; worth from $700 to $1,000, and all he in fact paid was the lawyer’s fee in the partition suit and the costs of that suit, fraudulently instituted by him. He claims to have reared the children and expended large sums of money in paying taxes and making improvements. They certainly owe him but little for their rearing, for they can neither read nor write, and if he had done his duty toward them they would have been able to read the process served upon them in the partition suit, and would not now be here alleging that defendant took advantage of their ignorance to cheat and defraud them. The partition suit was conceived in fraud, which, taints the whole proceeding.

2. ——: frauduuientin toto.

A court of equity will not go into vulgar fractions to ascertain what proportion of such a transaction may be upheld. The defendant’s conduct toward these plaintiffs, his step-children, was shameful, and a party guilty of such conduct should not be heard when he asks that he may have a fractional part of the avails of a proceeding which was entirely fraudulent.

3. _. no lach. es-

There is no such laches here as precludes plaintiffs from receiving the relief they ask. It was not shown that, without asserting their rights, they stood by and saw defendant making improvements on this land after they were aware of the fraud which had been perpetrated upon them. There is nothing in the evidence tending to show that defendant was actuated in his conduct by any honest motive; but, on the contrary, it conclusively proves that he deliberately planned a scheme to defraud his ward, aud other step-children, out of their small patrimony. The judgment of the circuit court was a most righteous one, and is affirmed.

All concur.

Arrirmed.