text:
    T. FRANK JONES, Appellant, v. HUBBARD et al.
    Division Two,
    January 31, 1906.
    1. ABSOLUTE DEED: Intended Mortgage: Necessary Allegations. In order that a petition, the purpose of which Is to have a conveyance absolute on its face declared to be a mortgage, may be held to state a cause of action, it must appear therefrom that there was a loan and that both parties so understood it at the time. The burden is upon plaintiff to show, by proper and necessary averments, that a deed absolute on its face, whether a “pretended deed” or otherwise, was a mortgage only.
    2. -: -: Existing Debt. The one sure test and essential requisite of a mortgage is the continued existence of a debt from the grantor to the grantee. If there is no debt the instrument can not be a mortgage.
    C. -: -: Cause of Action: Simple Averment. A mere naked averment that a deed absolute on its face was intended to be a mortgage, without any other averment, does not state a cause of action.
    4. -: -: Negatived By ftecital: Res Adjudicata: Decree of Federal Court. An allegation in a petition that a certain deed, absolute on its face, was intended to be and was in fact a mortgage, is negatived by a further recital therein that by a decree of the Federal circuit court it was adjudged that the grantors by their deed conveyed to the grantee the entire fee-simple title free from any claim of the grantors, and that a concurrent agreement to reconvey was not a mortgage, but a mere option. That decree obtained in a court having jurisdiction of the parties and subject-matter was conclusive between the parties thereto and their privies, and could not and can not be gone behind for the purpose of showing a state of facts which might have been a defense to the action in which that judgment was rendered.
    5. -: -: -: -: Privies. A judgment creditor of the grantor in such conveyance, who purchases his interest at execution sale, after such judgment was rendered in the Federal court, is a privy with the grantor, although the purpose of the conveyance may have been to deceive and to cover up the real transaction between the grantor and grantee.
    6. Res Adjudicata: Federal Court: Judgment By Consent. A judgment by consent of a United States circuit court,' having jurisdiction of the parties and subject-matter, is binding on all parties thereto and their privies, and can not be attacked in a collateral proceeding.

      Appeal from Jackson Circuit Court. — Jas. E. • ■ Slovery Judge.
    Aitbirmed.

      Johnson & Lucas for appellant. ,
    (1) The transactions alleged to have occurred between Thomas H. Mastín and Julia Mastín and respondents in May, 1893, constituted under the circumstances alleged an equitable mortgage to respondents upon the real estate described in the petition.. 1 Jones on Mortgages (3 Ed.), sec. 248; Wilson v. Drumrite, 21 Mo. 325; Tibeau v. Tibeau, 22 Mo. 77; Cobb v. Day, 106 Mo. 278; Book v. .Beasly, 138 Mo. 455; McDonald v. Hoover, 142 Mo. 495; Bogk v. Gassert, 1491 U. S. 17; Garvin’s Admx., v. Vincent, 87 S. W. 804; Gillis v. Martin, 17 N. C. 470. (2) Appellant can question the validity of the transactions between respondents and Thomas H. Mastín, and has the right to redeem. R. S. 1899, see. 3398; Woodson v. Carson, 135 Mo. 532; Huffman v. Nixon, 152 Mo. 303; Reynolds v. Faust, 179 Mo. 28. (3) (a) The-judgment was collusive, and the parties who participated in the collusion can be deprived of the benefits of it, notwithstanding, it was in a Federal Court. Wonderly v. Lafayette Co., 150! Mo. 652; Marshall v. Holmes, 141 U. S. 589. (b) A fraudulent or collusive judgment can be set aside by a creditor of the defendant, and testimony outside the record is admissible to show the fraud or collusion. Black on Judgments, sec. 293; Mitchell v. Kintzer, 5 Pa. St. 216 '; Vose v. Morton, 4 Cush. 27; Callahan v. Griswold, 9 Mo-. 792; Smith v. Cuyler, 78 Ga. 654. (4) The decree of the United States Circuit Court and the repeated conveyances made in pursuance thereof to respondents were collusive, fraudulent and void as to appellant. Snell v. Harrison, 104 Mo. 188; Bank v. Buck, 123 Mo. 154; State, v. O’Neill, 151 Mo. 84; Bank v. Gailey, 177 Mo. 203. .(5) All' doubts in reference to the nature of the transaction should be resolved in favor of the proposition that it is a>- mortgage. 1 Jones on Mortgages (3 Ed.), sec. 279. Appellant is proposing to do equity, and should be permitted to prove the facts alleged in his petition. Respondents will get their pound of flesh, when he is permitted to redeem.

      Pratt, Dana é Black for respondents.
    (1) There was no averment of the existence of a debt, which is an essential to a mortgage. 1 Jones on Mortgages (6 Ed.), sec. 260; Bobb v. Wolff, 148 Mo. 344; Bailey v. Trust Co.-, 87 S. W. 1005; Wallace v. Johnston, 129 U. S. 58; New Orleans Ass’n v. Adams, 109 U. S. 211; Carroll v. Tomlinson, 192 111. 398. There being no averment of a debt, there was no averment that any obligation secured by the alleged mortgage-was payable, which was essential to the exercise of the right plaintiff claims, if it existed. Gancert v. Henry, 98 Cal. 281. (2) Even if the original transaction had constituted a mortgage and the petition had contained sufficient averments with regard thereto, still, this appellant, under the other allegations of the petition, was not entitled to redeem. Plaintiff claimed the right to redeem as a purchaser at an execution sale of T. P. Mastín’s interest in certain property. He stood in privity of claim and estate with Mastín and had no other or different rights from the latter. He acquired by the sheriff’s deed only such interest as the execution •debtor had in the land at the time the judgment was ■rendered on which the execution was issued. Mann v. Best, 62 Mo. 491; White v. Davis, 50 Mo-. 334; Throckmartin v. Pence, 121 Mo. 50; 17 Ain. and Eng. Ency. Law (2. Ed.), p. 1010. The averments of the petition show that Mastín’s interest' in the land had been conveyed by him and adjudicated out of him by a decree of the United States Circuit Court before the plaintiff éven claims to have become Mastín’s creditor. Mastín had not, at the time of the judgment against him, any right to redeem, nor had he ever such right. (3) The averments of fact in the petition with reference to the two instruments of May, 1893, claimed to have been a mortgage, shows that they were not a mortgage so far as Mastín was concerned and he could never have maintained such claim. There were no averments of fact, though there were of petitioner’s conclusions, indicating that they had any characteristics of a mortgage or were ever thought of as a mortgage. (4) Even if Mastín had a mortgagor’s interest in the property after the instruments of 1893 were delivered, he parted with it by his deed of 1894 to Ward, receiver, and in 1895 by joining with said receiver in a deed of the property to Hubbard and Morse, in conformity with a degree of the Federal court which appointed the receiver. 11 Am. and Eng. Ency. Law (2 Ed.), 392; Hazenritter v. Kirchhoffer, 79 Mo. 242; Thistle v. Buford, 50 Mo. 281; Roan v. Wynn, 93 Mo. 511. (5) Any possible claim'of Mastín’s or of anyone in privity with him, or of any of his creditors, of a right to redeem was settled adversely, as appears from the positive averments of the petition, by the decree of the United States Circuit Court of June 13, 1895. The petition shows that the court had jurisdiction of the parties and the subject-matter, does not aver any fraud or deceit with reference to obtaining or entering it, but plainly shows a judgment entered in the case, of which, as well as of the parties thereto, a court of general authority had jurisdiction, by which decree' the instruments of 1893 were adjudicated not to constitute a mortgage, but a mere option in favor of Mas-tin to purchase, and the title to the land therein was decreed to be vested in fee simple in Hubbard and Morse, free from any claim of the Mastins or their receiver. It is well settled that such a judgment cannot be attacked at all in any other court if the court rendering it had .jurisdiction of the parties; that it cannot be attacked collaterally as attempted here in any court under any circumstances. 11 Am. and Eng. Ency. Law (2 Ed.), 388; Foote v. Clark, 102 Mo. 394; Crispen v. Hannavan, 50 Mo. 418.; State ex rel. v. St. Louis, 145 Mo. 567; Yeoman v. Younger, 83 Mo. 424; Johnson v. Realty Co., 167 Mo. 339; Reed v. Yaughn, 15 Mo. 141; State ex rel. v. Rainey, 74 Mo. 233; 1 Black on Judgments, secs. 285, 245, 246, 251, 252; 2 Id., secs. 517, 518, 705, 729; Short v. Taylor, 137 Mo. 518; Morrill v. Morrill, 20 Ore. 96.

      Johnson & Lucas for appellant in reply.
    (1) If the conduct of Mastín and respondents had not been a fraud upon the rights of appellant and his assignor, then appellant might be considered in privity with Mastín, having purchased at execution sale, but appellant acquired at that sale the real interest of Mas-tin, as distinguished from that which was made to appear by the fraudulent acts of Mastín and respondents. (2) A recovery by appellant does not necessarily involve the setting aside of the judgments, decrees and orders of the United States Circuit Court set out in this petition, but will deprive the respondents as beneficiaries of the unconscionable advantage sought to be obtained thereby.
   GANTT, J.

— This suit was commenced in the circuit court of Jackson county, April 4,1902, by filing the following petition:

“Plaintiff says that on the 1st day of August, 1891, one Thomas H. Mastín was indebted to one Susán N. Jones in the sum of $6,500, as evidenced by a written agreement between them of that date, and on the 1st day of August, 1897, a settlement was had between them by which there was found due the said Susan N. Jones the sum of $7,500, for which sum the said Thomas H. Mastín executed and delivered to her his negotiable promissory note due three years from, that date and bearing •interest froln date at the rate of six per cent per annum; (that afterwards, for value received, the said Susan N. .¿Tones sold, indorsed, assigned and delivered the said -note to the plaintiff herein, and on the 16th day of June, 1900, plaintiff herein filed a suit on said note in the .circuit.court .of Jackson county, Missouri, by attachment .against the said Thomas H. Mastin, and on 'that date the: writ of attachment was levied on the following ..(along/withother) r.eal estate in Kansas City; Jackson county, Missouri, to-wit:
“Lots Seventeen to twenty-seven, inclusive, block one; lots one to nineteen, inclusive, and lots thirty-four ia-ud:thirty-five, block two; lots one to eight, inclusive; rfixldf lots1 twelve and thirteen, block three; lots ten to 'twenty-two, inclusive, block'four; lots one to eighteen, inclusive, -and the north ten feet of lot nineteen, and lots -twenty, to thirty-two, inclusive, in block twenty-five; lots .one and two; lots five to fourteen, inclusive, the north half‘-of lot twenty-three and lot twenty-four, block thir.tji'-tWb; the north thirty-eight and forty-hundredths ifeetuf lot fourteen,’and lots fifteen to twenty-four, inclusive,-' block thirty-three; lots one .to- nine, inclusive, -and lots eleven and twelve, block thirty-four; all in .Llyde.Park,.according to the plat thereof on file and of record in the recorder’s office, of said Jackson county. Also lots one to twenty-four, inclusive, and lots thirty-eighh to "forty-nine, inclusive; all'in Park Place,’ an addition'to the'.City, of Kansas- (now Kansas City) ,: as shown by the.plat thereof on file and of record in the ^echr^er’s office of said Jackson county.

Sii < /TThat on the 9th day of April, 1901, a judgment «waéigiven'.by'the circuit court of Jackson county, in •the Suit so instituted, for the sum of $7,900 i'n favor of Ule- plaintiff and against the said Thomas' p[. Mastín, »aftd on.the 16th day of May, an execution issued from •the'clerk’s office of said circuit court'upon the said -judgmefit, by virtue of which the'sheriff of Jackson ;cotmtyr levied upon all the right, title,, interest and estate of said Tliomas H. Mastin of, in and to the above described (along with other) real estate, and upon the 10th day of July, under the said judgment and execution, the said sheriff of Jackson county, at public sale held and conducted in accordance with the law, sold all the right title, interest and estate' of the said Thomas H. Mastin of, in and to the above described (along with other) real estate to the plaintiff herein for the sum of $500, and executed and delivered to the plaintiff a deed therefor, which said deed'was on the 13th day of July, 1901, filed for record in the office of the recorder of deeds of Jackson county.

Plaintiff further says that in the month of May, 1893, the said. Thomas H. .Mastin, jointly with Julia Mastin, executed and delivered to the defendants Hubbard and Morse a pretended deed, purporting to convey to them, for the consideration of $225,000, the above described (along with other) real estate, the said Thomas H. Mastin being the owner in fee simple of an undivided half-interest in said real estate, and on the samé date the said Hubbard arid Morse on one part, arid the said Thomas H. Mastin and Julia Mastin ori the other part, entered ifito a pretended agreement in writing which recites that the said Hubbard and Morse, bé» ing the owners of the property described in the said deed, gave to the said Thomas H. Mastin and Julia Mastin an option to buy said property within three years upon the payment of $225,000 with interest, and of an additional sum amounting to ten per cent upon that part of the payment made before one yeár from date, eighteen per cent upon that part of the payment made after one year and before two years from date, and twenty-five per cent on that part of the payment made after two years and before three years from date; that the said deed arid agreement were exécu'ted'at the same “time arid were parts of the same transac't'ioh ¡’(although for the purpose of deception, the deed wás'dated May 15,1893, and the agreement May 16, 1893,. and thé deed was recorded at once, while the agreement was withheld from record for more than a year) and were intended by the parties to be, and in fact and in law were nothing more than a secret and disguised mortgage to secure the’payment of certain sums of money furnished by the said Hubbard and Morse to the said Thomas H. Mastin and Julia Mastin; that the said deed was not intended, or understood to be, and was not, in fact or in law, an absolute or unconditional conveyance of said property; that the recital in said agreement that the said Hubbard and Morse were owners of the real estate was false and known by all the parties to be false and the pretended option given by them to the said Thomas H. Mastin and Julia Mastin to buy said property was a fiction devised for the purpose of carrying out the terms of the secret mortgage; that the whole scheme of the deed and agreement thus concealing and covering up the true state of the title and the real facts of the transaction, was cunningly devised by the said Hubbard and Morse to enable them to exact and receive unlawful and usurious interest upon the money furnished by them to the said Thomas H. Mastin and Julia Mastin, and to evade and defeat the usury laws of this State for such cases made and provided; that the pretended option to sell provided for the repayment to them not only the money loaned, with interest and all other proper charges, but an additional sum of ten per cent, eighteén per cent, or twenty-five per cent upon such amount (being from $25,000 to $50,000) according to the time of payment, and this additional sum or bonus was an unlawful and usurious charge and would have appeared as such if the true nature of the transaction between the parties had been shown in the form of an ordinary mortgage or deed of trust.

“Plaintiff further says that in the year 1894 the said Julia Mastin filed a bill of complaint in the United States Circuit Court for the Western Division of the Western District of Missouri, against the said Thomas H. Mastín, alleging among other things their joint ownership of the real estate hereinbefore described (although they had previously executed said pretended conveyance thereof to the said Hubbard and Morse) and asking among other things for an accounting and dissolution of the partnership existing between them, and that in pursuance of an order of .the said court to that effect the said Thomas H. Mastin and Julia Mastin, by their deed dated----day of ——— • — —, 1894, conveyed the said real estate to Hugh C. Ward, receiver, appointed such by the said court in that suit; that afterwards, upon the intervening petition of the said Hubbard and Morse filed in the last mentioned suit, and by agreement between them and the said Thomas H. Mastin, Julia Mastin and Hugh C. Ward, receiver, and without examination or intervention by the court, a decree was entered on June 13, 1895, defining their respective interests in the said real estate, and that the decree thus entered by agreement of the said parties, recites, first, that the agreement of May 16, 1893, above referred to, was not a mortgage but a mere option for the purchase of the property; second, that the entire fee-simple title to the property described is vested in the said Hubbard and Morse free from any claim of the said Thomas H. Mastin or Hugh C. Ward, receiver; and, third, that the said Hugh C. Ward, receiver, his successors or assigns, shall have the option to buy the said property from the said Hubbard and Morse by paying therefor $303,417 with five per cent interest thereon, upon certain conditions and terms therein s.et out'; and ordered said Thomas H. Mastin and Julia Mastin to make another deed of conveyance to said Hubbard and Morse, which was accordingly done.

“Plaintiff further says that the state of title and the relations between the parties remained the same under this deed and decree as under the former deed and agreement except in the following- particulars: first, the interest on the indebtedness was reduced from six per 'cent to five per cent; second, no provision was made for the continuance, after the date of the decree, of the unlawful and usurious interest or bonus consisting of a certain per cent (in addition to lawful interest and other proper charges) upon the amount paid, provided for in the first agreement; and, third, the principal amount of the indebtedness was increased by the addition of $54,871.90, being the amount of the unlawful or usurious interest or bonus provided for in the first agreement and'computed up to the date of the decree, which sum, as part of the principal indebtedness of $303,417, it was agreed must be paid with interest by the said Hugh C. Ward, receiver, Thomas H. Mastin and Julia Mastin before they were entitled to a conveyance from the said Hubbard and Morse.

“Plaintiff further says that under the provisions of this decree said Hugh C. Ward, receiver, paid to said Hubbard and Morse, at different times between the date of said decree and October 10, 1899, a very large sum in the aggregate, to be applied to the existing indebtedness, but the exact amount thereof plaintiff is' not able to state; that about the last-mentioned date the said United States Circuit Court entered a final decree in the said suit between Thomas H. Mastin and Julia Mastin, and thereupon ordered said Hugh C. Ward, receiver, to convey the above described (along with other) real estate, to the said Thomas H. Mastin and Julia Mastin subject to all legal, valid and subsisting incumbrances thereon (although by the terms of the decree of the same court entered by agreement as aforesaid the entire fee-simple title to said real estate was vested in the said Hubbard and Morse, free from any claim, right or interest in said Thomas H. Mastin, Julia Mastin, or Hugh C. Ward, receiver, and in addition thereto, the said Hugh C. Ward, receiver, as well as the said Thomas H. Mastin and Julia Mastin had been required to and by their joint deed had conveyed, all their interest in said real estate to the said Hubbard and Morse), and in compliance with such order the said Hugh C. Ward, receiver, by his deed dated February 5,1900, did convey the above described (along with other) real estate tq the said Julia Mastin and Thomas H. Mastin, jointly, thereby vesting in said Thomas H. Mastin an undivided half-interest in said real estate subject to all legal, valid and subsisting incumbrances.

“Plaintiff further says that the said Thomas H. Mastin, before and during the period of time covered by the various transactions and dealings hereinbefore set out between him and the said Hubbard and Morse, was indebted to plaintiff’s assignor, the said Susan N. Jones, in the manner and to the amount set out in the first clause of this petition; and that, being so indebted, the said Thomas H. Mastin, in law and good conscience, had no right to convey the title of real estate belonging to him, without consideration, to the said Hubbard and Morse, or any other persons, and had no right to put any incumbrances or lien thereon in favor of said Hubbard and Morse, or any other persons, except for, and to the extent of, an actual, valid and legal consideration therefor; and that the plaintiff, as the assignee of the indebtedness of the said Susan N. -Jones, is not bound nor in any way affected by the pretended, fictitious and collusive conveyances, agreements or decrees devised for the purpose of concealing the true state of the title and the real facts of the transactions between the said Thomas H. Mastin and the said Hubbard and Morse, but all the said pretended, fictitious and collusive conveyances, agreements and decrees were and are fraudulent and void as to the plaintiff, and that the plaintiff’s rights as the holder of such indebtedness could, and can, only be affected by the dealings between said parties in so far as they were actual and bona fide and supported by an actual and legal consideration, and that the plaintiff is only concerned in this action with the true facts and real nature of the dealings and transactions,of the said parties, and not with the false , and fraudulent appearance and character which they sought .to give them for the purpose of deceit and fraud; and that for the purpose of this suit, and in so far as plaintiff’s rights are affected, the deed of May 15, 1893, and the agreement of May 16, 1893, hereinbefore set out, were merely a mortgage to secure the repayment of certain sums of money furnished by said Hubbard and Morse to Thos. H. Mastín and Julia Mastín with legal interest thereon, and that the decree of the United States Circuit Court, entered by agreement of the said parties on June 13, 1895, as hereinbefore set out, was merely a renewal and extension of said mortgage with certain modifications as. to terms; that plaintiff is unable to state the exact amount of money furnished said Thomas H. Mastín and Julia Mastín by the said Hubmard and Morse, nor the exact amount of the repayments thereof made by the said Thomas H. Mastín, Julia Mastín and Hugh O. Ward, receiver, but alleges and charges the fact to be that, after the deduction of the unlawful and usurious charges provided for in the agreement on May 16,1893, the remaining legal indebtedness for which defendants have a just lien upon said real estate has been largely, if not wholly, paid off and discharged; and that by reason of the sheriff’s deed conveying to plaintiff all the right, title; interest and claim of said Thomas H. Mastín in and to said real estate as set out in the first clause of the petition, plaintiff is the equitable owner of an undivided half-interest in and to said real estate, subject to the claim and lien of the defendants for the repayment of the balance, if any, of such legal indebtedness.

“Wherefore, in consideration of the premises, plaintiff prays the court to find and decree that as against the plaintiff the said deed of May 15, 1893, and agreement of May 16, 1893, and decree of the United States Circuit Court of June 13, 1895, as hereinbefore fully set out, merely constitute a mortgage to secure the repayment of certain sums of money furnished by defendants Hubbard and Morse to the said Thomas H. Mastín and Julia Mastín, and that said mortgage has not been foreclosed and is still subsisting, arid that an accounting shall be had between the plaintiff and defendants to determine the amount of the sums so furnished and of any other legal indebtedness, if any, to secure the repayment of which the said deed was made and the said decree was entered, and also to determine the amounts and dates of the various payments made thereon by the said 'Thomas H. Mastín, Julia Mastín and Hugh C. "Ward, receiver, and to determine and state the balance, if any, of the legal indebtedness now remaining, after all proper credits have been made, which is a just lien upon the said real estate, and that the plaintiff may be permitted to redeem the undivided one-half interest of said real estate from said lien upon the payment of otie-half the amount of such balance, if any, remaining unpaid, and that the defendants be required upon such payment by proper instruments of record to release the undivided one-half interest of said real estate from the lien of the various deeds, agreements and decrees hereinbefore set out, and that the plaintiff shall have such other and -further relief as to the court may seem meet and proper under the circumstances of the case.”

The defendants interposed the following demurrer:

“Come now Charles J. Hubbard and Charles F. Morse, the defendants above named, and demur to the petition of the plaintiff filed herein, and for ground for such demurrer state:
“1. The plaintiff has not legal capacity to sue in the manner and form set forth in his petition.
1‘2. Said petition does not state facts sufficient to , constitute a cause of action in favor of the plaintiff and against these defendants.
“Wherefore, defendants ask for judgment herein in their favor and for costs.”

Saturday,’ March 14, 1903, the court rendered the following judgment:

“The demurrer of defendants to the'petition of the plaintiff in this cause having been heretofore sustained,to-wit, on February 21, 1903, and during the present term of this court, and plaintiff having failed and refused to amend said petition and to plead further, it is adjudged by the court that the plaintiff take nothing by his writ in this cause and that defendants go hence without day and recover of the plaintiff their costs in this behalf expended and have thereof execution.”

, Thereupon plaintiff in due form appealed to this court. ■

I. Conceding the truth of every fact well pleaded, does the foregoing petition state a cau'se of action*?

Stripped of the technical adornment in which they are clothed, the following facts stand confessed by the demurrer: Thomas H. Mastin on the first day of August, 1891, was indebted to Susan N. Jones to the amount of $6,500. On May 15, 1893, Thomas H. Mas-tin and Julia Mastin conveyed by deed the real estate described in the petition to the defendants, Hubbard and Morse, for the sum of $225,000, and said deed was promptly recorded. On the same day Hubbard and Morse gave Thomas H. Mastin and Julia Mastin an option for three years to purchase said real estate by paying $225,000 therefor, and if they availed themselves of said option in one year to pay an additional sum, amounting to ten per cent on said sum; if in two years, an additional sum, amounting to eighteen per cent on said amount; and if they availed themselves of said option after two years and within three years, an additional sum of twenty-five per cent on said amount. Afterwards in 1894, a suit was brought in the United States Circuit Court for the Western District of Missouri by Julia Mastin against Thomas H. Mastin to dissolve an alleged partnership between said Julia- - and Thomas Mastin, in which Julia Mastin alleged a joint ownership of the real estate conveyed as above stated by said Jnlia and Thomas Mastin to Hubbard and Morse, and in said suit, Hugh C. Ward was appointed receiver, and by order of said court, the said Julia and Thomas Mastin conveyed said real estate to said receiver. Thereupon Hubbard and Morse intervened in said suit in the Federal court, and upon a hearing of said intervening petition, it was adjudged and decreed on June 13, 1895, that the option agreement of May 16, 1893, “was not a mortgage, hut was a mere option for the purchase of said property, ’ ’ and that ‘ £ the entire fee simple thereto was vested in Hubbard and Morse free from any claims of the said Mastins, or said receiver,” and that the “receiver, his successors or assigns should have the option to buy said property from said Hubbard and Morse on certain terms and conditions therein set out, ’ ’ and further ‘£ ordered said Mastins and said receiver to make a deed of said property to Hubbard and Morse [the defendants herein], which was done.”

It further appears that on August 1, 1897, Thomas H. Mastin executed his note to Susan N. Jones for $7,500, in settlement of his indebtedness to her, payable three years after date, and afterwards Susan N. Jones assigned said note to plaintiff T. A. Frank Jones, and thereafter plaintiff brought suit on said note and recovered judgment against Thomas Mastin in the circuit court of Jackson county, on April 9,1901, and execution issued thereon, and at a sheriff’s sale thereunder plaintiff became the purchaser of all the interest of Thomas H. Mastin in said real estate for $500, and received a deed therefor. It also appears that after the decree in the United States Circuit Court, the receiver, Ward, under the provisions of said decree, paid Hubbard and Morse a large sum in the aggregate, the amount whereof plaintiff was not able to state. Afterwards a final decree was entered in the United States Circuit Court, and Ward, the receiver, was ordered to reconvey the above-described real estate to Julia and Thomas Mas-tin subject to all valid, legal and subsisting incumbrances thereon, and said receiver on February 5, 1900, did so convey said real estate.

In view of the foregoing facts, plaintiff insists that the result was that defendants Hubbard and Morse merely have a mortgage on said real estate, and plaintiff, as the purchaser of Thomas H. Mastín’s interest, has become the owner of an undivided one-half interest in and to said real estate, subject to defendants’ claim to repayment of the alleged mortgage debt — and he prays that the deed of May 15, 1893, from Julia and Thomas H. Mastín to Hubbard and Morse and the decree of the United States Circuit Court be decreed to constitute a mortgage to secure the payment of certain sums of money furnished by defendants to Thomas H. Mastín and Julia Mastín, and that said mortgage has not been foreclosed, and for an accounting of. the amounts paid by said Mastins and Ward, as receiver, and to allow plaintiff to redeem the undivided one-half interest of Thomas H. Mastín from the lien of said mortgage. It is perfectly apparent that if plaintiff had any standing whatever in a court of equity it is as the purchaser by sheriff’s deed of any interest Thomas H. Mastín had in said real estate.

He acquired only such interest as Thomas H. Mastín had in the lands at the date of the judgment on which the execution was based. [Mann v. Best, 62 Mo. 491.]

The effect of our recording acts upon the above statement of the law is not involved in the facts in this case. The substratum of the whole petition is that the deed from Julia Mastín and Thomas H. Mastín to defendants Hubbard and Morse of May 15, 1893, and the decree of the circuit court of the United States for the Western District of Missouri, constitute only a mortgage.

No one at this day will question that a deed, absolute on its face, may on a proper showing be decreed to be merely a mortgage, but when a pleader, as in this case, avers facts which show an absolute conveyance, if he insists it was a mere mortgage the obligation rests upon him to allege the additional facts which it is necessary to prove to show that the deed was in truth only intended as a mortgage.

Facts which are necessary to be shown to convert a deed absolute into a mortgage must be alleged in order to be proven. Among these essential averments, it should appear there was a loan and that both parties so understood it at the time of the execution of the deed. It is not sufficient that one of the parties to an instrument of conveyance, absolute in its terms, intended it only as a mortgage. Nowhere in this bill is there any allegation that Julia and Thomas H. Mastin had borrowed$225,000of Hubbard and Morse or any other sum, and the same was still a subsisting debt. The nearest approach to such an averment is the statement that “the deed and the option were intended by-the parties to be and in fact and in law were nothing more than a secret and disguised mortgage to secure the payment of certain sums of money furnished by the said Hubbard and Morse.”

But prior to this it was alleged that in May, 1893, Thomas H. Mastin and Julia Mastin jointly executed and delivered to defendants Hubbard and Morse, a pretended deed of conveyance purporting to convey to them for $225,000 the said real estate. It is true, counsel denominated this “a pretended deed,” but a pretended deed is a deed apparently or prima facie valid, and having pleaded the execution and the delivery of such a deed, the burden was on plaintiff by proper and necessary averments, to show that it was a mortgage only. [Bowman v. Ash, 143 Ill. l. c. 667,]

None of the usual concomitants of a mortgage, to-wit, a loan; an obligation on the part of the grantee to pay; a promise to allow the grantee to redeem; the disproportionate value of the land to the consideration named'in the deed, appear in the petition. Again and again it has been ruled that the one sure test and essential requisite of a mortgage has ever been the continued existence of a debt from the grantor to the grantee in the deed. If there is no debt the instrument cannot be a mortgage, whatever else it may be. [Bobb v. Wolff, 148 Mo. 344.]

In Bailey v. St. Louis Union Trust Company, 188 Mo. l. c. 492, it was pertinently said: “If this absolute deed is a mortgage it is not so because of anything contained in it or in the agreement, but because of something outside of both by which the natural force and effect of these instruments must be controlled and varied. There is but one thing that can be shown under all the authorities that could have that effect, and that is that the deed, though absolute in form, was in fact given as a mere security. ’ ’

The petition does not allege that the Mastins owed Hubbard and Morse on or by virtue of .the above mentioned deed and agreement, or that Hubbard and Morse had any recourse by reason of those instruments against the Mastins, or that said debt was due and payable. It cannot be that, when an absolute conveyance is shown, the grantor may by a naked averment that it was intended merely as a mortgage, without any other averment, require the grantee to answer. There is not in this case even the pretense that there was a verbal agreement to hold said deed as a mortgage or security only. There is no allegation that Hubbard and Morse loaned the Mastins any sum, nor the date when such sum was to be repaid, nor that the Mastins agreed to pay any specific sum at any time on any account whatever, nor that they conveyed the property as security for such sum.

But independently of the foregoing considerations, the bill on its face negatives the claim that the Mastins or Hubbard and. Morse intended the deed and option contract should be a mortgage, because it distinctly avers that by a decree of the United States Circuit Court for the Western District of Missouri, it was adjudged and decreed that the Mastins by their deed conveyed to Hubbard and Morse the entire fee simple in said real estate free from any claim of said Mastins or Hugh C. Ward, receiver, and that the agreement to re-convey was not a mortgage but a mere option. What effect, then, is to be ascribed to the averment that this decree of a court of competent jurisdiction did not in any manner affect the relation of these parties and that they remained the same after the entry of the decree as before?

If true, it will prove a very effective and simple device for setting aside decrees rendered by courts having jurisdiction both of the subject-matter and the parties. Heretofore it has been the settled law of this State that a judgment obtained in a court having jurisdiction of the parties and the subject-matter in controversy was conclusive between the parties thereto and their privies, and could not be gone behind for the purpose of showing a state of facts which might have been a defence to the action in which such judgment was rendered. [Johnson v. Realty Co., 167 Mo. l. c. 339 et seq.]

That the plaintiff is a privy in estate with Thomas H. Mastin, to whose interest, if any, he succeeded by his sheriff’s deed, is not open to discussion. [Foote v. Clark, 102 Mo. 394; Greenleaf, Ev., sec. 189; Henry v. Woods, 77 Mo. 280; State ex rel. v. St. Louis, 145 Mo. 567.]

In Reed v. Vaughan, 15 Mo. 141, Judge Scott, speaking for this court, said: “The courts of the United States, though possessing limited, juridiction, yet, in the intendment of law, stand upon the same footing as courts of record of general jurisdiction. All the presumptions which are indulged in favor of superior tribunals of general jurisdiction are equally extended to the courts of the United States. In pleading a judgment or decree of one of those courts, there is no more necessity for showing the facts which confer jurisdiction than in a plea of judgment of the highest tribunal known to the law.” [State ex rel. v. Rainey, 74 Mo. 233.]

Something is said about this decree having been by consent, but this does not in the least affect its binding force. [Short v. Taylor, 137 Mo. 517.]

Indeed, it is not to be wondered at that when Hubbard and Morse discovered that Mrs. Mastin had included their property in her suit against Thomas H. Mastin, they promptly intervened to rid their property of the cloud thus attempted to be placed upon it and that when Mrs. Julia Mastin and Thomas H. Mastin and the receiver, Hugh C. Ward, were confronted with the absolute deed and the option contract, they recognized that they had nothing but an option and that the court with their consent so adjudged. No other conclusion could have been reached in the premises. That judgment cannot be assailed in this collateral way. The plaintiff, standing in the shoes of Thomas H. Mastin, cannot ask this court to disregard the decree of the United States Circuit Court, and nullify it by construing it to-mean the opposite of what the court explicitly decided.

We might extend this opinion to much greater length in showing that there was no mortgage and nothing from which to redeem, and that whatever the facts, both the Mastins and the receiver and Hubbard and Morse were precluded by the decree of the United States Circuit Court from alleging that the deed from Julia Mas-tin and Thomas H. Mastin to Hubbard and Morse to the lands in suit was a mortgage, or that the contemporary agreement was anything more than a mere option to purchase long since expired, and that plaintiff being a privy in estaté with Thomas H. Mastin, was equally bound by that decree, and that he acquired no-title to the lands in suit by his sheriff’s deed of Thomas H. Mastin’s interest; but we have said enough to indicate the grounds of our opinion that the demurrer was properly sustained, and the judgment of the circuit court is therefore affirmed.

Burgess, P. J., and Fox, J., concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    REED et al., Appellants, v. SPERRY et al.
    Division Two,
    January 31, 1906.
    1. MARRIED WOMEN: Separate Estate: Appropriation by Husband: Trust Estate. Land inherited by a married woman in 1880 was her separate estate, and so remained until sold by her, and the proceeds arising from such sale remained her separate property until, by her assent in writing, they were reduced to the possession of her husband. And if, without such written assent, he invested the proceeds in land and took the title in his own name, he held such title during her life in trust for her, and after her death in trust for her children or heirs at law.
    2. -: -: -: -: Proof Necessary to Establish Trust. To establish such trust, it devolves on her children or heirs, after her death, to show by clear and convincing testimony, not only that the proceeds of the sale of her lands were reduced to the possession of the husband, hut that they were invested by him in the land in which the resulting trust is sought to he established. And in this case it is held that the evidence adduced to establish these facts, falls far short of the cogent and convincing character which the law requires.
    Appeal from Daviess Circuit Court. — Hon. J. W. Alexander, Judge.
    Affirmed.

      Hewitt & Hewitt and James T. Blair for appellants.
    (1) In this cause we have to deal with the most sacred of confidential relations, those between husband and wife. “It has always been found necessary to examine zealously into the transactions whereby the husband gets tbe advantage of the wife.” “The doctrine to be examined arises from the very conception and existence of a fiduciary relation. While equity does not deny the possibility of valid transactions between husband and wife, yet every fiduciary relation implies a condition of superiority held by the one over the other in every transaction between them by which the superior party obtains a possible benefit.” Witbeck v. Wit-beck, 25 Mich. 439; Pomeroy, Eq., sec. 956. (2) Under the statutes concerning married women the money and securities received by the husband from the sale of the wife’s land, inherited from her mother, became her separate property and remained such unless reduced by the* husband to his possession by the assent of his wife in writing. Laws 1875, p. 61; Secs. 3295, 3296, R. S. 1899. (3) The investment by the husband of money from the proceeds of the sale of the wife’s land inherited from her mother, Elizabeth Burton’s estate, in other lands and taking the title in his own name, constitutes him a trustee of an implied or resulting trust, and he held the legal title only for the benefit of the wife and her heirs. Broughton v. Brand, 94 Mo. 169; Seay v. Hesse, 123 Mo. 450; Brown v. McKean, 82 Mo. 598; Baumgartner v. Uuessfield, 38 Mo. 37; Paul v. Chouteau, 14 Mo. 580; Stevenson v. Smith, 88 S. W. 86; Crawford v. Jones, 163 Mo. 577; Scrutchfield v. Sauter, 119 Mo. 615. (4) It will appear from a casual reading of the testimony in this cause that the rule which obtains in cases like this that the evidence should be something “more than a preponderance,” i. e., it should be of a “most convincing character;” “all but conclusive,” “beyond a reasonable doubt;” has been fully met. Crawford v. Jones, 163 Mo. 583; Prewitt v. Prewitt, 87 S. W. 1003; McMurray v. McMurray, 180 Mo. 533. (5) The relation of Sperry to his wife was of a fiduciary character, and that fact lightens the burden of plaintiffs. Shaw v. Shaw, 86 Mo. 597. The ownership of the money is the important feature in cases of this character, and we take it that the, ownership was fully established in Miriam Sperry, Samuel’s wife. Shaw v. Shaw, supra; Johnston v. Johnston, 173 Mo. 101; Baumgartner v. Guess-field, 38 Mo. 41; Depas v. Mays, 11 Mo. 314.

      Eubbell Bros, and Earber S Knight for respondents.
    (1) Plaintiff’s evidence failed to measure up to the standard required by law. Burdett v. May, 100 Mo. 13; Crawford v. Jones, 163 Mo. 583; Curd v. Brown, 148 Mo. 92; Brinkman v. Sunken, 174 Mo. 715; Yiers v. Yiers, 175 Mo. 453. (2) The Supreme Court will ‘defer to the decision of the chancellor below, on questions of fact. Bowen v. McKean, 82 Mo. 594; Mathias v. .0 ’Neil, 94 Mo. 520; New England Loan & Trust Co. v. Browne, 177 Mo. 423; Shanklin v. McCracken, 151 Mo. 594; Mining Co. v. Mining Co., 106 Mo. App. 71; Gard v. Arnold, 157 Mo. 545; Cole v. Mueller, 187 Mo. 638.
   BURGESS, P. J.

— This is an action, begun by plaintiffs against the defendants in the circuit court of Daviess county, the object and purpose of which is to have the title to one hundred and twenty acres of land, described in the petition, the legal title to which is now in defendant Samuel Sperry, declared to he held by him in Irust for the plaintiffs.

The petition, in substance, states that the plaintiffs, Alice Reed, Lelia Hill and Forest Sperry, and the defendants, William Sperry, Nearest Sperry and Ruby Sperry, are the only children of the defendant Samuel Sperry and his wife, Miriam Sperry, now deceased; that defendants William, Nearest and Ruby Sperry are necessary parties to a complete determination of the questions involved in this controversy, and they are made parties defendant because they refused to join as plaintiffs herein; that the said Miriam, wife of the said Samuel Sperry and the mother of the other parties to this suit, died about the 20th day of September, 1887; that prior to her death she inherited from her mother and, by reason of such inheritance, came into the possession of valuable real estate-, to-wit: the northwest half of the northwest quarter of section 14, and thirteen acres out of the southeast quarter of the southwest quarter of section 11, all in township- 60, range 29, situate, lying and being in Daviess county, Missouri. That thereafter, to-wit, on the 27th day of July, 1880, the said Miriam and her husband, Samuel Sperry, conveyed by warranty deed the- said thirteen acres of land to one John Burton for and in consideration of the sum of $216.66;'that on the 7th day of November, 1881, she again joined with her said husband in a warranty deed whereby she conveyed to one Lewis L. Walls, in consideration of the sum of $700, the said northwest quarter of the northwest quarter of section 14, township 60, range 29; that thereafter, to-wit, on the 14th day of March, 1883, the said defendant Samuel Sperry purchased from one David Roger, for and on behalf of his wife, the said Miriam, the following described lands, lying and being in Daviess county aforesaid, to-wit, the west half of the northwest quarter and the northwest quarter of the southwest quarter, all in section 7, township 60, range 29, and paid for said lands the money of plaintiffs’ mother, the said Miriam, and wrongfully, and without the knowledge or consent of plaintiffs’ said mother, took the .title to the aforesaid described lands so purchased from said Roger in his, the said Samuel’s own name.

The petition further alleges that the said defendant Samuel withheld the knowledge of the fact that the title to the lands purchased from Roger was taken in his (Samuel’s) name, and wrongfully neglected to advise said Miriam of said fact, but fraudulently concealed the same from her, and that she died without knowledge of said fact. The petition further alleges that plaintiffs first learned- of the facts therein stated less than one year prior to the filing of the petition. Plaintiffs further state that the title to the west half of the northwest quarter of section 7, township 60', range 29, aforesaid, is still vested, in said defendant Samuel Sperry, but that on the 6th day of June, 1896, he sold and conveyed to one Henry F. Elliott the northwest quarter of the southwest quarter of said section 7, township 60, range 29, for .which he received the sum of $1,000.

"Wherefore, the plaintiffs say, that by reason of the premises aforesaid, said defendant Samuel Sperry holds the title to the said west half of the northwest quarter of section 7, aforesaid, in trust for them and that he has wrongfully converted to his own use the said $1,000; that before the commencement of the suit they demanded of the said Samuel Sperrythat he convey to them their interest in the said west half of the northwest quarter of section 7 aforesaid, and that he pay to them their portion and share of the said sum of $1,000 received from the said Henry F. Elliott, as the purchase price and consideration received for the said lands sold and conveyed to him, but that said defendant Samuel Sperry refused to do so or to accede to said demand.

Wherefore, the plaintiffs pray the court to declare the title to the lands aforesaid, so vested in the said defendant Samuel, be held by him in trust for plaintiffs; that said title be divested out of the said defendant Samuel and vested in the plaintiffs, and that he be required to pay the plaintiffs their share of the said-sum of $1,000, with interest from the 6th day of June, 1896, and for all other proper relief.

Defendants, by leave of court, filed an amended answer in which they deny each and every allegation in the petition contained. Further answering, they allege that there is a defect of parties plaintiff, and that the cause of action or ground of relief set up in plaintiffs’ petition is an entirety and cannot be subdivided. Further answering, they allege, in substance, that any ■cause of action or ground of relief set forth, hy plaintiffs is barred hy the five-year Statute of Limitations, and accrued more than five years next before the commencement of this suit; that any cause of action or ground of relief set forth in the petition accrued more than ten years prior to the commencement of this suit; that any cause of action or ground of relief mentioned in said petition accrued to Miriam Sperry in her lifetime, and that plaintiffs failed to sue within three years after her death; that plaintiffs failed to sue within three years after becoming twenty-one years of age.

Plaintiffs filed a reply to the answer which in effect denies all allegations as to the new matter therein contained.

Mrs. Miriam Sperry’s mother, Eliza Burton, died the owner of a large body of land in Daviess county, which was, on the 14th day of June, 1880, duly partitioned among her heirs, and said Miriam was allotted fifty-three acres thereof as her share in said lands. Plaintiffs claim that on the 21st day of July, 1880; she and her husband, the said Samuel Sperry, sold and conveyed the said thirteen-acre tract to John Burton, her brother, for $216.66, and on the 7th day of November, 1881, she and her said husband sold and conveyed to one Lewis L. Walls the remaining forty acres, for the sum of seven hundred dollars, two hundred dollars of which was paid in cash, and to secure the remaining five hundred dollars of the purchase price Walls executed to Samuel Sperry four promissory notes which were secured by a deed of trust on said forty-acre tract. In the year 1883 this trust deed was released by said Samuel Sperry. On the 14th day of March, 1883, defendant, said Samuel Sperry, purchased from David Koger, for the consideration of $1,250, as recited in the deed of that date by Koger and wife to said Sperry, three forty-acre tracts, or the one hundred and twenty acres of land involved in this litigation. This deed was duly recorded in the recorder’s office of Daviess county on the 10th day of May, 1883.

On the 20th day of September, 1887, Mrs. Sperry died, leaving surviving her her husband and their six children, all of whom are parties, either as plaintiffs or defendants, to this suit. Alice, who is the eldest, was then about seventeen years of age; Lelia about ten, mnd Forest, the youngest, about seven years of age.

Under the statute of this State concerning married 'women, which was in force at the time, the land inherited by Mrs. Sperry, from her .mother’s estate was her separate property, and so remained until sold by her and her husband, and then the proceeds arising from such sale remained her separate property until, by her assent in writing, reduced to the possession of her said husband. [Laws 1875, p. 61; secs. 3295, 3296, R. S. 1879.] And if he invested the proceeds arising from such sales in the three forty-acre tracts in question, and took the title in his own name, he held said title during her life, in trust for her, and at her death in trust for her children and heirs at law. [Scrutchfield v. Sauter, 119 Mo. 615; Crawford v. Jones, 163 Mo. 577.] But in order to establish such trust it devolved upon plaintiffs to show by clear and convincing testimony, not only that the proceeds of the sales of the land were reduced to the possession of the husband, but that they were invested by him in the land in which the resulting trust is sought to be established, and constituted all or part of the purchase price thereof. Or, as said in Burdett v. May, 100 Mo. l. c. 16, “The rule which prevails in this State, the general rule elsewhere upon the subject of resulting trusts, requires that in order to prove such a trust it must be established by testimony so.clear, strong and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust. This is the substance and effect of the language employed by the authorities, and by this court in numerous instances.” [Curd v. Brown, 148 Mo. 82.] The same question was before the court again in the case of Crawford v. Jones, 163 Mo. l. c. 583, in which it is said: “We agree with all that the learned counsel for appellant in his brief says about the necessity of requiring clear and cogent proof, carrying conviction beyond a reasonable doubt, in order to establish a resulting trust of this character. ’ ’ [Brinkman v. Sunken, 174 Mo. 709; Johnson v. Quarles, 46 Mo. 423; Adams v. Burns, 96 Mo. 361; Allen v. Logan, 96 Mo. 591; Burdett v. May, 100 Mo. 13; King v. Isley, 116 Mo. 155; McFarland v. LaForce, 119 Mo. 585; Plumb v. Cooper, 121 Mo. 668.]

Taking the rule announced by these adjudications, which is the general if not universal doctrine upon the subject, for our guidance, is the evidence adduced by plaintiffs of such a conclusive and convincing character as seems to be necessary to establish a resulting trust in favor of plaintiffs in the land in'controversy? To make out their case, plaintiffs introduced as a witness David Koger, the person from whom defendant Samuel Sperry purchased the land in question, who testified that Sperry told him it was with his wife’s money he was paying for the land. This alleged statement by Sperry must have been made in March, 1883, as it was on March 14th of that year that the deed to the land was made by Koger to him.

A Mrs. McCully, another witness for plaintiffs, testified that Samuel Sperry told her at her house, about twelve years before the trial of the suit, that he got eight hundred dollars from his wife and that he put it in that land he got of Mr. Koger. This is the evidence upon which plaintiffs chiefly rely to support their case. The only money Mrs. Sperry had, which there is any evidence tending to show was applied towards purchasing the land in question, was that derived from the sales of the land inherited from her mother’s estate, which inheritance comprised fifty-three acres, or one thirteen-acre and one forty-acre tract.

There seems to have been some controversy among the heirs of Mrs. Bnrton as to Mrs. Sperry’s right to the thirteen-acre tract; and although she and her husband and her brother, David Burton, in July, 1880, joined in a deed to John Burton, another brother, conveying to him this thirteen acres, as well as eleven acres which . had been set off to David, for the consideration of $400, as expressed in the deed, $216 of which was Mrs. Sperry’s portion, John testified that he remembered the transaction of the thirteen acres being conveyed to him, but that he paid nothing for it either to Mrs. Sperry or Samuel Sperry; that he had nothing to pay them, and that this piece of land was conveyed to him in settling the estate.

Samuel and Miriam Sperry sold the forty acres to Lewis L. "Wall in June, 1881, for the sum of seven hundred dollars, two hundred of which was paid in cash, and to secure the payment of the balance Wall executed notes and a deed of trust to Sperry upon the land. Whether or not these notes were paid before April 22, 1885, does not appear. As we have stated, the land in question was bought by defendant Samuel Sperry from Roger on the 14th day of March, 1883, but there is no evidence that this $500 was paid before said land was paid for by Samuel Sperry, which it devolved upon plaintiffs to show, for if said $500 had not been received by Sperry, it could form no part of the purchase price of the lands conveyed to him by Roger.

With respect to the $200 paid at the time of the sale of the forty-acre tract to Walls, the record shows that Mrs. Sperry about that time invested $140 in a mare, two colts and a cow, and that she also bought her husband a watch, and thus invested approximately the $200 in personal property; but it would seem she always claimed the said watch as her own.

Upon the part of defendants the evidence tended to show that Samuel Sperry had ample means to pay for this land, and in the absence of testimony of a clear and co'gent character that the money of Mrs. Miriam Sperry, in whole or in part, was used by her husband, Samuel Sperry, in payment of the purchase price of said land, the plaintiffs have utterly failed to make out their case.

In Burdett v. May, supra, the court says: “The testimony in this cause, it will be observed, is made up for the most part of the verbal admissions of the party against whom the resulting trust is sought to be established. Touching the subject of such admissions and the weight to be given them, Greenleaf states: ‘The evidence consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say.’ [1 Greenl. Ev., sec. 200.]”

In cases of this character we usually defer to the finding of the chancellor who heard the evidence and observed the demeanor of the witnesses while testifying; but aside from and independent of such finding, an examination of the facts disclosed by the record fails to convince us that the evidence adduced is of such a character as we deem necessary to establish a resulting trust, in favor of the plaintiffs, in the lands sought by them to be charged therewith.

The judgment is accordingly affirmed.

All concur.


author: FOX, J.

text:
    THE STATE v. GOEHLER, Appellant.
    Division Two,
    January 31, 1906.
    1. APPEAL: Time of Filing Bill: Motion in Arrest. The hill of exceptions, in order to be considered on appeal, must he filed during the term at which the motion for new trial was overruled or within such time as, by leave entered of record at that term, is given appellant in which to file his bill. A motion in arrest filed after the motion for new trial was overruled and continued to the next term and then overruled, did not give appellant the right to file his bill of exceptions during the subsequent term. His bill was due at the term the motion for new trial was overruled, and it can be made a part of the record only by being filed during that term or within such time as is given, by order entered of record at that term, to file it after the adjournment of that term.
    2. -: -: -: Case Stated. Appellant was convicted at the October term, and within proper time filed his motion for a new trial, which was overruled at that term, but he did not at that term file a hill of exceptions or obtain leave to file it thereafter, hut he did thereafter at that term file his motion in arrest, and that motion was continued to the December term and then overruled, and thereupon he filed his hill of exeep. tions. Held, that the bill is no part of the record, because not filed in time.
    3. -: Office of Motion in Arrest. The office of a motion in arrest is to direct the attention of the court to errors apparent on the face of the record proper, and not to errors occuring during the progress of the trial.
    4. INFORMATION: Burglary: Ownership of Goods. It is not necessary that the information in a burglary case charge the ownership of the goods or merchandise kept or deposited in the house burglarized.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge.
    Affirmed.

      Jolm A. Porter for appellant.
    (1) .The information is defective in that is fails to allege the ownership of the goods in charging the burglary. 2 Bishop, Crim. Pro. (2 Ed.), sec. 129. (2) The information must contain an allegation of every fact which is legally essential to the punishment to be inflicted. 1 Bishop, Crim. Pro., sec. 81; State v. Hayward, 83 Mo. 299; State v. Buster, 90 Mo. 514.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) There is nothing before this court except the record proper. Defendant'was tried and convicted at the October term, and on November 4,1904. On November 7th defendant filed his motion for a new trial; this motion was overruled on November 25, 1904. On November 29, 1904, defendant filed his motion in arrest of judgment, and on December 3, 1904, said motion in arrest was continued till the next term of court. On December 5, 1904 (being at the December term, 1904), defendant’s motion in arrest was overruled, and he was granted an appeal. No bill of exceptions was filed at the October term, neither was any time given in which to file such a bill. This failure on the part of defendant deprives this court of the power to review the proceedings of the trial court. State v. Larew, 191 Mo. 197; State v. Miller, 189 Mo. 673; State v. Roderick, 70 Mo. 622; Building Ass ’n v. Refrigerator Co., 127 Mo. 501; Howes v. Holmes, 5 Mo. x\pp. 81. (2) The information, which was duly verified, is sufficient in form and substance. State v. Tandle, 166 Mo. 593; State v. Mc-Graw, 87 Mo. 164; Kelley’s Crim. Law, sec. 609; R. S. 1899, sec. 1881.
   FOX, J.

— This cause is here upon appeal by the defendant from a judgment of conviction of burglary in the second degree, in the circuit court of the city of St. Louis. The information, which was duly verified as provided by law, upon which this judgment rests, omitting formal parts, is as follows:

“W. Scott Hancock, assistant circuit attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows: That Charles Goehler and Albert Kessler on the twenty-third day of August in the year of our Lord, one thousand nine hundred and four, at the city of St. Louis aforesaid, into a certain dwelling-house and building of Mary Hesmann there situate and being, feloniously and burglariously, forcibly did break and enter, with intent then and there, and thereby feloniously and burglariously to steal, take and carry away certain goods, wares, merchandise, other valuable things and personal property in the said dwelling-house and building, then and there kept and deposited, against the peace and dignity of the State. ’ ’

This information was filed on the 8th of September, 1904. Defendant was granted a severance and was tried and convicted on the 4th of November, 1904, being the October term of the said court, and his punishment assessed at three years in the penitentiary. The record in this cause discloses that the defendant filed a motion for a new trial at once, which was overruled on November 25th. Defendant’s motion in arrest of judgment was then filed and on December 3rd the same was continued till the next term of court. At the next term of court (the December term), the motion in arrest was overruled. Judgment of sentence was theu duly entered of record in accordance with the verdict and from this judgment defendant prosecuted his appeal to this court. The record also discloses that no hill of exceptions was filed during the October term, at which defendant was convicted and at which term his motion for new trial was overruled; but upon the overruling of the motion in arrest of judgment at the December term, to wbicb. it had been continued from tbe October term, tbe bill of exceptions for tbe first time was filed.

OPINION.

It is manifest from tbis record that tbe action of tbe court during tbe progress of tbe trial has not been properly preserved by bill of exceptions, duly filed at tbe term of court when said trial was bad.

Tbe record plainly discloses that tbe defendant was tried and convicted at tbe October term, 1904, of tbe court, and that at tbe same term bis motion for new trial was filed and by tbe court overruled. In order to preserve tbe action of tbe court upon such motion and all other matters occurring during tbe progress of tbe trial at that term, it was absolutely essential to either tender and cause to be filed a bill of exceptions during that term, or obtain leave of tbe court, by order duly entered of record, to file tbe same at some subsequent time. In tbis cause tbe record shows that neither of these essential steps was taken.

Tbe filing of tbe motion in arrest of judgment at tbe October term, being tbe term at wbicb defendant was convicted, and tbe continuance of such motion in arrest to tbe December term, 1904, did not have the effect to carry tbe exceptions to tbe matters, indicated in tbe motion for new trial, over to tbe December term, and tbe filing of tbe bill of exceptions at tbe December term, undertaking to preserve tbe action of tbe court occurring at tbe October term, was wholly unauthorized and tbe matters therein' contained are not subject to review upon such unauthorized bill.

In view of tbe recent, thorough and exhaustive discussion of tbis proposition in State v. Larew, 191 Mo. l. c. 197, we deem it unnecessary to again review tbe authorities on tbe question in support of tbe conclusions reached. It was said in that case, wbicb upon tbe question now in hand, is identical with the one at bar, after fully reviewing all the authorities, that “it would seem too clear for argument, in view of the foregoing settled rules of practice, that if the defendant desired to have his exceptions taken to the action of the circuit court during the trial of said cause considered, it was incumbent upon him to save his exceptions to the overruling of his motion for new trial at the June term, 1904, and to tender his hill of exceptions containing all the matters to which he excepted at that term, and that the continuance of his motion in arrest, whose office is only to direct the attention of the court to errors apparent on the face of the record, did not have the effect to carry his exceptions to the matters in his motion for new trial over to the October term, and this being true, we must hold that in this state of the record there is nothing before us for review except the record proper.”

Upon the record proper, and that is all that is properly before us for consideration, the appellant challenges the sufficiency of the information. The contention of defendant upon this proposition is predicated solely upon the failure of the information to allege the ownership of the property charged to have been kept or deposited in the building in which it is charged the burglary was committed. Upon this question it is only necessary to state that under the well-settled rules of pleading in criminal cases, it was not essential to make this allegation. It will he observed that this information is limited to the charge of burglary in the second degree, and the defendant is not charged with the larceny of any of the goods kept and deposited in the building at the time of the commission of the burglary, hence the ownership of the goods deposited in the building was absolutely immaterial. The contention of appellant is nowhere more clearly or correctly answered than it was by this court in State v. Tyrrell, 98 Mo. 354. It was there said, in discussing the proposition now before us, that “inasmuch as the gravamen of the charge was the burglary, it was unnecessary to specify the ownership of the goods. This is well settled. Archbold, treating of the crime under discussion, says: ‘ The intent must appear to be to commit a felony in the dwelling-house; but if the intent alleged be to commit a larceny, it is not necessary to show whose goods they were; it is sufficient to state them to be “the goods and chattels in the: said dwelling-house then being.” ’ [2 Archb. p. 329.] To the same effect see Reg. v. Clarke, 1 Car. & K. 421; Reg. v. Lawes, 1 Car. & K. 62. An eminent authority states that ‘the common form of charging the intent is to say, for example, “with intent the goods and chattels of one (or the said) B. in the said dwelling-house then and there being feloniously, burglariously to steal, take and carry away.” ’ But he also says, that the words “of one B.” are unnecessary. [2 Bishop Crim. Proc., sec. 142.] And elsewhere he says that if the allegation is silent as to the ownership of the goods, as to which an intent to steal is charged, no ownership need be proved. [Ib. secs. 147,142; see, also, State v. Clarke, 42 Vt. 629; Wicks v. State, 44 Ala. 398; Jones v. State, 18 Fla. 889; Harris v. State, 61 Miss. 394; 1 Whart. Cr. Law (9 Ed.), sec. 820; Commonwealth v. McGorty, 114 Mass. 299.] ”

This court again, in State v. Turner, 106 Mo. l. c. 277, clearly announced the essential elements of the offense of burglary. It was there said, that ‘ ‘ the gravamen of the charge is the burglarious breaking of the calaboose. The specific objection in the motion to quash was that the indictment did not charge when the goods and wares were deposited and kept in the calaboose. The objection is not tenable; it is immaterial when they were placed there or by whom; the material question was, were the goods, wares and merchandise described in the indictment ‘ then and there, ’ at the time of the commission of the burglary, ’ kept and deposited in the calaboose, and was it the intention then of defendants to take, steal and carry them away?” These cases must be held decisive of this question.

An examination of the other parts of the record-proper discloses that the defendant waived formal arraignment and entered his plea of not guilty, and the trial proceeded in regular form. The impaneling of the jury, the return of the verdict and judgment in accordance therewith, are shown by the record to he regular in every particular.

There is nothing remaining to he done with this cause, except to announce the affirmance of the judgment, which is so ordered.

All concur.


text:
    JOHN F. MARTIN, Appellant, v. CASTLE, et al.
    Division Two,
    January 31, 1906.
    1. COTENANCY: Curtesy: Right To Sell Under Execution. The rights of cotenants are reciprocal, and one cotenant can not deal with the property to the prejudice of the others. But the heirs and distributees of a deceased wife are not cotenants of her husband who claims as tenant by the curtesy. They are ■remaindermen and he a life tenant, and during his life he is entitled to the exclusive possession. They, therefore, have a perfect right to buy his life estate in the lands, when sold under judgment and execution against him, whether he was the maker of or the surety for his wife on the notes upon which that judgment was founded.
    2. INSUFFICIENT PLEADING: Void Judgment: Collateral Attack: Lack of Jurisdiction and Service. A petition attacking a judgment as being invalid for lack of proper service and jurisdiction over the subject-matter should point out in what particulars the service was defective or wherein there was a lack of jurisdiction of the cause of action.
    3. -: -: -: -; — : This Case: Demurrer. The petition alleged that a judgment rendered by a justice of the peace was invalid for two reasons: first, because “the records and proceedings by which, said pretended judgment was procured nowhere show that the defendant (plaintiff herein) was ever served with process as required by law;” and, second, because “said justice had no jurisdiction of the subject-matter of the action.” Held, first, that the inference to be drawn from the first allegation is that the defendant was served with process, but not according to law as understood by the pleader; second, the petition should have pointed out in what particular the service was defective, or if there was no service at all it should have so charged; and, third, the same is true of the other allegation in reference to jurisdiction of the subject-matter: it does not allege why or wherein the justice lacked jurisdiction. Such a petition does not state a cause of action for setting aside a sale of the property under such judgment, and is subject to demurrer, nor does the demurrer admit that the judgment or sale thereunder was void.
    4. -: Demurrer: Admission. A demurrer admits only facts well pleaded.
    5. - Sale Under’Execution: Inadequacy of Price. An allegation that plaintiff had a life interest in land worth $8,000 which was incumbered by a mortgage for $1,900 and which was „ sold under execution for $106, states no sufficient reason for setting aside the sale.
    6. -: -: Fraud: Combination: Remaindermen. Allegations that the remaindermen combined to procure a note executed by the life tenant as surety for his deceased wife, and, for the purpose of oppressing him and compelling him to-pay such note, caused suit to be brought thereon, obtained judgment for a trivial amount and at the sale bought in the property for a sum greatly less than it was worth and then gave notice to the tenants to pay them the rent, do not charge such fraud as would justify a setting aside of the sale.
    7. -: Deed of Trust: Foreclosure Sale. A foreclosure sale under deed of trust passes the title; and an allegation that the land was sold for the purpose of enabling the purchasing remaindermen (who were not mortgagees) to defraud the plaintiff life tenant out of his life interest in lands covered by his and his wife’s deed of trust, does not state any sufficient cause for setting that sale aside.
    Appeal from Andrew Circuit Court.- — Eon. A. D. Bumes, Judge.
    Affirmed.

      Dickson & Dickson, W. G. Hiñe, Chas. C. Crow and L. J. Eastin for appellant.
    (1) The small notes upon which pretended judgments were rendered were in fact the obligations of Mary E. Martin. Plaintiff was but a surety. The estate of the deceased principal was solvent. The original holders who knew the facts would have presented them for payment. Defendants secured them, however, for the fraudulent purpose of using them to oppress the plaintiff, and take from him an interest which he owned in certain land, as well as to force him to pay a debt which should have been paid by their mother’s estate. (2) The judgments rendered upon them were void. The allegations of the petition must be taken as true, and the petition says they were void. If the judgments were void they should be set aside. With them should go the executions, levies and the sheriff’s deed. (3) Inadequacy of price, when so gross as to shock the moral sense and outrage the conscience, is a ground of itself for equitable interference. Davis v. McCann, 143 Mo. 172; Durfee v. Moran, 57 Mo. 374; Railroad v. Brown, 43 Mo. 295. The annual rental value of the 240 acres is alleged to be $500 — a little more than two dollars per acre. The life estate in this tract alone sold for about forty-four cents per acre — less than one-fourth the annual rental of the land. The whole interest is alleged to be worth $8,000. The $106 realized- is out of all reasonable proportion to the alleged value, and the court should have heard the evidence. (4) It is charged that the defendants sought to oppress plaintiff by taking away his power to pay interest on the debt secured by the deed of trust on the land, and that they succeeded in doing so, and that upon a default in the payment of interest, the deed of trust was foreclosed, defendants purchased and paid no money, but gave a new deed of trust to secure the same obligation plus interest and expenses. In equity it is the same debt and the plaintiff has offered to pay any sum which he is required to pay, and, under the facts of the case, the court should have ascertained the truth of the allegations and entered a decree adjusting the rights of the parties. In determining these rights the relation of the parties alone is an important factor. Plaintiff was life tenant, defendants remainder-men. The principal of the debt was a charge upon the whole estate. The annual interest was a charge against the life tenant to the extent of the income from the land, i Washburn, *96 and note 5; 7 De Gr. M. & Gr. 134; Tud. Gas. 60; Doane v. Doane, 46 Vt. 485; 4 Kent, *74, 75. The plaintiff was not compelled to pay interest unless he collected rent. The rule that requires the life tenant to pay interest and taxes is based upon the fact that he has the present use of the land. If, for any reason, the life tenant is compelled to expend more than the income of the land, the excess may be charged upon the remainder. 4 Kent, supra; Penhyrn v. Hughes, 5 Yes. 99; Kensington v. Bonseril, 7 H. L. C. 557; Isaac v. Wall, 6 Ch. D. 706; Holridge v. Grillispie, 2 Johns. Oh. 34; Whitney v. Salter, 36 Minn. 103. When the defendants took possession and collected the rents, they destroyed plaintiff ’s ability to pay, and the law relieved him of the obligation to do so. When they purchased at the foreclosure sale they took the title in trust and when the plaintiff offered to assume and pay all obligations resting upon him he should have been permitted to do so. Allen v. De Gfroodt, 105 Mo. 442; Aubuchon v. Aubuchon, 133 Mo. 260; Van Horne v. Fonda, 5 Johns. Oh. 406; Jones v. Stanton, 11 Mo. 433; Picot v. Page, 26 Mo. 398; Dillinger v. Kelly, 84 Mo. 561; Meads v. Hutchinson, 111 Mo. 629; Hinters v. Hinters, 114 Mo. 29; Cockrell v. Hutchinson, 135 Mo. 67; Yocum v. Zahner, 29 Atl. 778; Downing v. Hartshorn, 95 N. W. 801; 1 Wasburn, *96.

      Booker <& Williams, Elizur S. Castle and Vinton Pike for respondents.
    (1) There was no privity or fiduciary relation between plaintiff and defendants, even if defendants were remaindermen, which is not alleged. “No such confidential relations existed between the tenant for life and remaindermen as prevented the former from purchasing at the mortagee’s sale.” Meads v. Hutchinson, 111 Mo. 629. The sale by Owen, trustee, was of all the estate of plaintiff and wife. The purchasers took directly through the sale and deed of Owen, from the grantors in the deed of trust. The title of the heirs was not- sold any more than the title of heirs is sold at sale by an administrator. The rule applies to a mortgage foreclosure as well as to sale by an administrator. After the death of the mortgagor, his administrator is the only necessary defendant to a foreclosure suit. Riley’s Admr. v. McCord’s Admr., 21 Mo. 285; Perkins v. Woods, 27 Mo. 547; Tierney v. Spiva, 97 Mo. 101; Aubuchon v. Aubuchon, 133 Mo. 265. (2) Plaintiff by the deed to Owen waived or released his curtesy estate. Thornton v. Pigg., 24 Mo. 249; Lee v. Lindell, 22 Mo. 202; Bank v. Hageluken, 165 Mo. 443; Rice v. Sally, 176 Mo. 107; Beagles v. Beagles, 95 Mo. App. 338; Mason v. „ Johnson, 47 Md. 357; Winn v. Riley, 151 Mo. 66; Strong v. Clem, 12 Ind. 37; Hill v. Chambers, 30 Mich. 422; Clark v. People, 44 Mich. 309; Denny v. McCabe, 35 Ohio St. 580. Plaintiff admits the deed was made to Owen in the nature of a mortgage in trust to secure the note described and he further admits the deed was foreclosed by advertisement and sale as therein provided, and that a deed of trust made by the purchasers from Owen is a valid charge on the land, and prays that it be declared a first lien. This concedes that the whole title was put in Owen with such powers as would enable him to convey it and that he did convey it. (3) The petition charges that the sheriff made a deed to defendants in pursuance of execution sale upon the judgments obtained by Booher, Williams and Castle. This deed is conceded to be in legal form, and prima facie establishes the validity of the judgments, executions and sale recited therein. Carpenter v. King, 42 Mo. 219; Karnes v. Alexander, 92 Mo. 672.
   BURGESS, P. J.

— A second amended petition filed in this case is as follows:

“Plaintiff states that defendant Asa Roy Martin is a minor. Plaintiff further states that he was lawfully married to Mary E. Martin on the 30th day of April, 1884, in Delta county, Colorado, and thereafter continued to live with her as her husband until her death, which occurred oh the 5th day of March, 1895; that issue was born alive of said marriage; that at and prior to the date of her death, Mary E. Martin was seized of the following described real estate, to-wit, two hundred and fifty acres of land in Andrew county, Missouri. That prior to the death of Mary E. Martin she borrowed of one Mary A. Owen the sum of nineteen hundred dollars and made, executed and delivered to said Mary A. Owen her certain promissory note dated October 16,1892, by which she promised, for value received, to pay to said Mary A. Owen the sum of nineteen hundred dollars five years after date, with interest at the rate of seven per cent per annum from date, payable annually ; that plaintiff signed said note as surety; that on the same date, to-wit, October 16, 1892, said Mary E. Martin and this plaintiff, executed and delivered to one Herbert A. Owen, trustee, their certain deed of trust, in the nature of a mortgage, conveying the land heretofore described to said Herbert A. Owen, in trust to secure the payment of said note. Said deed of trust was duly filed for record on the 22nd day of November, 1892, and recorded in book 65 at page 515', in the office of the recorder of deeds of Andrew county, Missouri. Plaintiff further states that all the money received by said loan' was in fact received by Mary E. Martin and during her lifetime expended by her in permanently improving said real estate. That after the death of said Mary E. Martin, plaintiff paid the interest on said note as it accrued up to the----day of —---, 1896.
“Plaintiff further states that on or about the-day of-----, 1896, Charles P. Booher and Isaac R. Williams and E. S. Castle, commenced proceedings before J. R. Majors, a justice of the peace within and for Nodaway township, Andrew county, Missouri, against this plaintiff upon certain promissory notes which had been signed by him jointly with Mary E. Martin, and recovered judgment thereon against this plaintiff, although said notes were in fact the primary obligations of Mary E. Martin and the estate of Mary E. Martin was at the time solvent; that said notes were given by Mary E. Martin to secure money on her own account and all money so secured by said notes was in fact used by said Mary E. Martin;that said Booher, Williams and Castle, who recovered said judgment, were not the payees in said notes, and said notes were procured by the defendants herein and turned over to said parties without consideration for the purpose of oppressing this plaintiff and compelling him to pay said notes and thereby relieve the estate of Mary E. Martin, in which all of these defendants were directly and personally interested as heirs and distributees, from the payment of the same and for the purpose of further oppressing this plaintiff by causing to be sold under said judgments his interest in the real estate herein described; that thereafter these defendants caused execution to be issued on said judgments and caused the sheriff of Andrew county to levy or pretend to levy upon and seize all the right, title and interest of this plaintiff in and to all the real estate herein described, together with a like interest in other large quantities of land — the total interest of this plaintiff levied upon being in excess of eight thousand dollars in value, although said judgments were trivial in amount; that thereafter the said sheriff pretended to sell all the interest of this plaintiff in and to said land in a lump and at said pretended sale the entire interest of this plaintiff of the value aforesaid, brought one hundred and six dollars; that at said sale defendants herein, according to their original design and purpose to cheat and defraud this plaintiff, became the purchasers at the inadequate and insignificant price of one hundred and six dollars.
“Plaintiff further states thát said pretended judgments, the executions and levies thereon were all void and of no effect, for the reason that all of said judgments were rendered by the justice aforesaid without jurisdiction of the person of the defendant (who is plaintiff herein) or of the subject-matter of said actions ; that the records and proceedings by which said pretended judgments were procured, nowhere show that the defendant was ever served with process as required by law, or that the said justice had jurisdiction of the subject-matter of said causes of action.
“Plaintiff further states that notwithstanding the said judgments, executions, levies and sales were void, these defendants caused the sheriff aforesaid to execute and deliver a deed to them purporting to convey to them all of plaintiff’s title to said real estate, and caused said deed to be recorded in the office of the recorder of deeds of Andrew county, Missouri, in book--at page--; that thereafter said defendants proclaimed and declared themselves to be the owners of all of plaintiff’s interest in said land, and notified plaintiff’s tenants to whom he had rented said lands that they, the defendants, were the only persons entitled to collect the rents thereon; that by reason of the pretended levy, the sale of plaintiff’s interest in said real estate and the recording of said pretended deed and the false and fraudulent declarations of defendants aforesaid and the said notice given by defendants to plaintiff’s tenants, plaintiff was unable to realize anything for the rent of said lands for the year 1896.
‘ ‘ That, as defendants well knew, the only property which plaintiff owned at the time above mentioned, was his life estate in the land above described, together with a life estate in certain other real estate in Andrew county, Missouri, of which defendants had wrongfully taken possession and were and for a long time prior thereto had been collecting the profits thereon.
“That by reason of the wrongful acts of defendants as above set forth plaintiff was unable to realize enough out of the rents and profits of said lands to pay the interest on said note given to Mary A. Owen aforesaid which became due on the 16th day of October, 1896.
“That Charles P. Booher and I. E. Williams and E. S. Castle were the attorneys for defendants in all the matters herein set forth and complained of and acted in concert with the defendants according to a previously arranged scheme and conspiracy entered into by them for the object and purpose of so injuring the plaintiff in the possession of said real estate, so slandering his title thereto and injuring his credit, as to render it impossible for him to pay the interest as it became due on said note, thereby causing the deed of trust given to secure the same to be foreclosed and thereby themselves became the owner of plaintiff’s title thereto.
‘ ‘ That on the 18th day of January, 1897, the deed of trust aforesaid was foreclosed by advertisement and sale as therein provided, and the defendants herein became the purchasers at the price of two thousand one hundred dollars, and on the same day the trustee named in said deed of trust executed his trustee’s deed by which he conveyed to defendants herein all of plaintiff’s title to said real estate, which said deed was duly filed for record and recorded in book--at page —— in the office of the recorder of deeds of Andrew county, Missouri, and the defendants are now and since the last-mentioned date have been asserting title to said real estate under and by virtue of said trustee’s deed.
“Plaintiff states that afterwards, to-wit, on the • same day that said trustee’s deed was executed to defendants herein, said defendants made, executed and delivered to said Herbert A. Owen as trustee all the above-described real estate to secure the payment of a note made and executed by said defendants to Mary A'. Owen the beneficiary; the trustee and beneficiary in said last-named deed of trust being the same persons named in said first deed of trust. This said last deed of trust was made to secure the payment of the indebtedness secured by the first deed of trust and that no money actually passed in said last transaction between said parties, except an amount sufficient to pay costs and expenses of executing the trust in said first deed.
‘ ‘ That said land was sold under said first deed of trust for the sole purpose of defrauding this plaintiff, and the defendants herein intended to defraud plaintiff of his property.
“That said last deed of trust is a valid charge on said real estate.
“Plaintiff further states that he is ready and willing to pay defendants any sums of money that has been expended by them that is or would be a charge against him, and here offers and tenders to defendants any sum that the court may find to be due said defendants.
“That the defendants have had possession of all said real estate ever since the 1st day of March, 1897, and have collected the rents and profits on the greater portion thereof ever since the first day of March, 1896. That the reasonable rental value of said lands is and at all times herein mentioned was five hundred dollars per annum, and plaintiff’s interest therein is and at all time mentioned herein was of the value of six thousand dollars.
“Plaintiff further says he was willing at all times to pay the interest on said note as it became due and pay his proportion of said note when the same became dne and would have done so if the defendants had permitted him to enjoy the peaceable possession thereof.
“Wherefore plaintiff prays that the court will declare said last deed of trust to be a first lien on said reál estate as against both plaintiff and defendants; that defendants be required to pay the amount of said deed of trust or account to plaintiff for such.an amount as would be due from him were he not a surety and that an accounting be had and judgment for plaintiff against defendants for rents and profits and that said sheriff’s deed be set aside and for naught held; that plaintiff be restored to the possession of said premises and for such other and further relief as to the court may seem just and proper.”

Defendants demurred to said petition, on the fob lowing grounds:

“1. Because the amended petition herein does not state facts sufficient to constitute a cause of action. ;
“2. Because there is a defect of parties defendant.
“3. Because said amended petition shows on its face that plaintiff is not entitled to the relief sought. ’ ’

The demurrer was sustained, the petition dismissed, and judgment rendered in favor of defendants and against plaintiff for costs. From the judgment thus rendered plaintiff appeals.

The petition alleges that Booher, Williams and Cas* tie, who recovered judgment upon said notes, were not the payees in them, but that the notes were procured’by the defendants herein and turned over to said parties, without consideration, for the purpose of oppressing plaintiff and compelling him to pay them,’ and thereby relieve the estate of Mary E. Martin, in which all of these-defendants were directly and personally interested as heirs and distributees, and in this respect sufficiently shows that defendants, as such heirs, were, up to and at the time of the sale of the land under execution, remaindermen therein, subject to the life estate of plaintiff as tenant by the curtesy. -But they were not tenants in common with him in the land, for the very obvious reason that he, as tenant by the curtesy, was entitled to the exclusive possession and occupancy thereof, as well as to the rents, issues and profits arising therefrom, against everybody, during his life, and so claims in his petition. The rights of co-tenants are reciprocal, and no one of them will be permitted to deal with the property to the prejudice of his co-tenants. “Each is entitled, equally with all the others, to the entire possession of the whole property and of every part of it, and no one has the exclusive right to the whole or any particular part. Towards each other the co-tenants, by virtue of this unity of interest, sustain a sort of fiduciary relation, and the acts of any one in relation to the common estate, so far as beneficial thereto, will be presumed to be for, and will inure to, the benefit of all.” [17 Am. and Eng. Ency. Law (2 Ed.), 668, 669, and authorities cited.]

As the plaintiff and defendants were not tenants in common, the defendants had a perfect right to buy plaintiff’s life estate in the lands, and in so doing they acquired such interest, providing the judgments under which they acquired title were not void, or the sale at which they bought was not fraudulent or otherwise invalid.

The allegations of the petition respecting these judgments are substantially as follows: That the records and proceedings by which said pretended judgments were procured nowhere show that the defendant, who is plaintiff herein, was ever served with process as required by law, aud that said justice of the peace had not jurisdiction of the subject-matter of the action.

The first allegation is a mere conclusion of law, and the inference to be drawn from the allegation is that the defendant was served with process, but not according to law as understood by the pleader. How or in what partieular the service was defective, if such was the case, is not indicated, and it should have been pointed out in order that the court might determine whether it was fatal to the judgment. If the defendant was not served at all, the petition should have so alleged. The other allegation is equally bad, in that it does not allege why or wherein the justice lacked jurisdiction of the causes.

The demurrer only admits facts that are well pleaded, and these facts were not well pleaded. The allegations in the petition do not, therefore, show that these judgments or the sale thereunder was void.

The allegations of a combination between defendants and others to defraud plaintiff are not of such a character as would justify a setting aside of the sheriff’s sale; nor is the difference between the alleged value of the land and the price which it brought at such sale sufficient to do so.

Moreover, the title acquired by defendants through the sale under the deed of trust passed all of -the estate of plaintiff and his wife to defendants, and even if the sheriff’s sale should be held void, defendants would still have title to the land, having acquired title thereto under said deed of trust. It makes no difference, we think, with respect to the rights of plaintiff, that he signed the notes upon which were rendered the judgments under which his interest in the land was sold, or the notes signed by him as surety for his wife, Mrs. Martin, and described in the deed of trust under which the land was sold to defendants. They were contract debts which plaintiff obligated himself to pay, and it was his misfortune that his property was sold by his creditors.

For these considerations the judgment should be affirmed. It is so ordered.

All concur.