McConnell v. Deal , 296 Mo. 275 ( 1922 )

A rehearing was granted in this case and the cause was re-argued. We adopt the statement of the facts from the opinion of SMALL, C., in Division One of this court. It is as follows:

This is a suit to cancel plaintiff's note for $7000, and deed of trust upon forty acres of land securing same, and to recover $400 in money. The said forty acres is part of three hundred acres which plaintiff purchased from defendants, Julius H. Deal and Sarah F. Deal, his wife, on November 6, 1918. The forty acres was rejected by plaintiff because the said Deals' title thereto was defective, but, notwithstanding, the transaction was closed with the understanding, however, between the parties, in writing, that on account of the forty acres plaintiff should pay the defendant Julius H. Deal $400 in cash and deliver his promissory note for $7,000 for the balance of the purchase price, secured by a deed of trust thereon, upon condition that said defendants Deal should procure for plaintiff a merchantable title to said forty acres on or before the end of the next May term of the Circuit Court of Saline County; if said merchantable title was procured by said date the payment of the $400 and delivery of said $7000 note should be forever binding; but that in case said title could not be made merchantable by the end of said May term of the court, said $400 in cash and said note for $7000 should be returned to plaintiff, and said forty acres relinquished by plaintiff to said Deal. The defect in the title to said forty acres was this: August 4, 1915, defendant Rebecca E. Botts, being owner in fee, conveyed same to defendant Sarah Florence Deal and "the heirs of her body," reserving a life estate in herself, said Rebecca E. Botts. At the time the sale was made said Sarah Florence Deal had four living children.

According to the agreement, the defendants Deal and Rebecca E. Botts brought suit in the Circuit Court of Saline County against the four children of Mrs. Deal, as the living heirs of her body, and also as a class representing such heirs of her body as may thereafter come into existence. The petition in effect recited the sale of said property to McConnell and asked that it be consummated through the appointment of a trustee to make the sale and hold the proceeds for the plaintiffs, Rebecca Botts and Sarah Florence Deal, and the heirs of her body in the same manner as they had title to and in lieu of the land itself. The petition in said suit was as follows, omitting caption:

"Now, at this day come the plaintiffs, and state to the court that on the 4th day of August, 1915, the plaintiff Rebecca E. Botts, was the owner in fee simple of the following described real estate situate in Saline County, Missouri, to-wit: The south half of Lot One of the southwest quarter of Section 30, Township 50, Range 22; that on said date, so being such owner, she made, executed and delivered her warranty deed of said date, by which she conveyed said land to the plaintiff, Sarah Florence Deal and the heirs of her body, reserving to herself, the said Rebecca E. Botts, however, the use and possession of said land during her natural life, and that by reason of the premises the said Sarah Florence Deal and the heirs of her body are now the owners of said land, subject to the life estate therein of the said Rebecca E. Botts; that the defendants Aubrey Deal, Oney Deal, Morris Deal and Raymond Deal are the sole and only children of the said Sarah Florence Deal, now living or have ever been born to her, and are the ostensible persons who now, and will, upon the death of said Sarah Florence Deal, if they survive her, be the heirs of her body; that they are sued herein in their own rights, and as representatives of all that class of persons who may, upon the death of the said Sarah Florence Deal, be or become the heirs of her body.

"Plaintiffs state that the above described tract of land is located and adjoins a tract of about 260 acres of land formerly owned by plaintiff, Julius H. Deal, and has for many years been handled and used in connection with the land so formerly owned of the said Julius Deal, and is a part of the farm formed by the said land of the said Julius H. Deal.

"That said tract of land so used in connection with and as a part of the said Julius H. Deal farm, is productive of a good income and is valuable, and about the 6th day of November, 1918, the said Julius H. Deal entered into a contract for the sale of said farm, including the forty acres of land hereinbefore described, to one C.T. McConnell, and has sold and conveyed all of his said land for a valuable consideration, but that the purchaser thereof refused, and still refuses, to accept the conveyance of the forty acres herein described by reason of the condition of the title thereof. Plaintiffs state that the forty acres of land herein described will, unless the same be sold and conveyed to said purchaser become an isolated tract, not connected with any public road, and cannot be rented for a fair monthly value, on accounty of its inaccessibility, as the same will become wholly inclosed, surrounded and cut off by lands of other parties, and will be much depreciated in value, and no longer productive of income.

"The petitioners represent to the court that it is to the interest of all parties concerned that a trustee herein be appointed for the trust estate above, and that said forty acres of land be sold by said trustee, and held and loaned by him, or by him be re-invested under the order of this court, and that the interest thereon, after the payment of the expenses of administering the trust, be paid to said Rebecca E. Botts as long as she may live, and upon her death that said proceeds go to the heirs of her body, the said Sarah Florence Deal.

"That said proceeds be held upon the exact terms as provided by the terms of said deed, for the holding of said land, and that the purchaser from the said trustee shall take and receive a fee simple title to said land free and discharged from said trust and for all other and further relief.

"Wherefore, plaintiffs pray the court that a decree be made herein ordering and directing that the above described real estate be sold at private sale to the best advantage, and that Julius H. Deal be appointed trustee by this court for the making of said sale and executing a deed to the purchaser conveying the fee simple title to the above described tract, to-wit: The south half of Lot One aforesaid, and that he receive the purchase money derived from said sale, and that he hold and loan the same upon the exact same trust, as provided by the terms of said deed, for the holding of said land, and loan thereof be secured upon real estate by first lien or deed of trust, of sufficient value to amply secure the repayment of the same, and that all notes and securities be taken and held in the name of said Julius H. Deal as trustee, and that after the payment of taxes and necessary expenses of administering the trust estate, the said Julius H. Deal shall annually pay to the said Rebecca Botts, so long as she may live, the interest on said purchase money for said tract of land, and from and after the death of said Rebecca Botts, shall pay the interest thereon to the said Sarah Florence so long as she, the said Sarah Florence Deal, may live, if she survive the said Rebecca Botts, and upon the death of the said Rebecca Botts, and the said Sarah Florence Deal, shall distribute and pay over to the heirs of the body of the said Sarah Florence Deal the full sum of the purchase money received upon the sale of said lands.

"That said Julius H. Deal be required to report to this court, for its approval, any sale made by him, and further from time to time his proceedings hereunder; and must first give bond to be approved by the court in such sum as the court may deem sufficient in the premises, conditioned for the faithful performance of his duty as trustee herein, and plaintiffs further pray for any and all other relief to which they may be entitled."

The defendants were personally served, but made default. The findings and judgment followed the allegations and prayer of the petition. The court found that the defendants are the only children of Mrs. Deal, now living or who have been born, and will be the heirs of her body if they survive her, and are the representatives of all that class of persons who may, upon the death of Mrs. Deal, be or become the heirs of her body. The court also found that said forty-acre tract will become an isolated tract, etc., as averred in the petition; that such condition creates the necessity for the interposition of the equity side of this court, and that a trust herein is created. The court appointed Deal trustee, ordered that he sell said land at private sale to C.T. McConnell for the sum of $7400 and execute deed, etc. There was no evidence, so far as disclosed, or finding that $7400 was the reasonable value of the land.

I. The particular necessity relied on for the overturning of this solemn act of settlement is that the forty-acre tract will become isolated, etc. This situation could be remedied by the establishment of a private road, a private way of necessity, connecting the forty with a public highway, asNecessity: authorized by Section 20 of Article II of ourIsolation. Constitution, and Section 10638, Revised Statutes 1919. Hence the conclusion of necessity is a nonsequitur. The petition on its face demonstrates a situation fatal to the appeal for the intervention of equity. There was no necessity. The claim is devoid of substance or merit.

II. In Heady v. Crouse, 203 Mo. 100, the land had been devised to Mrs. Shelton and the heirs of her body. She afterwards married Heady, and in 1871 she and her husband brought an action against her six children, five of whom were minors, forContingent the sale of the land for re-investment. JudgmentRemainder: was rendered as prayed, and the hand sold. ThePower of Court judgment and sale were held void on collateralof Equity: Sale attack in an opinion by VALLIANT, J., concurredby Trustee. in by all the judges in Court in Banc. On page 110, we quote:

"From this it appears there was no necessity suggested for the sale of the land, no apprehension of imminent destruction of title or loss of the property, not even a necessity for its sale for the support and maintenance of the children, but the decree rests solely on the foundation that it would conduce to the interest of the defendants to sell this land and invest the proceeds in other land — a mere business speculation. If the decree can be upheld it must be so on the ground that at that time the circuit court by virtue of its general equity jurisdiction had authority to appoint a commissioner and clothe him with power to enter into such a business speculation with the infants' real estate in the hope and for the sole purpose of bettering the infants' financial condition. There are some authorities in this country that hold that a court of equity may do that, but the weight of authority is to the contrary and we think reason and judicial prudence are against the recognition of such a power."

And on page 115:

"We find nothing in our decisions to sustain the position of defendants on this question.

"There is nothing in the character of this subject that especially distinguishes it as a creature of equity. That which we technically call equity, in contrast with what we technically call law, was of natural origin and growth in our jurisprudence, springing up to meet the imperative demands of justice at places where the law was inadequate to the occasion. ``Equity follows the law,' it does not override or subvert the law; it comes to the aid of the law when the law, on account of its rigid cast, is unable to adjust itself to the demands of justice. Equity sits silent in the courts as long as the law is able to meet the demands of justice; it is silent to the call of a mere right, its voice is heard only when a cause, not contrary to law, well founded in right and justice, would suffer without its aid. It is cold to a mere legal demand, but warm to the prayer of helpless justice. It aids the law, but is not officious in its services; it does not take hold of a case merely because it has peculiar power.

"Now what was there in the nature of the case in which the Circuit Court of Lincoln County in 1871 undertook to exercise its power as a court of equity that especially appealed to equity for aid? What cry of suffering justice was heard by the chancellor? The case laid before the court by the plaintiffs in that case, stripped of superfluities, was simply this: We, the plaintiffs, think we can make money for these minors (as well as ourselves) by selling their contingent interest in this land and investing the proceeds in other lands, and we ask the aid of a court of equity to enable us to enter into that speculation. It is said in the able brief of the learned counsel for defendants that equity has always exercised jurisdiction over the estates of minors. That is so, and nothing we are now saying will deny to courts of equity their original jurisdiction in the case of minors and the protection of their property interest. But equity distinguishes between the shield and the sword; to protect the estate from a danger which the infant, because of his tender years, is unable to defend against, is one thing, to commission some one to go into the field of trade selling and buying on account of the infant is another thing. Courts of equity have original jurisdiction over the estates of minors, but conceding that jurisdiction for certain equitable purposes does not concede jurisdiction to do any and every thing whatsoever with the estate of a minor, quia a minor — the act to be valid must be based on some equitable principle."

And again on page 119:

"Under the Shelton will the land was devised to the widow for life with remainder to the ``heirs of her body' — not the ``issue of her body' — as in Tindall v. Tindall, 167 Mo. 218. The widow and her second husband as plaintiffs brought the suit against their children then living; of course she had no heirs at that time because she was living, her children had then only contingent interests depending on their outliving their mother; two of them never became her heirs because they died before she did, and their children who did become heirs of her body were not born until years after the decree was rendered. These latter were not bound by the decree even if the others had been because they derived their title, not by inheritance, from their mother in whom no title ever vested, but directly from the will as being heirs of the body of their grandmother."

III. "That there should be power to grant the relief specified in the judgment is as essential as that there should be power to entertain the action and dispose ofWhat Judgments the issues of law and fact therein." 1 FreemanMay be Rendered. on Judgments (4 Ed.) sec. 118 (p. 180) and 120c.

In Gray v. Clement, 286 Mo. 100, l.c. 109, 227 S.W. 111, 113, Division Two of this court said:

"Where the record of a judgment shows on its face that the court did not have authority to grant the particular relief which it did grant, the judgment is void and subject to collateral attack. There must be jurisdiction of the matter acted upon; the court must have the power ``to render the particular judgment in the particular case' before it can be said to have jurisdiction. [Charles v. White, 214 Mo. l.c. 208, 112 S.W. 545, 21 L.R.A. (N.S.) 481, 127 Am. St. 674; Kansas City v. Mullins, 200 Mo. App. 639, 209 S.W. 558; Norton v. Reed, 253 Mo. 236, l.c. 252, 161 S.W. 842.] The petition in the partition suit under consideration, and the judgment itself, recites that Josephine Brokel has a life estate in the premises, and the defendants have the remainder. It does not matter whether the remainder were vested or contingent. The judgment shows on its face that the relief granted was such as the court could not render in that class of cases. Therefore it is void and subject to collateral attack."

On a second appeal, decided at this term, this conclusion was reaffirmed. See Fithian v. Monks, 43 Mo. 502.

In Waldron v. Harvey, 54 W. Va. 608, 613, it was said:

"``A decree is a conclusion of law from pleading and proofs, and where there is a failure of either pleading or proofs there can be no decree.' [Kenneweg v. Schilansky, 47 W. Va. 278; Vance Shoe Co. v. Haught, 41 Id. 275.] A decree, or any matter of a decree, which has no matter in the pleading to rest upon, is void, because pleadings are the very foundation of judgments and decrees. ``Matters not charged in a bill or in the answer, and not in issue in the cause, are not proper to be considered on the hearing.' [Hunter v. Hunter, 10 W. Va. 321.] There must not only be jurisdiction as to the person affected by the decree by having him before the court by process or appearance, but there must be jurisdiction of the matter acted upon by having it also before the court in the pleadings. Multitudinous cases attest this elementary axiom of jurisdiction. If either is wanting, the decree or judgment is void, not merely voidable or erroneous." [Citing cases.]

In Sache v. Wallace, 101 Minn. 169, 175, it is said:

"It is laid down in 1 Black. Judg. 242, as a general principle, that, in addition to jurisdiction of the parties and subject-matter of the action, it is necessary to the validity of a judgment that the court should have had jurisdiction of the precise question which the judgment assumes to decide, or the particular remedy or relief which it assumes to grant. Support for this doctrine is found in numerous well-considered cases."

23 Cyc. 684 (4) adopts the foregoing statement of the rule.

In Gavin v. Curtin, 171 Ill. 640, relied on as authority by respondents, the court, at pages 646, 648, said:

"``. . . The circumstances are such the life estate and the remainder in fee will be destroyed and lost to all who are or who may be interested therein unless jurisdiction to provide a remedy and power to avert such destruction are vested in some judicial tribunal. It is beyond discussion that courts of law are powerless to render relief. It remains to be determined whether a court of equity may assert and exercise the necessary jurisdiction and power. If not, it would seem we have an instance of the existence of a legal right which cannot be protected and maintained because of lack of an appropriate tribunal having adequate judicial power to render the necessary relief. We think our institutions are not subject to this reproach, but that our court in equity had full jurisdiction and power to meet the emergency.' . . .

"It is true, the exercise of that power can only be justified by some exigency which makes the action of the court, in a sense, indispensible to the preservation of the interests of the parties in the subject-matter of the trust, or, possibly, in case of some other necessity of the most urgent character."

It is obvious from a reading of the petition in Botts v. Deal that no condition existed demanding or authorizing the interference of a court of equity, and that the petition shows on its face that the court had no jurisdiction in the premises to grant the relief prayed. A private road connecting with a public highway would meet the exigency. Stripped of all pretenses, the case is as stated by VALLIANT, J., in the citations from Heady v. Crouse, supra: "We, the plaintiffs, think we can make money for these minors (as well as ourselves) by selling their contingent interest in this land and investing the proceeds in other lands and we ask the aid of a court of equity to enable us to enter into that speculation; . . . to protect the estate from a danger which the infant, because of his tender years is unable to defend against, is one thing; to commission some one to go into the field of trade, selling and buying on account of the infant, is another thing."

The authority of the Heady Case has never been questioned. To affirm the judgment in this case would be to overrule the Heady Case and to overturn a solemn settlement of an estate without any substantial reason therefor. If that may be done on the ground pleaded, then solemn property settlements are trifles light as air. The principle is analogous to that stated in Cohron v. Polk,252 Mo. 261, 281; "In general, the cancellation of an executed contract is an exertion of the most extraordinary power of a court of equity, which ought not to be exercised except in a clear case, and never for an alleged fraud unless the fraud be made clearly to appear." [Bragg v. Packing Co., 205 Mo. App. 600, 604.]

In addition to what has been said, the court did a thing unheard of. Instead of ordering the land sold to the best advantage as prayed in the petition, the court ordered that it be conveyed to McConnell for $7400, without sale or without having heard evidence as to its value. There was no pretense of a sale. This clearly was not within the purview of the petition, nor within the power of the court. It is the taking of private property without due process of law. For the reasons stated, I think the petition stated no case of equitable cognizance and the judgment is a nullity.

IV. The only conflict between Jackson v. Miller, 288 Mo. 232,232 S.W. 104, cited by respondents, which was an action to set aside a deed for mutual mistake, and Heady v. Crouse, supra, is in Paragraph II of the latter case, 203 Mo. l.c. 119. The defendants in this case may or may not surviveSuit Against their mother. Queen Anne of England survived all ofA Class. her seventeen children. In Mathews v. O'Donnell, 233 S.W. 451, 456, only one out of seven children survived the life tenant. In case the defendants in Botts v. Deal should predecease their mother, it seems a far-fetched doctrine that they represented those who would take the remainder. There would be no privity. The remaindermen would take as purchasers and not as heirs of the defendants, as stated by Judge VALLIANT. The rule announced in Jackson v. Miller may be a convenient rule of practice in a case of necessity, but manifestly there is no exigency in this case requiring resort to a fiction of that character. Moreover, it is obvious that the defendants in Botts v. Deal are in collusion with the plaintiffs. If they should predecease their mother and leave issue, or if other children should be born to Mrs. Deal, these should not be cut off from their rightful inheritance, but should be permitted to repudiate the unauthorized action of their alleged representatives, as in Heady v. Crouse. The law permits settlements of property by conveyances of the character in question. It ill becomes a court of justice to aid parties in subverting them by collusive actions. [Fountain v. Starbuck, 209 S.W. 900.]

V. On the face of the record in Botts v. Deal, there was no trust. It was an ordinary warranty deed. There were no averments of fraud, accident or mistake, nor of anything that by the utmost stretch of the imagination would authorize aConverting Legal court of equity to declare a trust. There wasInto Trust Estate. no intention to create a trust. A trust may be created by writing. [Sec. 2263, R.S. 1919.] A court of equity may declare, construe and administer trusts, but it cannot create one. The grantor in the deed under consideration might have declared a trust, but certainly she did not. There is nothing in the facts of this case to authorize a court to do so. Ex nihilonihil fit. [Knapp v. Publishers, 127 Mo. 53, 77; Hunter v. Briggs, 254 Mo. l.c. 62.]

VI. At the time the judgment in Botts v. Deal was rendered, and the deed was tendered to McConnell, Heady v. Crouse was the law of Missouri. Tested by our ruling in that case the deed tendered to McConnell was a nullity; it conveyed no title.Merchantable By the terms of the contract he was entitled to aTitle. merchantable title. Speaking of this character of title, MACFARLANE, J., in Green v. Ditsch, 143 Mo. l.c. 12, quoted from Waterman on Spec. Perf., sec. 412:

"He should have a title which would enable him, not only to hold his land, but to hold it in peace, and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value." [See also Kling v. Realty Co.,166 Mo. App. 190, 195.]

The law, as declared in Heady v. Crouse, was as much part and parcel of the contract between McConnell and Deal as if it had been written into it. Tested by that rule the title offered to McConnell was not a merchantable title.

It follows that the judgment must be reversed and the cause remanded with directions to enter judgment for the plaintiff as prayed in his petition. Woodson, C.J., Walker and David E.Blair, JJ., concur; James T. Blair concurs in paragraph 6 and in result; Elder, J., dissents; Graves, J., dissents and files opinion of SMALL, C., as his opinion.