text:
    GEORGE O. ABINGTON v. LOUIS TOWNSEND et al., Appellants.
    Division Two,
    July 16, 1917.
    1. PRIVIES: Annuled Judgment: Evidence. No one is a privy to a judgment whose succession to the rights of property thereby affected occurred previously to the suit in which the judgment was rendered. A grantee cannot be bound by a judgment in an action commenced against his grantor subsequent to the grant.
    2. -: -: -: Purchaser at Partition Sale Set Aside. Where an interlocutory judgment in partition was rendered and the land sold, the sale approved and a deed made to defendant, and thereafter one of the coparceners filed suit to set aside the judgment and its approval and the deed on the ground of fraud, without malting defendant a party, the subsequent judgment which resulted in setting aside the prior sale, the order approving the same and the deed, but not setting aside the interlocutory decree in partition, is not competent- evidence in a suit to quiet title brought by the purchaser at the sale under a renewed decree and order of sale, offered by him for the purpose of showing that the sale and judgment approving the same under which defendant claims were set aside.

      3. BULE OF PROPERTY: Decision of Court: Judgment in Partition Set Aside for Fraud. A decision of the Supreme Court setting aside a judgment in partition and an order approving a sale thereunder, on account of facts dehors the record showing fraud in the sale and order approving it, did not establish a rule of property in such a way as to relieve a purchaser at a second sale under a renewed order made after.the decision, from examining the record to find out whether the purchaser at the first sale had acquired title before the rule in the fraud case was announced. The rule of stare decisis protects only those who obtain title in reliance upon the decision announced.
    4. PARTITION: Title of Purchaser: Impairment. The title acquired by a purchaser at a sale under a judgment in partition regular on its face and an order approving the sale and a deed, cannot bo impaired by a subsequent modification or annulment of that judgment in a suit to which he is not a party.-
    5. -: -: -: Fraud in Procurement. A decision which held that evidence dehors the record established falsity in the record and fraud in the sale under the decree in partition and in the order approving the same, will not be held, in a subsequent suit to quiet title between the purchaser under the first sale and the purchaser under a renewed order, to establish that the first order approving the sale and the deed thereunder were void; but in order to be available as a ground for a holding that the purchaser by his deed at the first sale did not obtain the title because of the fraud in the order, the evidence to establish such fraud must be produced.
    6. FEAUDULENT JUDGMENT: Attack by Stranger.. A judgment cannot be impeached for fraud in a collateral proceeding by a stranger whose rights in the property affected accrued to him after its rendition. Where plaintiff purchased property at a sale under a renewed order in a partition proceeding to which he was not a party, he cannot show that a prior order of sale and- an order approving the sale, at which defendant purchased, were obtained by fraud on the court.
    7. -: Sale to Non-Existent Corporation: Eelation. Where the sale was made to the corporation on the 12th, its corporate articles were filed on that day, the certificate of association was issued by the Secretary of State on the 14th, the report of the sale was approved on the 22nd and the deed made on the same day, the conveyance was not made to a non-existent corporation, for the right of the company related back to the day the contract was made.
    8. PUECHASEE AT PARTITION SALE: Estoppel. An attempt to purchase an adverse claim in order to avoid future trouble will not estop the party to assert a title previously acquired. Neither does competitive bidding at a partition sale for such purpose, operate to estop a purchaser at a prior sale from asserting his title acquired at such .previous sale.

      Appeal from Butler Circuit Court. — Eon. J. P. Foard, Judge.
    Reversed.

      Ernest A. Green, Leslie G. Green and Sheppard & Sheppard for appellants.
    We deem it unnecessary to point out any specific erroneous rulings of the court as to evidence, as this case is one in equity; and for the further reason that the case will turn upon certain questions of law which, when decided, will also decide the competency and relevancy of certain documentary evidence. But we do not desire to he understood as waiving any point as to the introduction of evidence. (1) The respondents offered in evidence the interlocutory decree rendered on February 8, 1911, in the partition case. This evidence was incompetent for any purpose, for the reason that that decree could in no .wise affect appellants, because Townsend acquired the land in suit by a deed dated August 3, 1905, more than five years before the decree was entered, and he was not a party or privy to said suit. 23 Cyc. 1280; Koontz v. Kaufman, 31 Mo. App. 409; Henry v. Woods,. 77 Mo. 281. The same applies to the introduction of the last interlocutory decree and the final decree and deed in said partition suit. ' (2) Townsend acquired a good title to the land in suit under the commissioner’s deed of October 22, 1903, by reason of the fact that the proceedings were regular. An interlocutory decree of partition was duly rendered, a sale ordered, a sale had, a report of sale made to the court out of which the. order for sale issued, and the report of the sale was in all things confirmed and approved by said court. The order of the court approving the sale and ordering deeds made, was a final judgment in said case, from which an appeal could have been, but never was, taken; and when once rendered imported absolute verity, and was beyond impeachment except for fraud or want of jurisdiction. Clark v. Sires, 193 Mo. 516. A purchaser is required to look only at the judgment, execution, levy and sheriff’s deed. Lenox v. Clark, 52 Mo. 115; Childers v. Schantz, 120 Mo. 313. If the execution plaintiff purchases at the execution sale, and the case is afterwards appealed and reversed, his title is gone; hut one who purchases from him before the reversal, gets a good title. Yogler v. Montgomery, 54 Mo. 577; Shields v. Powers, 29 Mo. 315; Colburn v. Yantis, 176 Mo. 682; Brown v. Curtiss, 155 Mo. App. 376; Grott v. Powell, 41 Mo. 417; Jones v. Harb, 60 Mo. 362; Smith v. Perkins, 124 Mo. 50. (3) The existence of the corporation or its right to acquire or to convey land cannot be inquired into in a collateral proceeding like this one, but only in a proceeding by the State of Missouri. Pinch v. Ullman, 105 Mo. 263; Broadwell v. Merritt, 87 Mo. 101. No title passes in a partition sale until the sale is confirmed by the court. In this instance, the confirmation of the sale took place on October 22nd, — the sale having occurred on October 12th, — eight days after the corporation had been born. Hector v. Mann, 225 Mo. 243; Clark v. Sires, 193 Mo. 515; Thomas v. Elliott, 215 Mo. 602; Burden v. Taylor, 124 Mo. 18; Grithens v. Barnhill,-184 S. W. 145; 24 Cyc. 33. (4) The fact that this partition sale, occurring October 12, 1903, was set aside several years afterwards in a suit to which Townsend was not a party, did not divest the title out of him, as judgments bind only parties and privies. Koontz v. Kaufman, 31 Mo. App. 409; Henry v. Woods, 77 Mo. -281; Strottman v. Railroad, 228 Mo. 182. (5) The plea of res adjudicata in the replication of respondents cannot be maintained for the reason that Townsend was neither a party nor a.privy to the suit. He acquired title prior to the institution of these suits, and was not made a party thereto. Koontz v. Kaufman, 31 Mo. App. 409; Henry v. Woods, 77 Mo. 281; 23 Cyc. 1253. (6) The first sale, under which Townsend claims, occurring on October 12, 1903, confirmation of which was made October 22, 1903, was not void as to the purchaser. No sale is void, except between the parties, where the court has jurisdiction of the subject-matter and the parties. Jones v. Talbot, 9 Mo. 121; Fithian v. Monks, 43 Mo. 502; Harvey v. Tyler, 2 Wall, 328; Coleman v. McAnulty, 16 Mo. 173; Chouteau v. Nuckolls, 20 Mo. 445; Shields v. Powers, 29 Mo. 315; Hendrickson v. Railroad, 34 Mo. 188; Castleman v. Relfe, 50 Mo. 583; Mcllwrath v. Hollander, 73 Mo. 105.

      David W. Hill and Abington & Phillips for respondent.
    (1) The deed was absolutely void (not voidable) and has been so declared by this court, and, hence, the Real Estate & Investment Company acquired absolutely no title to said land. Davidson v. Real Estate & Inv. Co., 226 Mo. 1, 249 Mo. 474. (2) In the answer of the I. M. Davidson Real Estate & Investment Company, filed in the case reported in 249 Mo. 474, the company contended in the circuit court that it had sold the lands in suit to Townsend, and asked the circuit court to ratify that sale and offered to pay into court the money received from the sale of the land to Townsend, and that such sum be partitioned among the parties litigant in proportion to their rights. This the court declined to do, but, to the contrary thereof, ordered the land re-sold and decreed that the money that Townsend and others paid to the Real Estate & Investment Company for lands sold was not the subject of partition. The order to resell the land by the instruction of this court was, in effect, another holding that the sale conducted by Hogg on October 12, 1903, was absolutely and utterly void. Davidson v. Real Estate & Inv. Co., 249 Mo. 474. (3) As stated in the last appeal of the Davidson case, it was urged in the • pleadings, proof and argument on behalf of the Real Estate & Investment Company that the land sold to Townsend should be excluded from the second sale, because it had been sold to him before the suit (226 Mo. 1) to set aside the sale had been commenced, but notwithstanding this condition this court (in 249 Mo. 474) ordered the land resold, and this plaintiff, as well as the forty-seven other purchasers at that sale, had a right to rely, and did rely, upon this decision of this court as a rule of property. Lumber Co. v. Craig, 248 Mo. 331; Imp. Co. v. Schneider, 177 S. "W. 388. (4) Defendant attempts to defend this ease upon the theory that he was a bona-fide purchaser of the land without notice, but the doctrine of bona-fide purchaser without notice does not and cannot apply where there is a total absence of title in the vendor. Tie & Timber Co. v. Eailroad, 184 Mo. App. 26; Bird v. Jones, 37 Ark. 195; Compton v. Casada, 54 Ga. 74; John v. Hatfield, 84 Ind. 75; Bank v. Gibson, 60 Neb. 767; Boone v. Chiles, 10 Pet. 177; Arrison v. Harmstead, 2 Pa. St. 191; Schultz v. Carter, Speers’ Eq. 533; Eobson v. Osborn, 13 Tex. 298; Vattier v. Hinde, 7 Pet. 252; Dillard v. Crocker, Speers’ Eq. 20; Hartstoek v. Hardware Co., 16 Colo. App. 48; Snelgrove v. Snelgrove, 4 Desauss. Eq. 274; Dupree v. Prank, 39 S. W. 988; Lindbloom v. Eocks, 146 Fed. 660, 77 C. C. A. 86; Lumber Co. v. Branch, 60 Fed. 201, 8 C. C. A. 562; Dodge v. Briggs, 27 Fed. 160; E. Co. v. Eankin, 107 Ark. 487; "Winters v. Powell, 180 Ala. 425; Land Co. v. United States, 217 Fed.. 11,133 C. C. A. 121; 39 Cvc. 1691. (5) It devolved upon defendant to plead and prove his plea of innocent purchaser, which he wholly failed to carry. Young v. Schofield, 132 Mo. 650. (6) The second opinion of this court, holding the sale to the I. M. Davidson Eeal Estate Investment Company void, unquestionably was right, according to the great weight of evidence, because the grantee was not a person, partnership or corporation at the time of the sale, and was not incorporated until after the sale, which fact was disclosed by the fact of the certificate of incorporation being filed in the . recorder’s office, and which was constructive notice to Townsend. Sec. 2975, E. S. 1909; Thomas v. Wyatt, 25 Mo. 24; Howard v. Brown, 197 Mo. 48; Furniture Co. v. Crawford, 127 Mo. 356; Dauthitt v. Stinton, 63 Mo. 277; Eeinhard v. Milling Co., 107 Mo. 624; Miller v. Eosenberger, 144 Mo. 299; Thomas v. Boener, 25 Mo. 27. (7) Defendant is estopped by his conduct to question the validity of the sale of the land at which plaintiff became the purchaser, because defendant attended that sale and recognized its validity by entering into the competitive bidding with others present to buy the land. Spence v. Eenfro, 179 Mo. 417,
   WHITE, C.

This suit was brought under section 2535, Revised Statutes 1909, to determine title to forty acres of land in Butler County; the petition also contains a count in ejectment.

The common source of title, it is admitted, was in I. M. Davidson who died in 1895, leaving a will. In 1901 a partition proceeding was instituted in the Butler Circuit Court by the widow and heirs of I. M. Davidson, the purpose of which was to partition this and other lands left by him. That suit proceeded to judgment, an interlocutory decree of partition was rendered in June, 1903, in which the court found the lands could not be partitioned in kind and ordered them sold. In pursuance of the order, in October of that year, the lands were sold and the I. M. Davidson Real Estate & Investment Company, a corporation, became the purchaser of the land in suit and of other lands belonging to the estate. The report of sale was duly made by the sheriff, who was a special commissioner appointed to sell the land, the sale was approved in due form, and a deed was made to the corporation purchaser. On August 3, 1905, the I. M. Davidson Real Estate & Investment Company conveyed the land to the defendant Townsend for a consideration of $500, and Townsend afterwards conveyed a half-interest to the other defendants. This is the title under which defendants claim. -

In May, 1906, Laura Carter Davidson, one of' the heirs of I. M. Davidson, deceased, filed suit in the circuit court of Butler Co'unty to set aside the judgment in partition, the sale, and deed to the corporation in pursuance of it. The defendants here were not made parties to that suit. On the trial of the cause in 1908, the sale, order approving same, and deed to the corporation were set aside on the ground of fraud, but the interlocutory decree of partition was not set aside. The case was appealed to this court, and will be found reported in 226 Mo. 1. The judgment of the circuit court was affirmed. The matters decided and their effect will be considered later.

After that decision the original partition suit, on an amended petition, proceeded to a renewal of the decree and order of sale in May, 1913. That case also was appealed to this court and is reported in 249 Mo. 474, where it will he found that the interlocutory decree of partition was ordered to he modified. Afterwards, judgment of the circuit court was entered accordingly, and sale made in pursuance of it, by special commissioner, and the plaintiff herein became the purchaser in July, 1914.

Thus it will be seen that the defendants- claim under a decree in partition and sale duly approved, and the plaintiff claims under a subsequent decree of sale in the same case, duly approved, the first sale having been set aside after the defendant’s purchase.

The answer of defendants sets up the proceedings mentioned under which they claim.

The replication of plaintiff, after a general denial, presents several objections to the defendant’s claim of title which, for convenience, we arrange as follows:

First: The commissioner’s deed under the interlocutory decree of 1903, and the judgment approving the sale were canceled and for naught held on the 11th day of April, 1908, in the suit referred to of Labra Carter Davidson against the corporation.

Second: The interlocutory decree under which the defendants claimed, rendered in 1903, was superseded and set aside and canceled by a subsequent interlocutory decree rendered in the same partition suit on the 8th day of February, 1911, and under this last decree the property was sold, the plaintiff became the purchaser, the sale was duly approved and deed made. This last decree and judgment approving the sale is pleaded as res adjudicata and a bar to the plaintiff’s claim in the premises.

Third: At the time of the alleged sale under the interlocutory decree of partition rendered, in 1903, the I. M. Davidson Real Estate & Investment -Company was not a corporation nor an entity which could take title, and therefore no sneh title passed by snch sale, a fact which the defendant knew or by the exercise of reasonable diligence could have known.

Fourth: The Supreme Court of Missouri, in the case reported in Volume 226 at page 1, held that the I. M. Davidson Real Estate & Investment Company acquired no title by the purchase and deed made in 1903, and that decision having announced that doctrine as a rule of property the plaintiff herein relied upon it in his subsequent purchase in 1913. In the latter case the corporation set up that it had sold the very land in question here and prayed to have it excluded from the operation of the judgments, and the court refused that prayer.

Fifth: When the land was sold by the special commissioner in 1913, at the time the plaintiff bought, the defendant herein was present through his agent and attorney and bid on the land and for that reason is es-topped to question the title acquired by the purchaser at that sale.

The facts in connection with the several issues thus tendered will be noticed in the opinion.

There was a judgment for plaintiff and defendant appealed.

I. The first question presented is whether the pleadings and decree in the ease of Laura Carter Davidson v. Davidson Real Estate & Investment Company, and other proceedings therein, were competent evidence, all of which proceedings were begun after the defendant acquired his title. This evidence was offered by plaintiff after defendants had exhibited their title in defense, for the purpose of showing that the sale and judgment approving same, under which defendants claim, were set aside.

The defendant Townsend, not having been a party to.that suit, could not be bound by any proceeding therein, unless he was in privity with a party to it. It is said by Freeman, in his work on Judgments, section 162, in a passage often cited:

“It is well understood, though not usually stated in express terms in works upon the subject, that no one is privy to a judgment whose succession to the rights of property thereby affected occurred previously to the institution of the suit. ... No grantee'can be bound by any judgment in an action commenced against his grantor subsequent to the grant.”

The principle is elementary, of general application, and has been applied in this State. [Schmidt v. Niemeyer, 100 Mo. 207; Powers v. Heath’s Admr., 20 Mo. 319; Githens v. Barnhill, 184 S. W. 145; Calculagraph Co. v. Automatic Time Stamp Co., 154 Fed. 166; Northwestern State Bank v. Silberman, 154 Fed. 809, l. c. 814; Schuler v. Ford, 109 Am. St. (Idaho) 233, l. c. 237; Heffernan v. Ragsdale, 199 Mo. 375, l. c. 384; Colburn v. Yantis, 176 Mo. 670, l. c. 682; Gott v. Powell, 41 Mo. 417.] It was error, therefore, to admit the pleadings, judgment and other proceedings in that case in evidence.

EL Eespondent, however, asserts that the decision of this court in the Laura Carter Davidson case, 226 Mo. 1, establishes a rule of property; that is, it determines the force and effect of the judgment and the sale under which the defendants acquired title, that plaintiff bought in reliance upon that rule of property, and, therefore, is protected in the title which he acquired.

The doctrine of stare decisis protects only those who obtain title in reliance upon the decision announced. [Reed v. Ownby, 44 Mo. 204; Dunklin County v. Chouteau, 120 Mo. l. c. 593.] The decision mentioned was rendered in 1910. If it be claimed that it announced a rule of law as applied to a given state of facts and a given record, then, before that rule was announced as applicable to a state of facts, the defendant Townsend had acquired his title and paid his money. He could not be affected by a doctrine enunciated afterwards, if it changed the law already recognized as applicable to such a case. When the plaintiff, relying upon the doctrine of that decision, if it was new doctrine, and upon the judgment which it affirmed, went to purchase he was hound, in looking up the title which he sought to acquire, to find out whether a prior purchaser had acquired an interest before the rule was announced.

But that ’decision did not in any manner change or modify any rule of law. The suit was an attack upon a judgment for fraud. The finding of the court turned upon facts dehors the record showing fraud in the conduct of the partition sale and order approving the same. All that evidence of fraud was before this court when it affirmed the judgment of the circuit court and pronounced the law as applied to the facts. In the present case we have none of those facts, we have only the naked record which, on its face, is entirely regular; and hence, the doctrine of law announced in the Laura Carter Davidson case, as applied to the facts there presented, is not necessarily applicable here. The decision has the same weight as any other decisions of this court which may be in point upon the questions presented. It will be considered later.

III. Plaintiff offered in evidence the proceedings in the partition, suit which occurred after defendant’s purchase. These subsequent proceedings, as stated above, included a modification of the interlocutory decree of partition, a renewal of the order of sale in 1913, the sale to plaintiff and approval same-' This’ evidence was introduced by plaintiff in making out his case before defendant’s title was in evidence. It was competent for that purpose; then, it was for defendant to overthrow the prima-facie ease of title thus made by showing an earlier title in himself. That the defendant did. He showed he obtained title under a judgment, regular on its face, rendered by a court having jurisdiction of the subject-matter and the parties. His title could not be impaired by a subsequent modification or annulment of that judgment in an action to which he was not a party. He is in the same position as a purchaser under a judgment which afterwards is reversed on appeal or set aside on motion. [Colburn v. Yantis, 176 Mo. 670, l. c. 682; Grott v. Powell, 41 Mo. 417; Jones v. Driskill, 94 Mo. 190; Schmidt v. Niemeyer, 100 Mo. 207.]

Plaintiff’s prima-facie title is good only if defendant acquired none by his earlier purchase. So that it only remains to consider questions presented by the record and proceedings in the partition proceeding under which defendant claims up to the time of the sale and approval. The consideration of the matter is unembarrassed by any other records or later proceedings in that or the other case. If defendant’s title was good at the time he received his conveyance it is still good.

IV. We come now to a consideration of the record on its merits. The interlocutory decree of partition and order of sale where formal and regular, the report of sale by the sheriff as commissioner was also regular and was approved by the circuit court in a ^ual judgment and a deed made in pursuanee of it in due form. This was the record which presented itself to.the defendant Townsend when he purchased the land in 1905. He had no notice of any infirmity, irregularity or fraud. He bought, paid his money for the land, and received a deed in due form.

Plaintiff asserts that the sale, the order approving it, and deed in pursuance of it, were declared void by this court in the Laura Carter Davidson case and, being void and not merely voidable, it can be attacked collaterally as it was attacked in this case.

In ascertaining just what was decided in that ease we must look at the facts before the court there. In the first place, the court in that opinion calls attention several times to the fact that the attack was not collateral, hut direct. The court said, on page 29: “It should 'be borne in mind that in this case the plaintiff charges the falsity of this record. This is a direct proceeding attacking the court proceedings, so far as they relate to this case from the interlocutory judgment in partition down to the making of the deed.” The italics are ours.

It will be remembered that the original interlocutory decree was not set aside, but was held to be valid; it was only the sale in pursuance of it that was set aside. The order approving the sale was obtained by fraud, there was proof of “falsity of the record.” This court then points out several important particulars in which the record did not speak the truth, so that the court was deceived into rendering the judgment approving the sale. The court in that connection uses this language: “That judgments can be attacked in an equitable action to set them aside on the ground of fraud in the procurement thereof, there can be no question.”

In the present case, that same record imports absolute verity and stands without an attempt to impeach it. The plaintiff offered no evidence to show fraud in procuring the judgment; he onlv offered the pleadings and judgment in another case, which we have held above to have been inadmissible; the facts there found are in no sense res adjudicata here.

In addition to fraud, there were some irregularities in the conduct of that sale. The court mentions, among other things, the report of sale by the sheriff which, by the record in that case, did not show he was acting as commissioner appointed to make the sale. That irregularity does not appear here. The report is made and signed by the sheriff as commissioner.'

In short, the evidence of fraud and irregularities which was before the court in that proceeding.is not before the court in this. So that case, being entirely different from this case in the record presented, was not authority for the judgment here.

V. It becomes necessary, however, to determine whether the judgment under which defendant claims may be attacked for fraud in this collateral proceeding. That is, can the plaintiff in this case impeach the order approving the sale under which the defendant claims by offering evidence to show it was procured by fraud? If not, it will be unnecessary to remand the case in order to give plaintiff an opportunity to make such proof.

The rule is that a judgment obtained by fraud may be impeached by the parties to it or those in privity with them in a direct proceeding for that purpose, as indicated in a passage quoted above from the decision in the Laura Carter Davidson case. But parties to an action and parties in privity with them cannot collaterally impeach a judgment on the ground of fraud. [2 Freeman on Judgments, sec. 336; DeGraw v. DeGraw, 7 Mo. App. 121; State ex rel. v. Ross, 118 Mo. l. c. 45-6; Hart v. Hunter, 144 S. W. (Tex.) l. c. 884; Morris v. Sadler, 88 Pac. (Kan.) 69; Reed Brothers v. Nicholson, 158 Mo. 624; Johnson v. Realty Co., 167 Mo. 325, l. c. 341.] If the plaintiff in this case is in privity with the parties to that judgment then he cannot attack it collaterally for fraud. Privity is defined as mutual or successive relationship to the same rights of property as grantor and grantee. There are cases which indicate that plaintiff is privy to the judgment, having bought after its rendition. [Crispen v. Hannavan, 50 Mo. 415, l. c. 418; Womach v. St. Joseph, 201 Mo. 467, l. c. 478; Summet v. Realty Co., 208 Mo. 501, l. c. 510; Cooley v. Warren, 53 Mo. 166, l. c. 169; Withers v. Railroad, 122 Mo. App. 282, l. c. 292; State ex rel. Subway Co. v. St. Louis, 145 Mo. 551, l. c. 567.

But it is not necessary to decide that plaintiff is in privity with parties to the judgment. He is precluded from a collateral attack if he is regarded as a stranger.

It has been held that a judgment may be impeached in a collateral attack on the ground of fraud in its procurement by a stranger to it. However, that is an exception to the general rule that a judgment regular on its face cannot be attacked' collaterally, and applies to cases where the stranger attacking the judgment is prejudiced by. i-t in respect to some preexisting right. The doctrine usually is applied where there is a case of collusive judgment in fraud of creditors. A stranger, whose right accrues to him after the rendition of the judgment obtained by fraud, cannot attack it on that ground in a collateral proceeding. ■ [Stoutimore v. Clark, 70 Mo. 471, l. c. 478; Hogg v. Link, 90 Ind. 346; Johns v. Pattee, 55 Iowa, 665; 2 Freeman on Judgments, sec. 335; Githens v. Barnhill, 184 S. W. (Springfield Court of Appeals) 145.]

The case of Hogg v. Link is directly in point and reviews many authorities where the ruling is as stated. The court in that case said on page 352:

“Fraud in the procurement of the judgment is an extrinsic and collateral fact, and constitutes ground for a direct attack upon the judgment by a party thereto, by an application corresponding to an original bill in equity. ’ ’

The court then quotes from an early Iowa case, as follows (p. 357):

“If a judgment was fraudulent by collusion between the parties to it, on purpose to defraud a subsequent purchaser, the case would present a very different question. But if the judgment was fraudulent only as between the parties, it is for the injured party alone to apply the remedy.’ ’

And further, at page 357, the court said:

“It is stated to have been a principle of the common law, that a fraud could only be avoided by him, who had a prior interest in the estate affected by the fraud, and not by him who, subsequently to the fraud, acquired an interest in the estate.”

The case of Githens v. Barnhill, 184 S. W. 145, was an action on covenants of seizin, contained in a deed where the covenantor conveyed a title acquired under the same partition sale as that under which the defendant claims here. The covenantee afterwards purchased the alleged outstanding title which was acquired through the same proceeding and sale as that under which the plaintiff here claims. The Springfield Court of Appeals held the plaintiff already had a good title and was under no necessity to buy thé alleged outstanding title, and that the proceeding under which the I. M. Davidson Real Estate & Investment Company acquired title, being regular on its face, was not subject to collateral attack.

The exception to the general rule regarding a collateral attack upon a judgment can avail only one whose rights have been affected by it, and not one who acquires an interest in the subject-matter of the judgment after its fraudulent procurement. The plaintiff had no right which was affected by the judgment, having acquired his claim long afterwards. He is in the same position as the parties to it themselves in his inability to attack it collaterally. If he had offered evidence to show fraud in procuring the order approving the sale under which defendant claims similar to that shown by the record in the Laura Carter Davidson case, the evidence would have been inadmissible, and would not avail the plaintiff if the cause were remanded for another trial.

VL. Another reason advanced to show that the conveyance to the corporation, the I. M. Davidson Real Estate & Investment Company in 1903, was void, is because it is said there was no such corporation in existence at the time. The sale was made on October 12, 1913, by the commissioner. The corporate articles of association were filed on that day, but the certificate of incorporation was issued by the Secretary of State on October 14th. The report of sale by the sheriff as commissioner was approved on the 22nd day of October, and the deed to the corporation executed on that day, so that on the day of the sale the corporation had no legal existence, but was duly in being at the time the deed was made to it, and had been for eight days.

Respondent cites many authorities to show that a conveyance made to a non-existent person or corporation is void, a proposition which we may concede to be correct.

It is a common occurrence for the promoters of a corporation t.o make contracts which afterwards are assumed, and the benefits of the same accepted, by the corporation when formed. There are numerous instances of that kind and in such case the right and liability of the corporation relates back to the time the contract ’was made. [Waterman’s Appeal, 26 Conn. 96; Stanton v. N. Y. & E. Railway, 59 Conn. 272, 21 Am. St. 110; Reichwald v. Commercial Hotel Co., 106 Ill. 439; McArthur v. Times Printing Co., 48 Minn. 319; Rogers v. N. Y. & T. Land Co., 134 N. Y. 197; Bank of South Carolina v. Campbell, 2 Rich. Eq. 179.]

This court recognized that rule in the Davidson case. At page 34 (226 Mo.), this language with respect to the sale was used: “Of course, the promoters of defendant might have had someone bid the property in, and after-wards transfer the bid to the corporation when it came into existence, and had the deed made to the corporation, but this was not done.”

From this passage it appears that there was evidence before the court as to the manner in which the sale took place, a matter which is not before the court in this case.

The judgment of the circuit court, regular on its face, approving the report of sale by the sheriff as special commissioner, was duly entered in October 22nd. This judgment cannot be attacked by plaintiff in this collateral proceeding by showing it was procured by fraud, that it does not speak the truth, or that there was any irregularity in the sale which is there reported and approved.

VII. Finally, it is claimed by respondent that the defendant Townsend was present at the time of the sale to the plaintiff in 1913, and bid on the property, and is therefore estopped to assert a different title ke ka(j previously acquired. The facts, as shown by the evidence in relation to that, are these: The plaintiff had attempted to compromise his claim with the heirs of I. M. Davidson who brought the suit and procured the last order of sale; failing in that he offered five hundred dollars, as he said, to buy his peace, and requested David W. Hill to bid that much for him at the sale. Hill represented the heirs of Davidson, the parties who were having the sale made, and in this case he represents the plaintiff. The defendant did not conceal the claim or title which he already had. On the contrary, he asserted it and attempted to buy the adverse claim which was sold at the time of the sale in order to prevent future trouble. Under these circumstances he is not estopped to assert a title which he had previously acquired.

The judgment is reversed.

Roy, C., concurs.

PER CURIAM:

The foregoing opinion by White, 0., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM:

license: Public Domain

text:
    ERMA D. BELL et al., Appellants, v. CHARLES B. SMITH et al.
    Division Two,
    July 16, 1917.
    1. WILL: Proof: By One Subscribing Witness: Remaindermen Considered Heirs. Proof by only one subscribing witness to a will, without any showing as to what has become of the other witnesses, is not proof in accordance with the statutes of Missouri; and where the will offered in evidence was never proved in this State, and the proof made in the foreign State shows it to have been proved by only one witness, it cannot be held to be a valid will, and though it undertakes to make the claimants of land remainder-men subject to a life estate, they must be held, upon an adjudication of its invalidity, to be only heirs of the owner and to have taken, if anything, an estate in praesenti.

    2. LIMITATIONS: Thirty Years. Claimants to land cannot be held to be remaindermen under a void will, tut they took an estate in praesenti; and if the owner under whom they claim died in 1876 and no taxes were paid by them at any time, and they were at no time in possession of the wild land, which was sold at a tax sale in 1907 to defendant, who has since been in actual adverse possession, they are barred and the title has vested in defendant by the thirty-year Statute of Limitations.

      Appeal from Butler Circuit Court. — Hon. J. P. Foard, Judge.
    Affirmed.

      J. W. Chilton for appellants.
    (1) The will of William B. Dorn conveyed to his widow a life estate in the land in controversy, and remainder in feq to his children. Sec. 578, R. S. 1909; Russell v. Eubanks, 84 Mo. 83; Rodney v. Landau, 104 Mo. 251; Jordon v. Meier, 31 Mo. 40; Reinders v. Koppelman, 68 Mo. 482; Byrne v. Prance, 131 Mo. 659. (2) The probate of a will relates back to the death of the testator, validating it as a conveyance of title from his death, and preventing a hiatus in the title. No estate can or ought to intervene between the testator and his devisee. Parris v. Burchard, 262 Mo. 343; Boothe v. Cheek, 253 Mo. 131; Richards v. Pierce, 44 Mich. 445; Goodman v. Winters, 64 Ala. 429; Sutphen v. Ellis, 35 Mich. 449; Wilson v. Wilson, 54 Mo. 213. Prom the date of the death of the testator until probate of the will, be it however long, no title does or can vest in the heirs of testator by descent. Goodman v. Winters, 64 Ala. 410. See also authorities above cited. (3) At common law there is no limit of time within which a will must be probated, and there is no statute in Missouri changing this common-law rule. Hence a will affecting land in Missouri may be probated any time after-death of the testator. 23 Am. & Eng. Eney. of Law (2 Ed.), 123 (par. “b”); Boothe v. Cheek, 253 Mo. 119; Haddock v. Railroad, 146 Mass. 160; Peatheree v. Lawrence, 33 Miss. 615; Rebhan v. Mueller, 114 111. 343; Parris v. Burchard, 262 Mo. 342. (4) The probate of a will is a judicial act which cánnot be assailed collaterally; neither can the evidence upon which the probate judgment is based be inquired into in a collateral proceeding. Jordon v. Meier, 31 Mo. 40; Cohen v. Herbert, 205 Mo. 551; Sturm v. Larwell, 110 Mo. App. 159; Charleton v. Brown. 49 Mo. 353. (5) But even if it were competent to inquire into the evidence upon which probate of a will was granted, it would be found that when the testimony of the subscribing witnesses is not obtainable, the probate may nevérthless be granted upon other evidence which satisfies the court that the instrument offered is in fact the will of the decedent. Craig v. Craig, 156 Mo. 358; Farris v. Burchard, 262 Mo. 343; Mays v. Mays, 114 Mo. 536; Featheree v. Lawrence, 33 Miss. 615; Secs. 552-558, R. S. 1909. (6) A foreign will which has been probated in the State where executed according to laws of Missouri and in fulfillment of legal requirements of this State, is valid and admissible in evidence here in any judicial proceeding, notwithstanding it has never been either probated here or recorded upon the deed records of the county where the land is situate in this State. Rodney v. Landau, 104 Mo. 260; Lewis v. St. Louis, 69 Mo. 598; Bradstreet v. Kinsella, 76 Mo. 66; Graves v. Fender, 82 Mo. 504; Drake v. Curtis, 88 Mo. 644. (7) Possession of land by a life tenant, or one holding the title of a life tenant, can never be adverse to the title of a remainderman, and can never set in motion any statute of limitations as against the remainderman so long as the life estate continues. Waddle v. Frazier, 245 Mo. 391; Moran v. Stewart, 246 Mo.' 462; Bradley v. Goff, 243 Mo. 95; Hall v. French, 165 Mo. 430; Swearengin v. Stafford, 188 S. W. 97. (8) Remaindermen are under no duty to pay taxes on land so long as the life estate exists; hence the provisions of the thirty-year Statute of Limitations' have no application to remainder-men. Howell v. Jump, 140 Mo. 441; Bone v. Tyrrell, 113 Mo. 175; Bradley v. Goff, 243 Mo. 102.

      John A. Gloriod and Bretvster S Welker for respondent, Charles B. Smith.
    (1) The will of William B. Dorn was not proven or probated in accordance with the provisions of the laws of Missouri. Only one witness was examined and he only as to the signature of one of the purported attesting witnesses. R. S. 1909, secs. 537, 567; Cowan v. Shaver, 197 Mo. 203. (2) One dealing with lands situate in this State is not charged with constructive notice of a will probated in another State. The will must be probated here, or a copy thereof and of the foreign probate be recorded here, pursuant to the provisions of our statute, before the purchaser is charged with constructive notice. In this case the will was not even probated in the foreign state until after the institution of this suit. Yan Syekel v. Beam, 110 Mo. 593; Keith v. Keith, 97 Mo. 223; Graves v. Ewart, 99 Mo. 13. (3) The law presumes all men to have died intestate. Yan Syckle v. Beam, 110 Mo. 593; Keith v. Keith, 97 Mo. 223; Graves v. Ewart, 99 Mo. 13. (4) Even though plaintiffs had the right to have a duly authenticated copy of Dorn’s will recorded here after it had been duly probated in South Carolina, yet it could not affect the rights of Smith after he had acquired his title by the thirty year statute and after the institution of this suit. Keith v. Keith, 97 Mo. 231; Fairbanks v. Long, 91 Mo. 631. (5) Adverse possession not only bars action but confers title in every respect as good for the purposes of attack or defense as a title by deeds -running back to the government. Scannel v. Fountain Co., 161 Mo. 618; Kirton v. Ball, 168 Mo. 633; Franklin v. Cunningham, 187 Mo. 196. (6) Remaindermen are obliged to pay taxes to protect their interests if the life tenant neglects to do so. Hall v. French, 165 Mo. 438.
   ROY, C.

This is a suit to quiet title to the north-half of section 23, township 26, range 6 east, in Butler County. There was a judgment for the defendants, and plaintiffs have appealed.

William B. Dorn owned the land at the time of his death in 1876. He left a will by which he devised the land to his wife during her life with the remainder on her death to her children. The plaintiffs are his surviving children and the heirs of those who were dead. The widow is still living. William B. Dorn, the testator, was ’at the time of his death a resident of South Carolina. The will was never proved in this State. It was proved in South Carolina as follows:

The State of South Carolina
Edgefield County
Probate of Wm. B. Dorn’s Will.
By L. Charlton, Esq., Judge of Probate of said County.
Personally appeared before me, Horace Parker, who being duly sworn, maketh oath and says that he saw Wm. B. Dorn, sign, seal, publish, pronounce and declare the annexed instrument of writing bearing date the 5th day of September Anno Domini one thousand eight hundred and seventy-six to be and contain his last will and testament; that he, the said Wm. B. Dorn, was then of sound and disposing mind, memory and understanding, according to the test of deponent’s knowledge and belief and that H. A. Gray, S. H. Manget and myself at the request of the testator and in his presence, and in the presence of each other, witnessed the due execution thereof. Sworn to and subscribed before me, this the twentieth day of January A. D. 1877.
H. Parker,
L. Charlton, Judge of Probate, E. C. (L. S.)
“State of South Carolina )
In Probate Court.
County of Edgefield J
“Whereas, the last will and testament of Wm. B. Dorn, of above county and State, as dated the 5th day of September, 1876, and recorded January, 1877, by Mr. H. Parker, one of the subscribing witnesses thereto, in the presence, or before Judge L. Charlton, Probate Judge, in and for the county of Edgefield, State aforesaid, at said time;
“And Whereas, I, W. T. Kinnaird, as probate Judge in and for said county and State at this time (May 15th, 1918) have had the signature of said H. Parker, the witness aforesaid, duly attested and sworn to by Mr. A. S. Tompkins, an attorney of this county and town, as matter of precaution, said witness being now dead;
“And Whereas, said Judge of Probate E. Charlton (who is als.o dead) omitted or failed, for some unknown cause, to issue, or file his decretal order in connection with the proceedings of the probation by him, of said will, ordering and decreeing said probated will to be admitted to probate in common form as required by law.
“Now, Know All Men By These Presents that, 1, W. T. Kinnaird, as probate judge in and for the county of Edgefield, State of South Carolina, at the present time, upon the consideration of the testimony above set forth and being fully satisfied with the sufficiency thereof,
“Do hereby adjudge and decree that the said instrument in writing purporting to be the last will and testament of said Wm. B. Dorn, be now admitted to probate in common form.
“It Is So Ordered. It is further ordered that this instrument in writing, ordering the will of said Wm. B. Dorn admitted to probate in common form,' be recorded in the proper records of the county.
“Witness my hand and seal May 15th, 1913. (L. S.) Ordered this the 15th day, of May, A. D. 1913. W. T. Kinnaird,
Judge of Probate of Edgefield County, South Carolina.” (Duly Certified).

No taxes were ever paid on the land.by the plaintiffs or those under whom they claim after death of the testator.

The defendant claims title through deeds under execution on judgment for taxes.

No one was ever in actual possession of the land until the defendant enclosed it with a fence in 1907, since which time defendant has been in the actual, adverse possession of the land, claiming to own the same absolutely, paying taxes thereon.

When the will above mentioned was offered in evidence by the plaintiffs, the defendant objected to it on the ground that it had not been legally and properly proved, as it had been proved by only one of the three subscribing witnesses. The objection was overruled and the will together with the proof was read in evidence. The court adjudged that the plaintiffs had no right, title or interest in the land and adjudged, in accordance with the prayer for cross:relief in the answer, that the defendant was the absolute owner of the land.

I. Though the will was admitted in evidence, the trial court in rendering its judgment for the defendant, evidently did so on the theory that the will was not properly proved.

Section 567 of the Revised Statutes provides:

“Any person owning real or personal estate in this State may devise or bequeath such property by last will, executed and proved, if real estate be devised, according to the laws of this State, or if personal estate be bequeathed, according to the laws of this State or of the country, State or territory in which the will shall be made.”

Appellants contend that the will in question has been proved in accordance with the requirements of the laws of this State. They cite us to Craig v. Craig, 156 Mo. 358, where it is said: “But the law does not make the proof of the will dependent alone on the testimony of the subscribing witnesses or render their testimony absolutely essential.” They overlook the next paragraph in that opinion where it is said: “No court in which a will is offered for probate would be satisfied without having the evidence of the subscribing witness, if attainable, unless the proponents show good reason for not producing them, but when produced their evidence is not conclusive, and it is not the only evidence upon which a will can be established.”

Whether there is any difference in that respect between the formal ex parte proof of a will and the proof in a suit to contest a will we will not now undertake to say. But we do hold that proof by only one subscribing witness, without any showing as to what has become of the other witnesses, is not a proof of the will in accordance with Sections 550, 551, 552, 553 and 554 of our Revised Statutes. This exact question has never heretofore been before this court, but we do not think that the sections of the statute above mentioned can be so construed as to validate the proof of the will as it was made in this case.

II. As there is no valid will in the case, the plain-are n0^ remaindermen under that will. Their estate was one in prcesenti, and they are barred by Section 1884 of our Revised Statutes, which is commonly called the thirty-year Statute of Limitations.

The judgment is affirmed.

White, C., concurs.

PER CURIAM:

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur, Faris, J., in result.


author: WILLIAMS, J.

text:
    GEORGE TEBEAU v. GLOBE & RUTGERS FIRE INSURANCE COMPANY, Appellant.
    Division Two,
    July 16, 1917.
    1. FIRE INSURANCE: Meaning of Property. The word “property” used in a clause in a fire insurance policy declaring that the policy shall be void “if the interest in the property be not truly stated” means the, property which in fact is protected by the policy; and if the insured was the unconditional owner of that property his interest is truly stated by a clause which names him as the owner, although there was at the time litigation over the fee of the ground on which the property stood.
    2. -: Interest of Insured. The words “interest of the insured” in a clause of the policy, in this case, declaring that the entire policy shall be void “if the interest of the insured be other than unconditional and sole ownership,” mean the interest of the insured in the property insured, and was not intended as including any interest which the insured might have or not have in the ground on which the property was located.
    3. -: Warranties: Fee Simple Title: Outstanding Inehoate Dower. Within the contemplation of a clause in the policy declaring it should be void “if the subject of insurance be a building on ground not owned by the insured in fee simple,” an outstanding contingent dower right did not render the title of the insured less than the fee simple title.
    4. -: -: Concealment: Materiality: Test. A clause in an insurance policy declaring that the policy shall be void "if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning the insurance or the subject thereof” does not avoid the policy or render a concealment material unless the disclosure of the facts concealed would have induced the insurer to decline the risk or enhance the premiums.
    5. -: -: -: Pending Litigation: Materiality: Question for Jury. Where the insurance policy covered a baseball stand, bleachers, club-house, ticket-office and fencing, which had been built, under a contract containing an option to purchase the ground, and in a suit for specific performance the title had been decreed to the insured, and he had paid the purchase money into court and thereafter filed his motion asking for a diminution in the purchase price because the vendor’s wife had an outstanding dower right which could not be controlled by the decree, the policy, thereafter issued, was not avoided by said clause because of the fact that the insured failed to inform the insurer that an appeal was pending from said decree, since the question of materiality was one for the jury, and there was evidence tending to show that the pending litigation was an immaterial fact in determining the risk or amount of premium.

      Appeal from Jackson Circuit Court. — Hon. Franlc G. Johnson, Judge.
    Affirmed.

      Ed. E. Tates and Claude T. Goble for appellant.
    (1) The policy was to be void “if the interest of the insured be not truly stated herein.” Interest is something different from title or ownership. Gibb v. Ins. Co., 61 N. W. (Mich.) 137. It includes any right or estate in or lien on real estate. Crosby v. Ottman, 85 Fed. 497, 29 C. C. A. 295; Abbott’s Law Dictionary— “Interest.” By its plain terms, therefore, the policy required Tebeau to have stated in the policy the true facts with .reference to his “interest” in the insured property. (2) By accepting the policy as written Te-beau warranted that his interest was truly stated. Mers v. Ins. Co., 68 Mo. 187. The holding of this case is that one who tabes insurance must disclose his interest whether inquired about or not. Bradley v. Ins. Co., 90 Mo. App. 392. (3) Thé policy sued on provides against conditional ownership. This provision is valid. The reason for it is given in Reithmueller v. Fire Assn., 20 Mo. App. 246, and Barnard v. Ins. Co., 27 Mo. App. 33. (4) Even under the policy- clause against concealment, the state of interest must be disclosed. 2 Cooley’s Briefs on Law of Ins., p. 1204. Concealment is “the withholding of any fact material to the risk which the insured in honesty and good faith ought to communicate.” Clark v. Ins. Co., 40 N. H. 333, 77 Am. Dee. 721. Of course it must be intentional. Boggs v. Ins. Co., 30 Mo. 63. Nor is the concealment material unless the disclosure of the matter would have a tendency to influence the insurer in passing on the risk. Boggs Case, 1. c. 67. “A concealment of facts by an applicant for insurance of a building against fire is not material unless a disclosure of the facts concealed would have induced the insurer to decline the risk or enhance the premium.” Boggs v. Ins. Co., 30 Mo. 63. All of the evidence in this ease went to prove concealment. Prior to the decree in Tebeau v. Ridge, the risk was written with express warranty that Ridge owned the property in fee; this despite the fact that he held by lease only, with option to purchase. Neither before nor after decree was the company informed of the state of the title. The policy at risk was written in St. Louis. It required the interest of Tebeau to be “unconditional” and to be “truly stated.” The company was never informed that the property was the subject of litigation — that an adverse decision in a law suit would place bim in the position of a mere renter and make the property insured of little value. The uncontradicted evidence was that had the company known that it would not have taken the risk. Agents of the company testified that such situation would have made no difference to companies represented by them. This testimony is clearly outside the case for under the Boggs Case, the test is not what others might have done, but what effect would the situation have had on defendant, first, in reference to carrying the risk at all; second, what should be the rate? Would not the rate present a question analogous to peace and war rates in maritime insurance? Moreover, moral hazard is a large element that enters into the business of insurance. See 2 Cooley, Ins. Briefs. 1340: “It is in their relation to the moral hazard that the materiality of statements as to title and interest rests.” The decree in equity being subject to review both on the law and facts, Tebeau’s ownership, besides not being “truly stated” was not unconditional. A “condition” is defined as being a “situation containing or dependent on a condition or conditions, not absolute; made or granted on certain terms.” Century Dictionary.

      Hadley, Cooper, Neel & Wright for respondent.
    (1) Plaintiff had title in fee simple and within the meaning of the “sole and unconditional” ownership clause, regardless of the outstanding inchoate right of dower of Mrs. Ridge. 2 Clement on Fire Insurance, p. 184 , rule 8; p. 176, rule 35; p. 76, rule 58; 2 Cooley, Briefs on the Law of Insurance, 1352; 16 Am. & Eng. Ency. Law, p. 931; 19 Cyc. 698; Ins. Co. v. Bevis, 18 Ind. App. 17; Ins. Co. v. Kloeber, 31 Gratt. (Ya.) 749; Ins. Co. v. Spankneble, 52 111. 53. (2) The decree of the circuit court in Tebeau v. Ridge, was final and effective, notwithstanding the pendency of the appeal. Rodney v. Gibbs, 184 Mo. 1; Railroad v. Atkinson, 17 Mo. App. 484; Burgess v. Hitt, 21 Mo. App. 313; Ins. Co. v. Hill, 17 Mo. App. 590; Brown v. Curtiss, 155 Mo. App. 376; Biek v. Dixon, 147 Mo. App. 69; Yantine v. Butler, 157 S. W. 588; 2 Cyc. 908. This rule obtains generally and is the law in Missouri. An appeal' does not vacate, suspend or in any way affect the operation of a judgment or decree. A supersedeas bond merely stays execution, but there was no supersedeas in the Ridge case. 2 Cyc. 908. (3) The fact of •the then pending litigation over .plaintiff’s title did not constitute a violation of the “sole and unconditional” ownership clause of the policy. 2 Cooley, Briefs on the Law of Insurance, 1369 (a), 1371 (b) and 1332 (d); 2 Clement on Fire Insurance, 152, rules 5 and 7; Morrison v. Ins. Co., 18 Mo. 262; Boulware v. Ins. Co.. 77 Mo. App. 639; Leather Co. v. Ins. Co., 131 Mo. App. 701; Gaylord v. Ins. Co'., 40 Mo. 13; Weber v. Ins. Co., 35 Mo. App. 521; Lingenfelter v. Ins. Co., 19 Mo. App. 267. 2 Cooley, Law of Fire Insurance, p. 1371, para. (c). A vendee in possession under a contract of purchase and being entitled to specific performance is the sole and unconditional owner within the meaning of this clause. 2 Cooley, Briefs on Law of Insurance, 1376, 1353-54; 2 Clement on Fire Ins., 168, rule 27; 167, rule 26; Lingenfelter v. Phoenix Ins. Co., 19 Mo. App. 267; Insurance Co. v. Cox, 98 Pac. 552, 20 L. R. A. (N. S.) 782. Though, in the contract of insurance the assured stipulated that the property was “his,” or that he was the owner thereof, such contract was not avoided by the fact that he was only a vendee under a contract for the purchase of land, and did not hold the legal title thereto. Ins. & T. Co. v. Lewis, 42 Ga. 587; Gilman v. Ins. Co., 81 Me. 488; Wainer v. Ins. Co., 153 Mass. 335, 11 L. R. A. 598; Ins. Co. v. Fogelman, 35 Mich. 481; Ins. Co. v. Martin, 40 N. J. L. 568; Martin v. Ins. Co., 44 N. J. L. 273; Ins. Co. v. Tyler, 16 Wend. 385; McCulloch • v. Norwood, 58 N. Y. 562; Chase v. Ins. Co., 22 Barb. 527, 20 N. Y. 52; Acer v. Ins. Co., 57 Barb. 68; Dohn v.' Ins. Co., 5 Lans. 275; Pelton v. Ins. Co., 13 Hun, 23, 77 N. Y. 605; Ins. Co. v. McCulloch, 21 Ohio St. 176. (4) Plaintiffs failure to disclose the fact that the appeal was pending or that the title was in litigation did not constitute the concealment of a material fact. The trial court so found and held as a matter of fact. Boggs v. Insurance Co., 30 Mo. 63. (5) The fact pending litigation was not material, as a matter of law. 2 Cooley, Briefs on the Law of Insurance, 1362, 1332 (D); Morrison v. Ins. Co., 18 Mo. 262; Hill v. Ins. Co., 2 Mich. 476; Boulware v. Ins. Co., 77 Mo. App. 639; Leather Co. v. Ins. Co., 131 Mo. App. 701; Gaylord v. Ins. Co., 40 Mo. 13; Weber v. Ins. Co., 35 Mo. App. 521.
   WILLIAMS, J.

This is a suit upon a policy' of fire insurance. Trial was had before the circuit court of Jackson County, without a jury, resulting in a.judgment in favor of the plaintiff in the sum of $8,400. Thereupon defendant duly perfected an appeal. The important facts may be summarized as follows:

The policy of insurance was issued for one year beginning December 9, 1911. The fire occurred September 22, 1912. The property covered by insurance was the “frame, concrete and brick foundation base-ball stand including bleachers, club-house, ticket-office and fencing,” located at Olive and Twentieth Streets, Kansas City, Missouri. The total loss from the fire amounted to $20,000, $14,000 of which was covered by insurance, including this policy for $8,000. Said policy contained the following paragraphs:

“ (1) This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact and circumstances concerning this insurance or the subject thereof; or if the interest of the insured in the property he not truly stated therein. .. .
(2) This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance he a building on ground not owned by the insured in fee simple.”

Originally the plaintiff leased the land, upon which this ball park and improvements were located, from the owner, Thomas S. Ridge. The lease contract also contained an option of purchase clause^ in favor of the plaintiff. Plaintiff owned all of the insured property at the time of the fire and concerning this there is no dispute; hut defendant does deny that plaintiff owned the fee simple title to the land, within the meaning of the insurance clause. On this point, the evidence was that, in 1909, plaintiff exercised the option of purchase given him by the lease, but that Thomas S. Ridge refused to convey the property. Mr. Ridge’s wife did not join in the lease or option contract. Plaintiff then brought suit for specific performance against Ridge, and on April 11, 1910 (which was before this policy was issued) the circuit court of Jackson County found in favor of plaintiff in the suit for specific performance and decreed the title to this land to he in the plaintiff, upon the payment of the purchase price of some $68,000. The plaintiff, thereupon, immediately deposited the purchase money in court. Afterwards the plaintiff filed a motion, in that cause, asking the court to allow him a diminution of the purchase price called for in the option of purchase by reason of the fact that Mrs. Ridge had an outstanding dower right which could not be controlled by the specific performance decree. The court overruled that motion and both the. defendant Ridge and the plaintiff Tebeau duly appealed, from the judgment of the circuit court, to this court. The case was pending here on appeal at the time the insurance policy, in question, was issued and also at the time the fire occurred. Afterwards the case was decided here. [Tebeau v. Ridge, 261 Mo. 547.]

The vice-president of the defendant company testified, by deposition, that defendant did not know that the property was involved in litigation at the time the policy was issued, and had it known so it would not have issued the policy.

One other witness testified for the defendant that it was the custom of insurance companies not to write policies on property which was involved in litigation.

In rebuttal, plaintiff offered evidence tending to show that it was the custom of insurance companies to write insurance on property involved in litigation of the character here mentioned.

There was also evidence showing that after this fire plaintiff rebuilt the grandstand and baseball properties and that, thereafter; insurance companies were informed of the pending litigation; but, notwithstanding said information, they issued policies on said property and at a reduced rate.

The only declaration of law offered in the case was a declaration in the nature of a demurrer to the plaintiff’s evidence, offered by defendant; and the sole question involved upon this appeal is whether or not plaintiff made out a case under the pleadings and evidence.

I. The policy provides that it shall be yoid “if the interest of the insured in the property be not truly stated.” What is the meaning of the word “ property” in the above clause? Does it include property, other than that covered by the policy, or does it simply mean the property which is in fact protected by the policy? That the latter is the correct meaning we entertain no doubt. The uncontroverted evidence in this record shows that plaintiff was the unconditional owner of the property which was the subject of insurance at the time the policy was issued and later when the fire occurred. We, therefore, disallow appellant’s contention that the insured’s interest in the property was not truly stated.

II. The policy further provides: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole-ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.” What is the meaning of the phrase “interest of the insured” in the above clause? Here again, we are of the opinion, it can mean nothing other than the interest of the insured in the property insured, and that it is not intended as including any interest which the insured might have or not have in the ground upon which the property is located. It is to be presumed, absent language in the policy clearly showing a contrary intention, that the term “interest of the insured” was intended as referring to the interest of the insured in the property which is the very subject-matter of the policy and the very property which the policy is made to cover. It will be noticed by reading the latter portion of the above' clause that when the interest of the insured in property other than that covered by the policy is intended to be included clear and certain language is used showing that such other property is to be considered. If it should be held that the term “interest of the insured” is sufficient in its scope to cover the interest of the insured in the ground upon which the insured property is located, then it would follow that the use of the subsequent clause “or if the subject of insurance be a building on ground not owned by the insured in fee simple” was wholly unnecessary and performed no useful function in the policy. Since as above stated the evidence was sufficient to justify the court in finding that the interest of the insured (in the subject of -insurance) was that of unconditional and sole ownership, we likewise rule this point against appellant’s contention.

Was the ground, upon which these buildings were located, owned by the insurer in fee simple within the meaning of said policy? In other words, did ^ie outstanding contingent dower right of Mrs. Ridge render the title of the insured less, than the fee simple title within the contemplation of said policy? After a careful review of the authorities, we have reached the conclusion that the fee simple title to said land was vested in the insured, at the date of the policy and subsequent loss,' notwithstanding the existence of such outstanding contingent right of dower.

The correct rule here applicable, and which appears to have the support of the great weight of the authorities on the point, is stated in 2 Clement on Fire Insurance, page 184, as follows:

“The fact that the insured has title to the land on which the building insured is situated by a deed from a married man whose wife did not join in the conveyance, does not prevent the insured from being the owner in fee simple; the estate owned by the wife who did not sign the deed is ’an estate in the land itself, and not a mere incumbrance resting upon it, but it is not until the death of the husband that the wife has any claim, legal or equitable, upon the real estate so conveyed, and if she does not survive her husband, her estate terminates.”

To the same effect are the following authorities: 2 Cooley, Briefs on the Laws of Insurance, page 1352; 16 Am. & Eng. Ency. Law, 931; 19 Cyc. 698 (note); Insurance Co. v. Bevis, 18 Ind. App. 17; Insurance Co. v. Kloeber, 31 Gratt. 749; Commercial Ins. Co. v. Spankneble, 52 Ill. 53, l. c. 57.

III. The policy further provides: “This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning th¿ insurance or the subject thereof.”

Appellant contends that since the insured failed to inform the appellant of the fact that an appeal was pending from the aboye mentioned decree of the Jackson County Circuit Court, in the specific performance suit of Tebeau v. Ridge, that such failure upon the part of the insured amounted to a concealment of a material fact within the meaning of said policy. We are unable to agree with this contention.

In the ease of Boggs & Leathe v. Insurance Co., 30 Mo. 63,. the same being the main case relied upon by appellant in support of the above contention, it was held that a concealment was not material “unless the disclosure of the facts concealed would have induced the insurer to decline the risk or enhance the premium.” And it was further therein held: “The question of the materiality or immateriality of the fact is always for the jury.” [Id., l. c. 67.]

In the case at bar there was evidence upon the part of plaintiff tending to show that the pendency of said litigation was an immaterial fact in determining the hazard of the risk or the amount of premium. There was evidence offered by appellant to the contrary. This was a law suit tried before the court sitting as a jury. He found for plaintiff and we are, therefore, to presume that he found that the fact was not a material one. There having been sufficient evidence to support such a finding it disposes of the point now urged by appellant and it becomes unnecessary to discuss the proposition as to whether the acts of the insured, as disclosed by this record, would or would not justify a finding that there was or was not concealment, within the meaning of said policy.

The judgment is affirmed.

All concur.