author: LAMM, P. J.

text:
    C. P. SEILERT v. WILLIAM F. McANALLY and J. W. WHITE, Guardian and Curator of JOHN and CURTIS McANALLY; J. W. WHITE, Appellant.
    Division One,
    November 27, 1909.
    1. TITLE TO REAL ESTATE: In Minor: Suit Against Guardian. The title to both personal and real property belonging to a ' minor (absent an express trust) is in the minor, and not in the minor’s guardian and curator, and hence the ward’s title to either cannot be disturbed without he is made a party to the suit, is duly summoned and have his day in court. A suit, summons and judgment against the guardian and curator alone do not bind the minor. The duty of the guardian and curator is to defend the title of his wards when they are made parties and summoned by due process.
    2. HOMESTEAD: Fraudulent Conveyance: Burden. Where the land in controversy was once a homestead, the burden is on him who claims it was conveyed by the homesteader to defraud creditors, to show that it ceased to be a homestead before the conveyance was made; and until he successfully carry that burden, he cannot be heard to contend that it was conveyed to defraud creditors.
    3. -: -: Title. The land was a homestead and the title was in the husband and he conveyed to his father, who in turn conveyed to the homesteader’s wife, both deeds being made without actual consideration, though one was expressed, and both being recorded. The wife died leaving minor children, and the husband sold to plaintiff, whose abstract furnished by the husband did not show the deeds to his father and wife, and plaintiff knew nothing of them. The husband represented to plaintiff he had good title, and testified the conveyances were made to avoid the payment of a debt which he owed a machine company. Held, the land being a homestead, there could be no fraud in the conveyance, and the plaintiff 'is not entitled, in this suit to quiet title, to have the title divested out of the deceased wife’s minor children, and vested in him.

      4. -: -: -: Possession: Curtesy. Nor does the fact that the wife during the time she lived did not take possession change the result, nor that the husband after her death continued in possession up to the time plaintiff bought from him, since the husband was under his curtesy right entitled to possession.
    5. FRAUDULENT CONVEYANCE: Recorded Deed: Notice: Ignorance. There is no exception to the statutory declaration that the record of a deed imparts notice to all subsequent purchasers of its existence. If that record shows the 'grantor had through an intermediary conveyed the land to his wife, the purchaser cannot avoid that deed, and divest the title out of her children after her death intestate, by showing that he was ignorant and could not read, and that the abstract furnished him by the grantor did not show such a deed.
    <6. -: -: Grantee a Privy. To avoid a voluntary recorded conveyance to a wife, on the ground that “the grantee was»a party or privy to the fraud intended,” it must be shown that the wife was a party to the fraud on the subsequent purchaser, and not that the sole purpose was to defeat a specific creditor of the husband. The deceased wife cannot be held to be a party to the fraud of an abstracter whose. subsequent abstract did not show the conveyance, and who omitted it from his abstract when the surviving husband undertook to sell the land to a subsequent purchaser.
    7. HARD CASES. Hard cases should not be permitted to make bad law. The symmetry of the law should not be spoilt, nor the statutes whittled away, to give relief in one hard ease.
    Appeal from Stoddard Circuit Court. — No». J. L. Fort, Judge.
    Reversed and remanded {with directions).

      Houck & Houck for appellant.
    There is no evidence upon which to hase a judgment for respondent. The evidence in this case shows that the contested deeds were executed two years before the sale to plaintiff for the purpose of preventing the premises in question from being sold for ¥m. F. McAnally’s debts, and that within six weeks of their execution the grantee, Martha Isabel McAnally, died. The only question there can he under such proof is, whether a subsequent purchaser can have conveyances avoided because such conveyances were executed with the intent to defraud existing creditors. The Supreme Court of this State has answered this question a number of times and since the decision in case of Bonney v. Taylor, 90 Mo. 63, has held uniformly that he cannot. The grounds upon which conveyances may be avoided for fraud are clearly set out in Secs. 3398 and 3399, R. S. 1899. Reynolds v. Faust, 179 Mo. 28; Davidson v. Dockery, 179' Mo. 697. Not only is there no proof that there was any design to defraud subsequent purchasers at the time of the execution of the deeds in question in the case at bar, but there is no proof that Martha Isabel McAnally or her children ever had such an intent or even had the slightest idea that such deeds would or could be used for such a purpose. Nor could they have been so used without the concomitant carelessness or connivance of the abstracter, as both deeds were of record long before respondent’s purchase.

      Ralph Wammach for respondent.
    (1) The law presumes such conveyances to be voluntary, and no actual fraud on the wife’s part need be shown. Patton v. Bragg, 113 Mo. 595'. The court from the record alone was justified in finding that these deeds were voluntary conveyances, and executed for a fraudulent purpose, and if that were sufficient, under the adjudicated cases in this State, upon which to base a decree for plaintiff in this case, the judgment of the trial court could easily be sustained. St. Francois Mill Co. v. Sugg, 206 Mo. 155. He who accepts and profits by the fruits of a fraud is no better than the perpetrator thereof. (2) The most difficult problem that confronts the respondent in this case, is the fact that the courts of this State hold that before a fraudulent deed, which has been placed of record, can be set aside at the suit of a subsequent purchaser, he must allege and prove that the deeds were executed with the intent to defraud such purchaser, and that the grantee was privy to such intended fraud. This-rule of law, if adhered to, puts upon the plaintiff an almost insurmountable burden. In England and in Canada the courts hold that all voluntary conveyances in consideration merely of love and affection, o.r a sense of moral duty, are ipso facto fraudulent and void as against subsequent purchasers for value with or without notice of the prior voluntary conveyance, and in some of the United States the English rule has been followed. It is said, “that the prevailing and sounder American doctrine is, that, a person purchasing property with full knowledge of a previous voluntary or fraudulent conveyance by his grantor cannot maintain an action to set such conveyance aside. In several jurisdictions a distinction is drawn between a voluntary conveyance made in good faith and a conveyance made with fraudulent intent, holding that the latter may be avoided by subsequent bona-fide purchasers, even where they have notice of the previous conveyance, while in the former case purchasers with notice cannot attack the conveyance. In some jurisdictions it is held that constructive notice is sufficient to bar a subsequent purchaser’s right of action to set aside a fraudulent conveyance, while in other jurisdictions it is held that the notice must be actual and that constructive notice is not sufficient.” 20 Cye., p. 438.
   LAMM, P. J.

Plaintiff sues in equity to set aside two certain deeds to Stoddard county land, as a cloud on his title, and to vest title out of defendants and into him. Defendant, William F. McAnally, does not appeal. A decree going, the defendant guardian and curator appeals.

Summarized, the bill alleges that on the 23d day of July, 1897, said Wm. F. was seized in fee of the southeast quarter of the northwest quarter and the southwest quarter of the northeast quarter, section 25, township 26, range 10 (80 acres); that on said day he and his then wife, Martha Isabell, conveyed the land to one Alex. McAnally for an alleged consideration of $1,500, the deed put of record presently; that three days later Alex, reconveyed the land to Martha Isabell for a like alleged consideration, which deed was put of record on the same day as the other; that on the 16th of September, 1899, over two years later, Wm. P. and his then wife, Alice (Martha Isabell having died intestate), sold the land to plaintiff, conveying it by warranty deed for full value paid, putting plaintiff in possession; that being unlettered, unfamiliar with land titles or how to trace them, plaintiff had to depend on others; that he intended to buy an unincumbered fee simple title and to that end used reasonable diligence and caution by requiring said McAnally to furnish him an abstract of title; that such abstract was furnished showing perfect fee simple title in him; that relying on and induced by said abstract, and by the fraudulent representation of Wm. F., viz., that he had a fee simple title, plaintiff purchased the land, paid his money and took a conveyance and possession; that in truth and fact the title was defective not only in respect to said two conveyances but in respect to other matters (immaterial here); that later, to-wit, in January, 1905, Wm. F. McAnally notified plaintiff that he did not own the land at the time he conveyed to plaintiff, but had theretofore conveyed to Martha Isabell, and that “they had better fix up the title . . . while they were both alive;” that plaintiff then caused the records to be searched and found the two 1897 deeds; that said abstract of title failed to show either of them; that “said deeds were falsely and fraudulently executed by the parties thereto with intent to cheat and defraud prior and subsequent creditors and probable purchasers of said land; that they were voluntary conveyances and were made without any consideration, and that no change of possession was ever had thereunder;” that the heirs of Martha Isabell are William F. (her husband) and John and Curtis, her minor children; that defendant White is the duly appointed, qualified and acting guardian and curator of said minors'; that though often requested to do so, defendants “have failed and neglected to perfect his title to said land;” and that said deeds “constitute a cloud on plaintiff’s title. Wherefore,” etc.

The answer was a general denial by the guardian and curator in his own behalf and for said minors. Defendant McAnally defaulted.

Plaintiff, to sustain the averments of his bill, put in proof as follows: (1st) A warranty deed to him from W. F. and Alice, his second wife, of date September 16, 1899, consideration $800; (2d) A warranty deed in regular form by W. F. and Martha Isabell, his first wife, to Alexander McAnally — consideration, date and record as alleged in the petition; (3d) A warranty deed from Alexander to Martha Isabell and recorded the same day as number two.

Supplementing his documentary proof, plaintiff took the stand and testified that he bought the land on the 16th day of September, 1899, now lives on it as a home, knew McAnally for some time, always considered him a man of his word and honorable, knew he had lived on it several years and had rented it out, collecting the rent when not living on it. McAnally came to him and offered to sell; told McAnally he might trade if he had a good title; McAnally said he had a good, straight title — “not a flaw in it;” plaintiff said to him he “was ignorant and did not know a thing about land titles. ’ ’ McAnally replied he would fix that matter by getting an abstract. Plaintiff told him to do so, he would have it examined and would take the land if the title was all right. McAnally got an abstract showing the title all right. (Note: This abstract omitted the 1897 deeds and certified the title clear.) Thereupon the deed was made and plaintiff paid $800. Plaintiff firmly believed at the time that. MeAnally had a good title, would not have traded if he had doubted it. Plaintiff knew nothing about MeAnally’s deed to Alexander and Alexander’s to Martha Isabell and never heard of them till years afterwards. MeAnally was reputed to be the owner of the land — had paid taxes, lived on it or rented it just like an owner. Plaintiff bought the place for a home and since purchasing had built a barn and fences and had otherwise improved the place — never having been disturbed in his possession or enjoyment of it. In 1905 plaintiff got a letter from MeAnally telling him that he had deeded the land to his first wife before she died. Put on inquiry, plaintiff then searched the record and found deeds putting title in Martha Isabell. He then went to Alexander MeAnally (¥m. P.’s father, now dead), and on inquiry was told that he (Alexander) paid nothing for his deed, and got nothing on Martha Isabell’s. Plaintiff had no schooling, could neither read nor write. The land in question is all he has. William P. MeAnally told plaintiff he conveyed to Isabell to keep Mr. Houck, an attorney, from enforcing the collection of some machine notes he held against him and one Miller, and that there was no consideration for the conveyance.

On cross-examination plaintiff admitted that neither William P. nor Martha Isabell was ever indebted to him in aught, and that he had had no dealings with Wm. P. except as detailed in his direct examination.

To further sustain his bill, plaintiff offered the deposition of defendant, William P. MeAnally. In substance his testimony follows: Witness sold the land to C. P. Seilert; bought it from one Hunt; owned it seven or eight years; used his own money in paying for it; his first wife, Martha Isabell, resided on the land; witness was living on it when he sold it to Seilert. Asked under what circumstances the conveyances were made to Alexander and Martha Isabell, he answered that he owed a. debt to a machine company for a binder bought by him and one Miller — they giving joint notes. These came into the hands of Mr. Houck for collection. Witness was about to sell the place he was then on and move on the land in controversy, so he sold his interest in the machine to Miller who was to take up the notes. Afterwards Houck wroté witness that he held a note over due/ Witness told Houck that Miller was to pay — he must look to him. Houck promised to look to Miller. Witness then went to Dunklin county. While there Houck wrote him threatening to sue if the note was not paid and to sell the land. The letter said it could not be held any longer as a homestead. At that time Martha Isabell was in bad health and nervous. She insisted witness should transfer the land to he.r to save it from being sold. Witness consented to do it. A deed was made and acknowledged and his wife came to Stoddard county and had “the changes made.” Na money passed from witness’s father, Alexander, to him, or from Martha Isabell to Alexander. The only object of the transfer was to keep the property from being sold for the machine debt. Witness was allowed to say that it was not intended that the title was to pass for her use and benefit, but (quoting) “she was just to hold it for me.” Nothing was ever said, however, about her deeding it back. The possession never passed out of witness under the deeds in question, but when those deeds were made witness and his wife were not Jiving on the land. Witness collected the rent after the conveyances. Martha Isabell, after the deed to her (quoting-), “made no claim -of ownership to these lands.” They were always assessed in witness’s name and the rent notes ran that way. Martha Isabell died about six weeks after she got title. Witness narrated at length how Martha Isabell got $200 as a present from her father, which he (witness) put into a piece of land and took title to himself. Sale was made and the purchase money used to buy other land, witness taking title. This was about thirteen years before he bought the Hunt land. His wife made no claim to any interest in any of the lands and witness could not say he used his wife’s money in buying the Hunt land. The conveyance to her was not on account of the advancement made by her father about twenty-one years ago. Witness had four children by his first wife — two now living, John and Curtis. One died after Martha Isabell. He stated his reason for not telling Mr. Seilert that he had conveyed the property to his wife to be that he had “no notice of this other conveyance except what my wife had told me.” Witness said he did not know the deeds were recorded. He knew about making one deed but not the other, and, not knowing they were recorded, did not tell Seilert. He intended to convey him a clear title. His wife told him the deeds had been made and recorded and that is what made him write Seilert that if they were on record he, witness, “wanted to fix it.” Witness was “positive” there was an agreement between them that she take the land and hold it to prevent its sale for the machine debt.

On cross-exajnination he stated that the $200 received by his wife from her father was put into land which was sold and the proceeds reinvested in other land and so on down until the Hunt land was bought. Witness and Martha Isabell lived together as husband and wife until she died, never was sued on the machine note, denied knowing that Miller had paid it before his wife got title to the land, knew nothing in regard to it except from Houck’s letter, and the transfer was on its heels.

The guardian and curator, on behalf of his wards, introduced no testimony. Such is the case on the facts.

At the close of plaintiff’s testimony, an unsuccessful demurrer was interposed, and exception saved.

The decree narrates that the case was heard on the petition and on the “answer of J. W. White as guardian and curator of John and Curtis MeAnally, minor defendants;” that defendant William F. made default; that plaintiff and the guardian and curator came in person and by counsel. The issues were found for plaintiff, the assailed conveyances were found to be falsely and fraudulently executed by the parties thereto “with intent to cheat and defraud prior and subsequent creditors and probable purchasers of said land,” voluntary, etc., and that no change of possession followed them. After other recitations relating to plaintiff’s purchase in good faith on full consideration paid for a fee simple title with no “actual knowledge” of said conveyances, etc., it was adjudged and decreed that the deeds (describing them) be cancelled and held for naught and that the legal title to the real estate (describing it) “be divested out of defendants and fully vested and confirmed in the plaintiff,” and that plaintiff have his costs and execution therefor.

On such record can the decree stand? Clearly not, because:

(a) The style of this case, the verbiage of pleadings, decree, and of the whole record indicate that John and Curtis were neither sued nor summoned as parties defendant. Defendant William F. had parted with his title, whatever it was, to plaintiff and had no interest left subject to a decree. That is, if he had a paramount title he had conveyed it to Seilert with covenants of warranty. Likewise, if he was tenant by the curtesy, as widower, then his life estate with the right to possession passed by his said warranty deed. Moreover, it cropped out in evidence that he had four children by Martha Isabell, three of them alive at the time of her death, one died since. We assume one died before. Now, the petition does not count on the theory that W. P. inherited an undivided interest from the child dying after its mother, hut on the theory that the mother had no title in equity. If William P. inherited an interest as one of the heirs of his deceased child and if descent was cast on him before he made his deed to plaintiff then that interest, whatever aliquot part it was, passed by his deed to plaintiff. If such was cast on him after he made that deed then such after-acquired undivided interest inured to the benefit of plaintiff under his prior warranty. But there is nothing of this sort in the hill. Its theory is that the mother died seized of a legal title in the land; that such title descended to her children, John and Curtis; that her title was fraudulent; hence the title of John and Curtis ás privies in estate was tainted, wherefore plaintiff sought to clear up his own title by removing the cloud of the minors’ tainted title. In that view of the case why Wm. P. was made a party is not clear to me.

It is primer law that the title to personal property of one dying intestate passes to his administrator— if he die testate, then to his executor or administrator cum testamento annexo — but the title to real estate vests directly in the heir. So, the title to personal property belonging to the ward (absent an express trust) is not vested in his guardian and curator, as a matter of law, but in the ward. Accordingly, the ward’s title to either his real or personal estate cannot be disturbed without his being a party to the suit duly summoned and having his day in court. He cannot be sued and hound vicariously by haling into court his guardian and curator. [R. S. 1899, sec. 558; Webb v. Hayden, 166 Mo. l. c. 50; Judson v. Walker, 155 Mo. l. c. 179; Payne v. Masek, 114 Mo. l. c. 636 — a case taking color from the peculiar wording of the partition act.] Mr. White as guardian and curator had no title to the real estate of his wards. His duty was to defend their title when they were summoned by due process in a suit relating to it. It is not clear, therefore, to us why he was made a party defendant.

These preliminary observations are made in order there may be no misconception about the proper parties defendant in a real estate action, or mischief rush in through the open door of a bad precedent. A judgment vesting- the title of infant heirs out of them and into another (as does this) without their being sued and summoned, has no legal foot to stand on and would be brushed away on appeal. However, there is bare chance that, present obscurities, we do not understand the record. It may be that under an unhappy title of the case, and despite unhappy record language, John and Curtis were actually summoned and their guardian and curator answered for them. Extending grace to plaintiff by throwing that doubt in the scale, we shall dispose of the merits. .

(b) Under this record the land in controversy was once the homestead of William F. and Martha Isabel! That status is presumed to continue until the contrary appears. The burden, then, was on the plaintiff to show it ceased to exist, and until he successfully carried that burden the McAnally title could not be fraudulently dealt with by them. Such has been the law in this State since Yogler v. Montgomery, 54 Mo. 577. The homestead is forbidden fruit to the creditor. He may not take it or eat thereof. Wherefore, as to the world at large, the homesteader (absent a statutory prohibition) may convey his homestead at his Own sweet will, fraud or no fraud. This because, as said by Lord Halsbttby in Derry v. Peek, 14 App. Cas. l. c. 343 (quoting language his lordship said was some centuries old): “Fraud without damage or damage without fraud” does not give rise to actions for fraud. There are exceptions to this «rule, notably when parties deal with each other in a fiduciary relation. But the case at bar is not within any exception. There is no testimony that the McAnallys had abandoned their homestead in Stoddard. It is true they lived a little while in Dunklin, but nothing shows they intended to remain there permanently, or that the intention to return (the animus revertendi) did not exist. We find they came back presently. True, too, Mr. Houck wrote McAnally that he had lost his homestead. But may a decree stand on that letter? The learned attorney doubtless had the crowning virtues of a good lawyer, viz., diligence, tact, learning, integrity, yet the aim of the letter was merely to press a spur into the side of a balking debtor, not to establish a proposition of law and fact. Observe, he did not pass on the issue of homestead or no homestead as a judge in a court of justice, or as an arbitrator or referee in a rustic tribunal and decide the question, rusticum judicium, so to speak; ergo, his proclamation that the homestead was lost did not operate as an estoppel of record, or in pais, binding on all men, courts included.

We conclude the judgment should be reversed on the ground (if no other) that there was no proof such as would vitiate the conveyances of the homestead. The fact that they were voluntary amounts to nothing, nor does the fact that Martha Isabell, during the six weeks she lived, took no possession and that McAnally continued in possession up to the sale amount to anything. He was entitled to possession under his curtesy.

(c) Section 3399, Revised Statutes 1899 (in the chapter on Fraudulent Conveyances) reads: “No such conveyance or charge shall be deemed void, in favor of a subsequent purchaser, if the deed or conveyance shall have been duly acknowledged or proved and recorded, or the purchaser have actual notice thereof at the time of the payment of the purchase money, unless it shall appear that the grantee in such conveyance, or person to he benefited by such charge, was party o,r privy to the fraud intended.”

The foregoing section is also an insurmountable barrier to plaintiff’s recovery. This because:

(1) The deeds sought to be vacated were on record for two years before plaintiff took his own conveyance. Now, section 923, Revised Statutes 1809, requires instruments in writing conveying or affecting real estate to be recorded in the county where such real estate is situate.

The next section reads: “Every such instrument in writing, certified and recorded in the manner hereinbefore prescribed, shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice.’

In the face of that section it is a vain thing for plaintiff to say (as he does) that he had no “actual notice” of these conveyances. He was bound to take notice. The statute makes no exception in favor of a blind man, or an unlettered man, or infant, or married woman, or any other person who may be an object of anxious care to a court of chancery; and it would be audacious for us to write in an exception. That the due and timely record of a properly acknowledged deed conveying real estate is conclusive notice to the whole world of its contents, is a property rule in this State not to be trifled with or whittled away by judicial construction. Those who walk as well as those who run must be held to read the record of a deed. It is one case in which those who cannot read must read, and where all are presumed to be well read.

(2) The exception under section 3399', supra, whereby a conveyance of the character in hand may be deemed void as to subsequent purchasers is where the grantee “was party o,r privy to the fraud intended.” In this case, conceding for present purposes that fraud was intended, yet it was a fraud against a specified creditor. Plaintiff defined, ear-marked and circumscribed the fraud by the evidence of McAnally and showed it alone aimed at the machine company, a creditor, and not at subsequent purchasers or, to use the language of the petition, “probable purchasers.” The idea was to save the home to themselves and it would not do to say they had purchasers in mind. Furthermore, it matters not what McAnally had in mind, the controlling question is what Martha Isabell had in mind. [Davidson v. Dockery, 179 Mo. l. c. 697, and cases cited.] ¥e doubt not from this record that the afflicted wife of McAnally had no purpose to wrong-innocent purchasers of the land and never contemplated that her husband, after her death, would conspire with a scampish or slovenly abstracter to concoct a lying abstract and wrong a purchaser in that way. If it were ruled that such covinous or reckless performance wiped out the notice given by the deed record, under express statutory mandate, no vendee who held title by a voluntary conveyance as a gift would be safe in his estate so long as a subsequent purchaser from his donor could show that he was imposed upon by an inefficient, insolvent or rascally abstracter.

(d) It is insisted that McAnally was not a competent witness to overturn the deeds in question. Up to this time we have treated his testimony as competent. McAnally’s confession is all the evidence on the point and appellant timely and aptly objected to its introduction, without avail. In my opinion he was clearly incompetent to reveal confidential conversations with his wife or overturn his own grant. But the question is not necessary to a decision of the case and is, therefore, reserved.

The case in some of its features is a hard one, but plaintiff’s possessory rights during the life of William F. McAnally do not, at first blush, seem to be in jeopardy, and if his warranty deed conveyed any interest cast on McAnally by inheritance from one of his children, then (as already said) plaintiff may be a tenant in common with John and Curtis. If so his betterments are not likely to be in jeopardy, and may be protected whenever partition will lie. However hard the case, we may not spoil the symmetry of the law or give .relief to plaintiff at the expense of the minor heirs of Martha Isabell, who did plaintiff no wrong. Says Lord Campbell (East India Co. v. Paul, 7 Moore P. C. 111): “It is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.”

The judgment is reversed and the cause remanded with directions to dismiss plaintiff’s bill as on a hearing on the merits, and render judgment against him for costs.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    FREDERICK J. WILSON, Appellant, v. ORILLA F. DARROW et al.
    Division One,
    November 27, 1909.
    1. REVIVING CAUSE: After Judgment and Term: To File a Bill of Exceptions. After judgment rendered and the lapse of the term, the circuit court has no authority to revive the cause in the name of another plaintiff for the purpose of authorizing him to file a hill of exceptions; nor has it any jurisdiction over the cause except to make such orders as are provided for by statute, and an order reviving a cause is not one of them. So that where judgment in a suit to quiet title, was rendered at the January term in favor of defendants, and plaintiff was granted the right to file a bill of exceptions during the May term, and during that term the time for filing the bill was extended to the October term, and on May 30th plaintiff died, the court had no authority to revive the cause in the name of his heirs or trustee at said October term, for the purpose of permitting the substituted plaintiff to file the bill of exceptions, or for any other purpose.

      2. -: In Name of Stranger. After judgment for defendant and the death of a plaintiff, the cause of action can he revived in the name of a stranger only hy showing that since the trial and prior to his death plaintiff transferred his interest in the cause of action to the stranger.
    3. -: -: Upon Motion. A cause of action, after the death of plaintiff, cannot he revived in the name of a stranger as substituted plaintiff except upon his written motion properly filed, showing a transfer to him of the interest of the original plaintiff, before his death and prior to the trial, and any other necessary matter authorizing a revivor.
    4. -: — : In Appellate Court. A suit cannot he revived in the Supreme Court in the name of a stranger to the record who claims to have acquired, subsequently to granting the appeal, the interest of the deceased appellant in the subject-matter of the suit, by contract, nor can it be revived in the name of anyone else except the heirs or devisees, or the executor or administrator, of the deceased appellant.
    Appeal from Adair Circuit Court. — Eon. Nat. M. Shelton, Judge.
    Affirmed.

      Campbell do Ellison, A. Doneghy and G. C. Weatherby for appellant.
    We have been unable to find a case deciding the point as to the right to file a bill of exceptions when the sole plaintiff dies after the elapse of the term at which judgment was rendered (as in the case at bar), and after appeal granted. But it does seem to us that if a trial court has the right to grant leave to an appellant to file a bill of exceptions at a time latex than the adjournment of the term at which the order or judgment appealed from is made or rendered, then the same court would have the power to carry into effect the order ox leave which he has the power under the law to grant. The trial court in such a case certainly has the right to complete the record of the case, and if this must be done after the death of the appellant, the one to whom he gave the leave, then he ought to have the power to do it. If the law were otherwise, then the purpose of the law in providing the right to the appellant to ask for, and the trial court grant, leave to file a bill of exceptions in vacation or at a subsequent term, would be defeated.

      H. F. Millan for respondent.
   WOODSON, J.

This suit was instituted by Frederick J. Wilson against Orilla F. Darrow et al., to determine title to certain real estate situate in Adair county, under section 650, Revised Statutes 1899. The petition was substantially in the words of the statute.

All of the defendants answered, setting up various defenses.

A trial was had at the January Term, 1907, of the Adair Circuit Court, which resulted in a judgment in favor of the defendants, and the plaintiff appealed by what is known as the short method. During the same term, the court duly granted plaintiff the right to file a bill of exceptions during the May term thereof, and during said May term the court extended the time for filing the bill of exceptions to during the October term thereof. November 7, 1907, during the October term, 1907, the • following was entered of record by order of the court:

“Comes now the plaintiff herein by attorneys and files suggestion of the death of plaintiff with entrance of appearance of Lillie B. Wilson, Lucile Wilson and Forest B. Wilson in this cause.
“Afterwards, on the same day, November 7th, the following was by order of the court entered of record therein.
“Comes now Lillie B. Wilson, Forest B. Wilson and Lucile Wilson and show to the court that the plaintiff in said cause, Frederick J. Wilson, departed this life on the 30th day of May, 1907, and.that Lillie B. Wilson, Forest B. Wilson and Lucile Wilson are his sole and only heirs at law. That said Forest B. Wilson and Lncile Wilson are minors. Now, therefore, the above Lillie B. Wilson, Forest B. Wilson and Lncile Wilson hereby enter their appearance and ask that a guardian ad litem be appointed by the- court for said Forest B. Wilson and Lucile Wilson, and that said cause be revived and continued in the name of said Lillie B. Wilson, Forest B. Wilson and Lucile Wilson as plaintiffs and that the name and style of said action shall hereafter from this date be Lillie B. Wilson et al. v. Orilla F. Darrow et al.
“November 8th, 1907, during said October term, 1907, of said court suggestion of death of Frederick J. Wilson filed by the Second National Bank of Jackson, Tennessee, by their attorneys, Campbell & Ellison, C. C. Weatherby and A. Doneghy.
“Afterwards on the same day, November 8th, 1907, during the said term said court caused to be entered of record therein the following: ‘Death of Frederick J. Wilson suggested on record, Second National Bank of Jackson, Tennessee, substituted as plaintiff as the successor in interest of Frederick J. Wilson, deceased. It appearing to the court that Lillie B. Wilson, widow and executrix of Frederick J. Wilson, deceased, refuses to be substituted as plaintiff and refuses to execute the trust in said cause, and that Forest B. Wilson and Lucile Wilson, the sole and only children of said Frederick J. Wilson, are minors and cannot execute said trust; cause revived in the name of said Second National Bank as plaintiff v. Orvilla F. Darrow et al., defendants. Summons ordered issued commanding Lillie B. Wilson, widow and executrix of Frederick J. Wilson, deceased, and Forest'B. Wilson and Lucile Wilson, minor children of said Frederick J. Wilson, Orilla F. Darrow, Frederick L. Darrow, Mary L. Hamilton, Ellen A. Foster and Charles E. Darrow to appear on or before the fourth day of the next term of said court to be begun and holden on the third Monday in January, 1908, to show cause, if any, why said cause should not stand revived and be continued in the name of the Second National Bank as plaintiff.’
“Afterwards, on November 8, 1907, there appears on the record of said court the following:
“ ‘November 8, 1907. Second National Bank, plaintiff, v. Orilla F. Darrow et al., defendants. Now at this day is received and filed bill of exceptions, which said bill of exceptions was taken and saved on the part of the defendant in the trial of this cause and duly signed by Hon. Nat. M. Shelton, judge of this court.’
“January 2,1908, in vacation of said court, a summons was issued with copy of suggestions of the death of plaintiff with notice to revive in name of Second National Bank of Jackson, Tennessee, summoning Lillie B. Wilson, Forest B. Wilson, Lucile Wilson, Orilla F. Darrow, Frederick L. Darrow, Mary L. Hamilton, Ellen A. Foster and Charles E. Darrow, issued.
“February 23, 1908, alias scire facias issued to sheriff of St. Louis for defendant, Charles E. Darrow.
“May 19, 1908, plaintiff orders alias writ for defendant, Charles E. Darrow.
“December 10, 1908, order of publication issued for defendant, Charles E. Darrow.
“January 20, 1909, defendants, Orilla Darrow, Fred. Darrow, Mary Hamilton, Ellen Foster, file motion to quash writ.
“February 2, 1909, Charles E. Darrow files motion to quash order of publication. Said motion (formal parts omitted) is as follows:
“ ‘Comes now defendant, Charles E. Darrow, for the purpose of this motion and appearing for no other purpose whatever, and moves the court to quash the order of publication herein for the following reasons:
“ ‘Because the same was made and published without authority of law.
“ ‘Because no order of court was made authorizing the same.
“ ‘Because the court had no jurisdiction to make or order the same.
“ ‘Because the whole proceeding for revival of said cause is void and wholly without authority of law. ’
“On February 2, 1909, during January term, 1909, the motion of defendant Charles E. Darrow to quash order of publication was sustained.”

Counsel for respondent has filed in this court the following motion, to-wit:

“The respondents move the court to strike out the bill of exceptions herein:
“Because the same is filed without any authority of law.
“And because the same was not filed by a party to the record.
“Because the record shows that the judgment was rendered at the January term, 1907.
“That at the January term, 1907, the appeal was granted and leave given appellant to file his bill of exceptions during the May term, 1907.
“At the May term on May 20, 1907, the court extended the time for appellant to file his bill of exceptions until or during the October term, 1907, of said court.
“On May 30, 1907, the appellant died.
“At the October term of said court on November 8, 1908, a bill of exceptions entitled ‘Second National Bank v. Orilla F. Darrow et al.,’ was filed.
“Because after the death of the appellant no one could appear in the cause, take any order or file any paper until the cause was revived.
“Because no leave of court was ever granted to ‘Second National Bank’ to file said bill of exceptions.
“Because after granting of the appeal, and after lapse of the term, the circuit court lost all jurisdiction of the cause, and there was no power in that court to revive the cause.”

Counsel for respondents make the following suggestions or objections to reviving cause in name of Second National Bank:

“This case cannot be revived in the name of the Second National Bank for the following reasons:
“The plaintiff, Fred. J. Wilson, died May 30, 1907, during the May term of the circuit court.
“Proceedings for reviving the cause could have been instituted during the term in that court, but were not.
“On the showing made by Second National Bank on its application to be substituted as plaintiff, Fred J. Wilson had the legal title to the land and when he died that title passed to his heir's, and said bank has not succeeded to that interest. It has no more title or interest now than it had when the suit was begun.
‘ ‘ The trial and judgment in the case settled it that Wilson had no title. A trial and judgment with the bank as plaintiff could only decide whether the bank had any equity. That point would be best settled if the bank would sue the Wilson heirs.
“The time within which any one could be substituted as plaintiff has passed.”

I. Counsel for respondents has filed a motion in this court to strike from the record the bill of exceptions filed in the cause by the Second National Bank. His motion is based upon the following facts, disclosed by the record, namely, that the judgment appealed from was rendered at the January term, 1907. At the same term an appeal was taken and leave was given to appellant to file his bill of exceptions during the following May term. At the latter term the court extended the time for filing same until or during the October term of the same year. On May 30,1907, the appellant died. At the October term, on November 8, 1908, a bill of exceptions, entitled the “Second National Bank vs. Orilla F. Darrow et al.,” was filed.

Upon that state of the record counsel for appellant contends that after the circuit court granted the appeal, which was at the January term, 1907, and after the lapse of the term, the court lost all jurisdiction over the cause and possessed no power or authority after that time to revive the cause in the name of the bank, or to authorize it to file a bill of exceptions in the cause.

In our opinion that contention is well founded, for the reason that after the lapse of the term the circuit court has no jurisdiction whatever over the cause, except to make such orders as are provided for by statute, and the order reviving a cause is not one of them. [Crawford v. Railroad, 171 Mo. l. c. 74 and 75.]

There is nothing in the case cited lending countenance to the contention that the circuit court had the authority to make an order of revival after the expiration of the term at which the judgment was rendered. What was there said is directly to the contrary and is a denial of such authority. In the discussion of this question Judge Gantt clearly stated the law as follows:

“The objection by the defendant is that the order of the circuit court purporting to revive the suit in the name of Gabbert, the administrator, was void, and said court was without jurisdiction to do so because by the allowance of the appeal that court lost jurisdiction of said cause and had no power to permit such revivor.
“In the determination of this controversy we must call to our aid certain fundamental principles. Thus, it is settled law in this State that during the whole of the term in which any judicial act is done, the proceedings are considered to continue in -fieri and even after a judgment has been rendered the record remains in the breast of the judges of the court and is therefore subject to amendment or alteration as they may direct, but cannot be so amended after the lapse of the term further than by nunc pro tunc entries which make the record speak the exact truth of what did occur. [Aull v. Trust Co., 149 Mo. 1; Rottmann v. Schmucker, 94 Mo. 144; Caldwell v. Lockridge, 9 Mo. 362; State ex rel. v. Treasurer, 43 Mo. 228; McCabe v. Lewis, 76 Mo. 296.]
“And it is equally well determined that this power of the court over its own records, and its right to amend, correct and complete the same is not affected by the fact that an appeal has been taken from its judgment. [Bank v. Allen, 68 Mo. 474; DeKalb Co. v. Hixon, 44 Mo. 341; Jones v. Insurance Co., 55 Mo. 342; Gamble v. Daugherty, 71 Mo. 599.]
“While a different doctrine was announced in Ladd v. Couzins, 35 Mo. 513, that case was subsequently discredited in Gamble v. Daugherty, supra, so that it is the settled doctrine that though an appeal transfers jurisdiction of the case, still the trial court has full jurisdiction and control of its own record and may, notwithstanding the appeal, amend, correct and perfect the same so that it shall show exactly what transpired in said court. [State v. Logan, 125 Mo. 22.]”

In the ease at bar the term had fully expired at the time the order of revivor was made and entered of record.

So in the case of Priddy v. Hayes, 204 Mo. 358, this court held that the circuit court had no authority even to sign a bill of exceptions after the expiration of the term at which the judgment was rendered, except where it was expressly empowered to do so by statute.

And in discussing a similar question this court, In Banc, in the case of State ex rel. v. Patterson, 207 Mo. l. c. 147, said: “And upon that principle the circuit court has no power or jurisdiction to make an order after the expiration of the time within which the statute commands it to he made.”

We are, therefore, of the opinion that the order of the circuit court reviving the cause in the name of the Second National Bank, and authorizing it to file a bill of exceptions herein was a nullity, and neither the order reviving the cause nor the bill of exceptions filed by the bank are properly before this court; and for that reason this court has nd authority to consider the merits of the case presented here through those void orders.

II. There is another equally valid reason why this court cannot look into the merits of this case, and that is this: The suit was brought by Wilson, and he appealed from the judgment rendered against him, and then died. Under that state of facts, if we confine ourselves to the Practice Act applicable to circuit courts, then there was but one way by which the action could have been revived in that court in the name of the bank, and that was by suggesting the death of Wilson, and then in some appropriate manner charged showing to the court that since the trial, and prior to his death, Wilson had transferred his interests in the cause to it, and then asked for an order of revivor in its name. There is no pretense made here that any such transfer was ever made by Wilson to the bank, nor did the motion (which I gather from the record was oral) • for an order of revivor contain any charge of such a transfer, nor does the record disclose that any evidence was introduced tending to show such a transfer.

The only record entry bearing upon the question of revivor was made during the October term, 1907, which was on the 8th day of November. That order is as follows:

“Death of Frederick J. Wilson suggested on the record. Second National Bank of Jackson Tennessee, substituted as plaintiff as the successor in interest of Frederick J. Wilson,- deceased. It appearing to the court that Lillie B. Wilson, widow and executrix of Frederick J. Wilson, deceased, refuses to be substituted as plaintiff and refuses to execute the trust in said cause, and that Forest B. Wilson and Lucile Wilson, the sole and only children of sai'd Frederick J. Wilson, are minors and cannot execute said trust, said cause is revived in the name of said Second National-Bank as plantiff vs. Orilla F. Darrow et al., defendants. Summons ordered issued commanding said Lillie B. Wilson, widow and executrix of Frederick J. Wilson, deceased, and Forest B. Wilson and Lucille Wilson, minor children of said Frederick J. Wilson, Orilla F. Darrow, Frederick Darrow, Mary L. Hamilton, Ellen A. Foster and Charles E. Darrow to appear on or before the 4th day of the next term of. said court to be begun and holden on the third Monday in January, 1908, to show cause, if any, why said cause should not stand revived and be continued in the name of the Second National Bank as plaintiff.”

In this connection it should be borne in mind that the widow and heirs at law of Wilson had previously suggested his death and had asked that the cause be revived in their names, but instead of passing upon their motion, the court took up the motion of the bank and made the order of revivor before set forth.

As before stated, the court, without any allegation or proof whatever of a transfer of Wilson’s interest in the subject-matter of the cause to the bank, “substituted the bank as plaintiff as the successor in interest of Frederick J. Wilson deceased.” The record does not show, nor do counsel for the bank contend that the court found the fact to be that Wilson had transferred his interest in the subject-matter to the bank, but they seek to escape the effects of that omission by insisting that tbe order of revivor, under section 758, Revised Statutes 1899, became absolute and conclusive upon defendants’ failure to appear on or before'the fourth day of the term of the court to which the summons was returnable, and move the court to set aside the provisional order of revivor. In other words, defendants by not so moving in the premises suffered default to go against them; and that after the expiration of the fourth day they could not contest the validity of the order of revivor.

In our opinion that contention is unsound, for it is elementary that before a judgment of any character, and especially one by default, will be permitted to stand, even in a collateral attack, there must be some kind of a statement filed in the court setting forth the facts constituting the cause of action, or a basis for the judgment or other relief sought in order that the record will disclose the matters and things determined thereby.

Section 756, Revised Statutes 1899', provides that the court “may, on motion, order the action to be continued by or against the representative or successor of such party in interest.”

And section 640; Revised Statutes 1899, provides that “all motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reason not so specified shall be urged in support of the motion.”

“Revivor of actions being purely statutory in its origin, the modes provided by the codes and statutes of the various States are exclusive, and the courts cannot grant such benefit by any other method.” [18 Ency. of Plead, and Prac., p. 1128, par. 5.]

A failure to make such a charge in the motion is jurisdictional and can be raised at any state of the proceedings, even for the first time in this court. [McQuitty v. Wilhite, 218 Mo. l. c. 591; Davis v. Railroad, 126 Mo. 69; Hoffman v. McCracken, 168 Mo. l. c. 343.]

Suppose, for instance, defendants had appeared in court in response to the summons, what would they have found there to answer? Absolutely nothing— no motion asking for a revivor of the cause in the name of the bank, nor a statement of any kind of the fact (if fact it was) that "Wilson had transferred his interests in the subject-matter of the suit to the bank.

"While it is no part of the record, counsel for respondents stated in open court during argument that whatever interest, if any, the bank had in the case was acquired by it long prior to the time when Wilson instituted .this suit. This side remark of counsel throws much light upon the vague and indefinite disclosures made by the record as to the interests of the bank in the cause. In fact it is the only rational explanation that could be offered for the bank’s desire to become a party to the suit. But, however that may be, it has nothing to do with the proper disposition of the case. It must be determined according to the record and not according to .the statements of counsel.

It was, however, material for defendants to know in whose name the suit was to be revived, in that of the heirs of Wilson or in the name of the bank, for both were asserting that right; and as there was nothing on file in the cause informing them of the nature of the bank’s claim, they were wholly unable to resist its motion (if we may so call it) for an order of revivor.

A distinction might and probably should be drawn where the heirs or personal representatives of a deceased plaintiff suggest the death, for in that case the law casts the title and interests of the deceased in and to the subject-matter of the suit upon the heirs, when it concerns real estate, and upon the executor or administrator when personalty is involved, thereby leaving no issue of fact to be determined regarding the claim of ownership of the property on that side of the ease; hut where a perfect stranger to all of the parties, as the bank was in this case, asserts title to the property by virtue of a contract made and entered into with the deceased, good pleading and practice require that such claim should be formally presented to the court, the evidence heard, and a formal finding and order or decree made determining that question. Otherwise the courts are liable to be imposed upon, and the rightful owners of the property are liable to be defrauded out of their rights.

The reason for requiring the bank, a new plaintiff, to make formal charge and proofs of ownership in this case is the same as that which requires the original or deceased plaintiff to make formal charge and proof of ownership in the original petition filed in the cause, namely: The law will not permit a person to maintain an action against his neighbor without he first charges ownership or the right to the possession of the property claimed, except he file his petition in court setting forth the nature of his claims thereto, and notify his neighbor to come into court and defend the same; and in addition thereto he must prove his claims by a preponderance of the evidence to the reasonable satisfaction of the court or jury; otherwise, he would be taking property without due process of law.

Doubtless this was the design of the Legislature in empowering the circuit courts, the triers of the facts, by section 764, Eevised Statutes 1899, to substitute the name of a transferee of a cause of action in lieu of the plaintiff bringing the suit, where the transfer had been made subsequent to the institution of the suit, in order that such transfer, when material, might be litigated along with the other facts of the case. That design is emphasized by the fact that the Legislature gave this court no such authority, knowing that it was not a trial court of original jurisdiction; and for that reason withheld from its consideration snch matters.

We are, therefore, of the opinion that said section 758 did not authorize the circuit court to make the order of revivor before set forth.

III. Nor is the bank relieved of the embarrassing situation in which it finds itself by anything contained in the Practice Act governing this court. There are but four sections of the statute bearing upon the question of revivor of actions in this court, and they are sections 856 to 859, Revised Statutes 1899, inclusive, which read as follows:

“Sec. 856. If there be several appellants or plaintiffs in error, and one or more of them die before the cause is submitted, such death shall be suggested by the surviving plaintiffs, and if one or more of several defendants die before the cause is submitted, such death shall in like manner be suggested by the surviving defendants.
Sec. 857. If there be several appellants or plaintiffs in error, and one o,r more of them die after the cause is submitted, or if there be several appellees or defendants in error, one or more of whom shall die after the cause is submitted, the appeal or writ of error shall not thereby abate, but in either of such .cases such death shall be suggested on the record, and the cause shall proceed at the suit of the surviving appellant or plaintiff in error, o.r against the surviving appellee or defendant in error, as the case may be.”
‘ ‘ Sec. 858. If all the appellants or plaintiffs in error die after the appeal is taken, or writ of error is brought, and before judgment rendered thereon, the executors or administrators of the last surviving plaintiff or appellant or the heirs and devisees of the plaintiff and appellant, in cases where they would be entitled to bring writs of error, may be substituted for such plaintiffs, and the cause shall proceed at their suit.
“Sec. 859. If the appellees or a sole appellee, or if all the defendants or a sole defendant in a writ of error die, after the appeal taken or writ of error brought, and before judgment therein, the excutors and administrators or heirs and devisees of such appellees or defendants may be compelled to become parties, and in like manner as in an original suit. ’ ’

Manifestly, the only one of those sections which could possibly apply to the facts of a case like this is section 858, for the reason that Frederick J. Wilson, the only appellant in the cause, died after the appeal was granted and before a judgment had been rendered therein by this court. But that section only authorizes the suit to be revived in the names of the executors or administrators, or in the names of the heirs and devisees of the appellant; and does not authorize a substihition in the name of a stranger who claims to have acquired the interest of the appellant in the subject-matter of the suit by contract, subsequent to the granting of the appeal. Not only that, but the grant of authority to this court to revive the cause in the names of the executors or administrators, or in the names of the heirs and devisees of the appellant, after appeal taken and after the death of the appellant, excludes the idea that the suit may be revived in the name of any one else after the happening of those events, either in this court or in the circuit court. That was the contention of counsel for the company in the case of Crawford v. Railroad, supra.

The writer had the honor of presiding over the circuit court which tried that cause, and concurred in the views of counsel to the extent that, literally speaking, after the appeal had been taken to this court, the circuit court had no jurisdiction to set aside the order granting the appeal and enter an order of revivor in the name of the administrator, etc., but it was of the opinion, and so held, that it was not the intention of the Legislature by that section of the statute to abolish the well-settled law of the State which authorized the trial court during the term at which a judgment was rendered to set the same aside, and to make such alterations and amendments thereto as right and justice should demand. So, acting under that well-settled law, the trial court set aside the order granting the appeal, and made an order reviving the cause in the name of the administrator, etc. On appeal to this court the action of the trial court was affirmed. But this court went further and properly held that the circuit court would not have had that power and authority if the term of court at which the judgment was rendered had fully lapsed prior to the time the order of revivor was made. [Crawford v. Railroad, 171 Mo. l. c. 75, and cases cited.]

In the case at bar the term had fully lapsed at the time when the circuit court made the order reviving the cause in the name of the bank. According to the case before cited that court had no power or authority to make the order; and we must therefore hold the order of the circuit court reviving the cause in the name of the Second National Bank of Jackson, Tennessee, to be null and void.

This view deprives this court of all authority to investigate and pass upon the merits of the case.

We are of the opinion that the judgment should be affirmed, and it is so ordered.

All concur.