(289 Mo. 221)

MARLEY v. NORMAN'S LAND & MFG. CO. (two cases). (Nos. 21513, 21514.)

6. Action 68-Should be stayed until corrected tax deed can be procured.

(Supreme Court of Missouri, Division No. 1. action should be stayed until a corrected deed June 6, 1921. Motion for Rehearing Denied July 11, 1921.)

1. Judgment 141-Suit by publication at same time as suit on personal service, later dismissed, held a fraud.

Two suits by a land claimant, brought through different attorneys and pending at the same time, in one of which only one tract of land was involved, and the defendant was personally served and appeared, after which the suit was dismissed by the claimant, while in the other suit the same tract of land, with a large number of other tracts, was involved, and the defendant in the other suit was named as one of a large number of defendants, and service obtained only by publication in a paper of a small circulation, amounted to a fraud in fact on defendant, preventing him from making his defense in the publication suit, for which the default judgment in that suit can be set aside, though there was no intention to commit fraud.

2. Judgment 373-Client has notice of all proceedings in separate suits prosecuted by different attorneys.

A client, who authorized separate attorneys to institute separate suits involving the title to the same tract of land, is chargeable with knowledge of all steps taken in both of the suits, though neither attorney had knowledge of the other suit, and a judgment for the client in one of the suits can therefore be set aside, if the circumstances attending the prosecution of the two suits amounted to a fraud on the defenuant.

3. Corporations 428 (7) Knowledge of
president and chief stockholder chargeable to
corporation at time of his conveyance to it.
A corporation, to which land was conveyed
by its president and chief stockholder, is
chargeable with the president's knowledge of
the facts at the time he made the conveyance.

4. Taxation 764 (1)-Omission of word from
description of tax deed held patent clerical

error.

Where the tax deed recited that the judgment correctly described the lands as the southwest quarter and the northeast quarter of a designated section, and that the southwest quarter and northeast of that section were conveyed to the highest bidders therefor, the omission of the word "quarter" after the word "northeast" was a patent clerical error, which does not render the tax deed insufficient to convey the northeast as well as the southwest quarter.

5. Quieting title 49-Recognition of patent

clerical error is not reformation of deed. While a deed cannot be reformed in action to quiet title, the recognition of a patent clerical error or omission in a sheriff's deed for land sold for taxes is not a reformation of the deed.

Since a sheriff's deed cannot be reformed in an action to quiet title, proceedings in such could be procured, if a new one is required. 7. Estoppel 9-Remote grantee has no better rights than grantor, who was estopped to deny the tax title.

Where an owner of land sold for taxes was estopped by his answer in the tax proceedings from attacking the deed, a remote grantee from him stands in no better light.

8. Taxation 796 (2)-Admission in answer of individual ownership estops later claim land was held in trust.

Where the defendants in proceedings for the sale of land for taxes admitted ownership of the land, without claiming that it was held by them in trust, they are thereafter estopped from attacking the tax title on the ground that the land was held by one of them in trust for the other.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by Sophia Marley against the Norman's Land & Manufacturing Company to set aside a judgment, in so far as it quieted title in defendant, to the land claimed by plaintiff, in which action the defendant prayed that the court adjudicate the title to the land in controversy. From a judgment setting aside the former judgment, and decreeing title to one-half of the tract in controversy in each of the parties, both parties appeal. Reversed and remanded, with directions to enter judgment for plaintiff for all of the land involved.

Oliver & Oliver, of Cape Girardeau, and Gallivan & Finch, of New Madrid, for plaintiff.

J. L. Fort, of Dexter, and B. C. Hardesty, of Cape Girardeau, for defendant.

GRAVES, J. Plaintiff's action is one to set aside a judgment of the circuit court of Stoddard county, Mo., in so far as such judgment effects James Marley and the land involved in this suit. The judgment sought to be so canceled was one entered on the 22d day of September, 1910, in the case of W. W. Norman, Plaintiff, v. Jefferson J. Green et al. The Norman suit, supra, was an action to quiet title to 2,000 acres or more of land, including the 320 acres involved in the case now before us. It was against divers parties (including James A. Marley), if living, and against their heirs and devisees, if dead. Marley claimed to own 320 acres of land here involved, and was a party to this blanket suit, where all claimants were being jointly sued, whether they claimed an interest in the whole amount of land stated in the petition or not. This Norman suit was filed January 25, 1910, and judgment en

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(232 S.W.)

tered on September 22, 1910, as stated above. The judgment was on service by publication. The plaintiff in the present action is the mesne grantee of James A. Marley, and the defendant is the immediate grantee of W. W. Norman. The petition is in two counts, and as we gather it the first count is based upon a charge of actual fraud in the procurement of the judgment, whilst the second count might be said to be broad enough to cover constructive fraud, mistake, and deception, through which James A. Marley was prevented from defending that action.

In 1905 James A. Marley placed of record in Stoddard county, Mo., a deed which purported to convey to him the land in suit. In 1906 W. W. Norman brought a suit against Marley to quiet title to this land in Stoddard county circuit court. The suit was by publication. Marley heard of it, and arranged with counsel to defend his title. The case went by change of venue to St. Genevieve county, where it was disposed of in 1909, by plaintiff taking a nonsuit after the trial court had indicated adverse action to him. I. R. Kelso was counsel for Norman

in this case, and it is shown that he agreed to reinstitute the suit against Marley within a year. The suit begun in 1906 we shall

call suit No. 1. The one brought January

25, 1910, we shall call suit No. 2.

With the suit No. 2 pending, Mr. Kelso, as attorney for W. W. Norman, on February 3, 1910, brought suit No. 3, and had a summons sent to Marley's home in Illinois, and there served upon him. Suit No. 2 was brought there served upon him. Suit No. 2 was brought by Judge Green, as attorney for Norman, and at Norman's direction the notice of publication was run in a paper of limited circulation printed and published in a small town some distance from the county seat. Suits No. 3 and No. 2 were returnable to the same term of the Stoddard county circuit court. Marley, having actual notice of suit No. 3, came to Missouri and appeared in defense of that suit. Marley filed a motion for a cost bond in said action on September 12, 1910, 10 days prior to the decree in suit No. 2. Said motion for cost bond was continued to March term, 1911, and on the 22d day of March Norman dismissed the cause.

Both counts of the petition in the instant case contained a prayer, not only for the cancellation of the judgment of September 22, 1910, but also for the determining of title. The court granted plaintiff leave to strike out those portions of the prayers with reference to the adjudgment of title, and granted defendant leave to amend its answer, so as to ask for the adjudication of title. Both parties put in their chain of title to the 320 acres of land. The trial court found against plaintiff on the first count of the petition and for her on the second count, and set aside the judgment of September 22, 1910, but on the respective claims of title decreed 232 S.W.-45

title in plaintiff for 160 acres of the land and for defendant for the other 160 acres. From such judgment both sides have appealed. Details of both pleadings and evidence are left to the opinion.

I. If the trial court erred in setting aside the judgment of September 22, 1910, we have the end to plaintiff's case. This judgment is a blot upon her title, so long as it stands; this, because it divested James A. Marley of title, and decreed title in W. W. Norman, who conveyed to defendant. The trial court in its decree said:

"On the second count of the petition, as amended, the 'eourt finds that, by reason of mistake, error, and combination of facts and circumstances of the two suits against plaintiff in the Stoddard county circuit court, she was misled, deceived, and prevented from contestorder, judgment, and decree of this court ing her title to the lands involved, and that the should be that the decree of the Stoddard county circuit court, bearing date September 22, 1910, decreeing the title in defendant, should be canceled, annulled, and for naught held."

should be said that James A. Marley claim-
To get at the facts a little more fully, it
ed to have acquired title to these lands Octo-
ber 2, 1905, and his deed was recorded De-

cember 26, 1905. He, as well as plaintiff,
resided in Illinois.
W. H. Marley August 22, 1911, but deed not
James A. conveyed to
recorded until August 30, 1915. By the will
Ill., the title passed in December, 1913, to
of W. H. Marley, probated in Edgar county,
the plaintiff. The will, together with its
probate, were later (in 1916) filed for record
in Stoddard county. Case No. 1 of the line
of cases involved here was a suit by Norman
against James A. Marley, and covered only
the land in suit. It was finally dismissed in
1909, under the circumstances indicated in

our statement.

The present plaintiff is the mother of James A., as we gather from the record. From 1906 on these two have paid the taxes on the land. It stands admitted that neither the defendant nor its grantors had paid any taxes thereon for a period of 31 years.

[1] Mr. Norman explains the suits Nos. 2 and 3 by saying that he had written Mr. Kelso about reinstituting the suit which was dismissed in 1909, but had received no answer, and that he got Judge Green to bring No. 2, the omnibus suit, in which the name of James A. Marley appeared about the middle of a long list of defendants, and Marley's 320 acres described, with several thousand acres of other land scattered over the county. Norman knew, in law, if not in fact, of both these suits being brought, because the law required him to know the acts of his agent and attorney, Kelso, who brought suit No. 3. In law he knew just what Kelso knew, and, if he did, he knew that Marley had been sued by personal serv

ice, and only on the 320 acres of land own- not give rise to an action in equity to set aside ed by him. He knew in fact all that was a judgment for fraud. Such, then, may be done in case No. 2, and the form of that taken as accepted doctrine. taken as accepted doctrine. There must be some fraud committed on the court itself in the petition. He had the usual knowledge that publications are not often seen by nonres- cally or collaterally to the issue tried, or on the procurement of the judgment, arising extrinsiidents, and he knew of Marley's nonresi-party himself arising in the same way. Nevdence. He further knew that Marley, having been sued by personal service, would not likely suspect another suit by publication against him. The whole transaction, from the beginning to the end, was the handiwork of Norman and his own agents, and Norman should be responsible for any fraud in law, fraud in fact, deception, or mishap, which was occasioned by his acts or the acts of his counsel.

ertheless no court has undertaken to point out and define the particular frauds which will vitiate a judgment, any more than it has to define fraud generally, and many cases attest the acute diligence of courts in classifying facts as extrinsic and collateral, in order to save the administration of justice from the heavy reproach of enforcing an unconscionable advantage sounding in fraud in procuring a judgment. In Wonderly v. Lafayette County, supra, the scheme denounced there was said to be a 'fraud on the court whose jurisdiction was betrayed, and a fraud on defendant who was tricked out of his defense. That case illustrates the honorable sensitiveness of courts to frauds on their jurisdiction, and shows how shadowy, uncertain, and somewhat arbitrary is the line between fraud in the procuring of the judgment as distinguished from fraud in the cause of action itself. In other cases judgments have been annulled because of tricks and deceptions whereby the court has been made an 'instrument of injustice.' Bresnehan App. 157; Clyce v. Anderson, supra; Fitzpatv. Price, 57 Mo. 422; Lee v. Harmon, 84 Mo. rick v. Stevens, 114 Mo. App. 497."

Of course, the two lawyers are blameless, because neither knew what the other was doing; but this cannot be said of Norman. His acts put the whole chain of circumstances in motion, and whilst the trial court may have been right in saying that there was no actual fraud, a matter we need not and do not pass upon, yet it was clearly right in holding in substance that the things done by Norman and his agents and attorneys worked a fraud upon Marley, through which he (without relief from a court of equity) would lose title to the land, if such he had. The fact that Marley was sued in case No. 3, and personally served, was well [2, 3] In suit No. 3 Norman, through his calculated to prevent him and his counsel counsel, had the motion for costs continued, from scrutinizing the county papers for and whilst this was pending, through other another suit by publication, in which his counsel took his judgment in case No. 2. It land might be included. Marley not only makes no Marley not only makes no difference that Norman acted had counsel looking after his title from 1906 through different agents or attorneys. What on up to 1911, when case No. 3 was dismissed, they did he did, and his knowledge covered but during these years he took the leading the whole chain of circumstances. If these county seat paper, in order to keep advised. acts of Norman prevented Marley from makNorman is responsible for suit No. 3, because ing a defense in No. 2, it is sufficient in equihe had directed his counsel, Kelso, to rein- ty to defeat the judgment entered therein. stitute the suit dismissed in 1909, suit No. There is no doubt that Norman directed Kel1. If this act tended to abate the vigilance so to reinstitute the suit dismissed in St. of Marley, and tricked him out of a defense Genevieve county; and as above suggested in suit No. 2, it was not only a fraud upon he must know the acts throughout, although Marley, but upon the court who rendered a done for him through different agents. The default judgment in case No. 2. This filing court was right in setting aside the judgment of a case and procuring personal service of September 22, 1910, because it stands adtherein was well calculated to mislead Mar- mitted that the present defendant stands in ley as to there being another action pending, the shoes of Norman; that is to say, Norand, as said, this was the act of Norman. man was its president and chief stockholdWhat his agent and attorney did, in law and er at the date it took the deed, and Norman's equity, he did, and if the act misled Marley, knowledge was the corporation's knowledge. and tricked him out of a defense in case No. 2, then such fraud entered into the judgment herein sought to be set aside. Wonderly v. Lafayette Co., 150 Mo. loc. cit. 650, 51 S. W. 745, 45 L. R. A. 386, 73 Am. St. Rep. 474; Howard v. Scott, 225 Mo. loc. cit. 714, 125 S. W. loc. cit. 1165. In the latter case, by In the latter case, by Lamm, J., it is said:

"But the doctrine has been uniformly laid down broadly as announced in Wabash R. R. Co. v. Hirrielees, supra, and the cases there collated and cited, to the effect that false swearing and false averments in pleadings do

II. Both parties presented to the court their respective chains of title. The two chains of title to run the same up to a time (January 16, 1878) when the title passed to Joseph Weil. Joseph Weil. At this point the parties separate in a way. Joseph Weil lived in St. Louis for many years. He died in 1883, leaving a will, which was duly probated. He left a wife and two sons, August J. Weil and Henry G. Weil, called in the will Harry Weil. In 1891 a suit for taxes was brought by the county collector of Stoddard county against August J. Weil, Henry G.

(232 S.W.)

Weil, and the unknown heirs of Max Weil I word "quarter" after the word "northeast" and Joseph Weil. August J. and Henry G. in the deed is a mere clerical error, and Weil were personally served with summons in should be so considered in construing its this tax suit, and these two parties filed an effect as a conveyance. When read as a answer, in which they admitted the title whole, we think this deed conveyed the to be in them, and then followed such ad- whole 320 acres to Frisbee and Buchanan, mission with a general denial. The widow and plaintiff got what title they received had died prior to 1890, according to the evi- through it. The recognition of a patent clerdence of August J. Weil. The tax judg- ical error or omission in the construction of ment went in due course, and the sale was a deed is not a reformation of a sheriff's made thereunder. The tax judgment prop- deed. We have ruled in division 2 that a erly describes the 320 acres as the S. W. 4 sheriff's deed cannot be reformed in an acand N. E. 14 of section 36, township 24, range tion to quiet title. Brannock v. McHenry, 12 E. There were other lands in the judg- 252, Mo. loc. cit. 10, 158 S. W. 385. ment, not of consequence here. The tax deed says:

(1) That the judgment described the S. W. 4 and N. E. 14 of section 36, township 24, range 12, with other lands. (2) That O. (2) That O. C. Frisbee and James W. Buchanan were the highest bidders for:

"Southwest quarter and northeast of section thirty-six (36), the west of section, southeast quarter and south half of southwest quarter of northeast quarter, all in section thirty-two (32), in township twenty-four (24) north, of range twelve (12) east, for the price and sum of one hundred dollars."

(4) "That said last above described tracts were stricken off and sold to O. C. Frisbee

and James W. Buchanan."

And (5):

"I, J. N. Patterson, sheriff as aforesaid, do hereby assign, transfer, and convey unto the said O. C. Frisbee and James W. Buchanan all the above-described real estate so stricken off and sold to O. C. Frisbee et al. that I might sell as sheriff as aforesaid, by virtue of the aforesaid judgment, execution, and notice."

[4] So far as the land involved in this suit is concerned, the description of the land sold to Frisbee and Buchanan would be

"Southwest quarter and northeast of section thirty-six (36) in township twenty-four (24) north, of range twelve (12) east."

If the word "quarter" followed the word "northeast," as it does by figures and letters in the judgment and other parts of the deed, there would be a complete and good description of the 320 acres involved here. It was by reason of the absence of the word "quar ter" as above indicated that the trial court allowed to plaintiff only 160 acres of the land; i. e., the southwest quarter of said section. This sheriff's deed must be construed as a whole. It first says that the judgment under which the sale was had properly described the property herein at issue. It then recites that the sheriff did "expose to sale at public auction, for ready money, the above-described real estate," which was properly and definitely described theretofore in the deed. Then follows the statements which we have heretofore quoted.

[6] It is further stated in that case that the facts might be made to appear, to the end that the court might stay the proceeding until a corrected deed was procured. Plaintiff asked for such stay in this case, but the request was refused. We would reverse and remand the case for this failure, if we thought a new deed was required. We think, as above indicated, that in construing this sheriff's deed we can consider the very patent omission of the word "quarter" as suggested above, and when so construed it calls for the whole 320 acres of land.

III. The tax suit is a further storm center in the case. Defendant urges that, under the will of Joseph Weil, August J. Weil was made a trustee for the wife, Regine and the son, Harry or Henry G. Weil. The wife and August J. were made executors, and the administration of the estate closed in 1887. This was before the tax suit, and the wife had died before the tax suit. What was held in trust for her passed to the two boys upon her death. The will gave to August J. the homestead in St. Louis and described personal property to be held for the wife during life or widowhood. It then specified that the son Harry should have $40,000 first, because August J. had been advanced that sum. It then provided that the remainder should be divided in three parts, onethird to go to August J. in trust for the mother, one-third to August J. absolutely, and the other third to Harry absolutely, but with the provision that, if at the time of the division Harry was under age, "I hereby direct that my son August J. Weil shall hold said one-third part as trustee for the use of the said Harry Weil, until he shall have attained the age of twenty-one years," when it should be turned over to him. There is also the following clause in the will:

"After the payment of my debts and of the said forty thousand dollars, I direct that all the residue of my estate of whatsoever nature and wheresoever the same may be situate, whether real, personal or mixed, not hereinbeto three equal parts. If, in the judgment of fore otherwise disposed of, shall be divided inmy executors it is necessary or desirable to sell any or all of my estate for the purpose of making such division, they are hereby empow[5] It is clear that the omission of the ered to make such sale or sales, and to execute

665 (6)-Conclusions of beneficiary from circumstances do not add to weight of circumstances.

In an action on a life insurance policy, where the evidence of suicide was circumstantial, statements by the beneficiary in making proof of death under other policies that insured

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