Capitain v. Mississippi Valley Trust Co.

GRAVES, P. J. This case has for its companion the case of John G. Priest, Trustee, et al. v. Ringrose J. Capitain et ah, 236 Mo. 446, decided at the last term of this court, and reference should be had to the opinion in the Priest case for some of the details in the case at bar. As will be seen the Priest case was one in which John G. Priest, as trustee under a deed made by Ringrose J. Watson, applied to the circuit court of the city of St. Louis for an order to sell the real estate. An attempt was made to bring the present plaintiffs into court by service of process upon them in the State of California. In this Priest case we held that the circuit^court did not acquire jurisdiction over the plaintiffs in this case because there was no valid proof of the service of the writ of summons upon them in the State of California. In the original Priest case the lands were ordered sold and were sold in accordance with such order of the circuit court. These plaintiffs were infants. — 491 — In the ease at bar the plaintiffs seek to have the judgment and decree rendered by the circuit court of the city of St. Louis in the original Priest case declared null and void and the deeds made in pursuance of said sale under such order and decree declared null and void, and for other and further relief as called for in the prayer. The petition is exceedingly verbose and sets out in full the matter discussed by this court at the last term in said Priest case supra. The petition omitting these details reads: “Now come the plaintiffs in the above entitled cause, Eingrose J. Capitain, Chouteau Capitain and Isabella Capitain Williams, and by leave of court, file tins their amended petition, and for their cause of action state that the defendant Sophia M. Capitain was the daughter of Eingrose J. Watson and intermarried with Prank J. Capitain; that the plaintiffs Eingrose J. Capitain and Chouteau Capitain were the only, sons born of said marriage, and are still living; that the. plaintiff Isabella Capitain Williams, now the wife of -----Williams, and the defendant Manette PIowenstein, the wife of---Howenstein, now a widow, were the only daughters born of said marriage. “That on the 6th day of October, 1869, Eingrose J. Watson was the owner in fee of the following described property: “Lot number three of the subdivision of the estate of Eingrose D. Watson, deceased, containing thirty-three and thirty-two hundredths (33.32) acres, being lot number three of subdivision of a tract of one hundred and five (105) arpents conveyed to E. D. Watson by John Mackey, in United States Survey Number 2033, in the county of St. Louis, State of Missouri. “That on said day said Eingrose J. Watson conveyed to Joseph Bogy and Edward T. Parish, by deed record in Book 394, page 527, of the office of the Becorder of Deeds of the city, then county, of St. Louis, said real estate and other real estate therein described. — 492 — That said conveyance was made to said Bogy and Farish in trust for the sole and separate use of Sophie M. Capitain, the daughter of the said Watson (said Sophie then being a feme sole named Sophie M. Watson), for and during her life, free from the control of her husband should she marry, and after her death in trust for the heirs of the body of the said Sophie M. Capitain (formerly Watson) in fee; provided that so soon after the death of the said Sophie M. Capitain (formerly Watson) as any surviving child of the said Sophia shall have attained the age of twenty-one years, such child shall hold its interest in said property wholly discharged of the trust; and also providing for further disposition of the property in case the said Sophia M. Capitain (formerly Watson) died leaving no children. .A copy of said trust deed is hereto attached and marked ‘Exhibit A’ and made a part hereof.” • . Here follow the allegations as to how Priest became trustee and the court proceedings begun by him to procure the sale, and allegations as to the sale itself and the deed made thereunder. The details of these matters are found in the opinion in the Priest case, supra. The petition in the present case thus concludes : “That under said decree the land herein described was ordered sold and said John Gr. Priest, as trustee and commissioner, sold said land to A. K. Stewart, and on October 28, 1892, aclmowledged a deed conveying said land to said A. K. Stewart. “That on the second day of January, 1892, defendant, the Mississippi Valley Trust Company, was duly appointed trustee under said deed in the place and stead of said John Cr. Priest. “That the defendants Sophie M. Capitain and Manette Howenstein are non-residents of this State. That Sophia M. Capitain is now sui juris and is a resident of the city and county of Los Angeles, State of — 493 — California; that the whereabouts of Manette Howenstein are unknown, and that the ordinary process of law cannot be served upon the said Sophie M. Capitain and the said Manette Howenstein. That the plaintiffs are the only surviving children of the said Sophie M. Capitain except Manette Howenstein (formerly Capitain), who is also a child of the said Sophie M. Capitain, and a widow. That Prank J. Capitain was the husband of Sophie M. Capitain and is now dead. That no children born to the said Sophia M. Capitain have died leaving children. That Ringrose J. Capitain was born October 291, 1875; that Isabella Capitain Williams was born May 1, 18791; and Chouteau Capitain was born February 15,1882. “Plaintiffs further state that said order of court, said sale and conveyance to said Stewart, and said decree and the amendments thereof, were void, for the reason that this court was without jurisdiction to render said decree or make said orders, for the reason that it acquired no jurisdiction over the infants, they having not been served according to the requirements of the statutes of the State of Missouri, and the officer pretending to have served them with copies of the alias writ and petition and amended petition not having made return to such service in accordance with the statutes of Missouri. And for the further reason that the court had no jurisdiction of the subject-matter of the action, and that the court had no power to sell the remainders vested in these plaintiffs for the benefit of the life tenant, and that it was the duty of the life tenant to pay the taxes and mortgage on said land, and that the remainders of these plaintiffs could not be sold by the court because of such default on the part of said life tenant, and that these plaintiffs had no interest in the income from said property during the life of said life tenant, and that at the time the father of the plaintiffs, the said Plank J. Capitain, — 494 — was then living and was supporting- these plaintiffs, as he was bound in law to do. “That said decree, order of sale, alleged sale and conveyance were void, for the further reason that the appointment of said John M. Sellers was without the knowledge or consent of said Sellers; that his answer was filed therein at the instance and behalf of the plaintiff and was fraudulent as to these plaintiffs, and that said plaintiffs were not represented in said suit. “That said proceedings, the decree rendered therein, and the amendments thereof, constitute a cloud upon the title to the remainders vested in these plaintiffs under said deed referred to herein as Exhibit A, and render the same unsalable. “That the Mississippi Valley Trust Company, a corporation; the Continental Realty Company, a corporation; Edward B. Pryor, John C. Weber and E. L. Dozenbach, claim an interest in said land. “Plaintiffs further state that they are without any remedy or any adequate remedy at law. “That by reason of the premises said decree and the amendments thereof and said sale and conveyance were, as to these plaintiffs, null, fraudulent and void. “Wherefore, plaintiffs pray that said decree rendered in said cause number 87948, and the amendments thereof, and said conveyance, be cancelled, set aside and for naught held, as to these plaintiffs, and for such other and further relief as to the court shall seem meet and proper.” The answer is a general denial and several special defenses, which can best be noted as required. This sufficiently states the condition of the pleading. Upon trial the court dismissed plaintiffs’ bill for reason stated in a written opinion filed, but which reasons we deem immaterial here. It will be observed that the plaintiffs are remaindermen with the life tenant yet living. It must be further observed that the gist of their action is to cancel — 495 — this judgment and decree and the deed made under the sale directed by such judgment and decree for the alleged reason that such instruments constitute a cloud upon their title. The land specified in the petition is situated in St. Louis county and not in the city of St. Louis. The foregoing will suffice for a statement of the case. I. At first blush the jurisdiction of the St. Louis Circuit Court might rest in doubt. The evident ultimate purpose of the bill is to remove a cloud from the alleged title of plaintiffs to land in St. Louis county, and not to lands within the territorial jurisdiction of the circuit court of the city of St. Louis. Plaintiffs so declare in their bill. They say this judgment clouds their title and renders their interest as remaindermen unsalable. Suits to remove cloud from title should be brought in the county where the land is situated. But the petition in this case may well be given another construction. It may be well classed as a direct action in equity to cancel a judgment, and as such action the suit was properly brought in the circuit court of the city of St. Louis. We have a statute, section 2516, Revised Statutes 1909, which reads: “Proceedings on an injunction to stay a suit or judgment shall be had in the county where the judgment was rendered or the suit is pending, and the summons may he directed and served as summons in ordinary cases.” This statute has been upon the books in the same . language for years. We -have held that such statute applies to cases where the purpose of the action is to annul a judgment. In Davison v. Hough, 165 Mo. l. c. 578, Valliant, J., for the court said: “We are satisfied that section 3631 (R1. S. 1899) was intended to apply to suits coming within that class in equity jurisdiction above referred to which have for — 496 — their main purpose the annulling of a judgment or enjoining a proceeding at law, and was not intended to apply to a suit in which the jurisdiction in equity exists upon other grounds than that of affording relief by injunction, and when that relief is merely ancillary to the main object of the suit. This is the construction which courts of other States have put on their statutes of similar purport.” Taldng the view therefore that the real gist of the action is to annul the judgment in the Priest case, and that the removal of the alleged cloud upon the title to lands is only an incidental matter, the circuit court of the city of St. Louis had jurisdiction perforce of the construction which we have given the statute, supra, II. The judgment in the Priest case upon its face recited due service of process upon these plaintiffs as parties to that suit. It also recited the appointment of a guardian ad litem to act for them and that he did act, when under the evidence the guardian ad litem knew nothing of the proceeding. The judgment was not necessarily void upon its face. It required proof other than its own recitals to show that it was void. Under such conditions an action in equity will lie to cancel and annul such a decree, when brought by the proper parties, and there is no question in this case as to the present plaintiffs being proper parties to such suit. The amended judgment recites: “That due service of process has been had upon all of the said defendants, Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain and Chouteau Capitain, by the delivery to each of them at Los Angeles, in the State of California, more than twenty days before the beginning of the June term, 1892, by an officer of said State of California authorized to serve process within said State, a copy of the amended petition, and of the writ of summons for' said defendants heretofore issued herein; also that said defendant Sophia M. Capitain is an in — 497 — sane person and the other defendants minors and children of said Sophia; that an answer has been duly made and filed herein for said insane person and said minors by John M. Sellers, their guardian ad litem” Prom this recital it appears that the court in the P'riest case had proof of due service of the process upon the present plaintiffs. Upon the trial of this cause, however, the evidence shows that there was no legal proof of the service of this process. The record in the case at bar upon this' point is the same as the record in the case of Priest v. Capitain, supra. In the later case we discussed the question involved in this ease, not because it was necessary to a disposition of that case proper, but because it was thoroughly briefed upon both sides, and seemed to have been taken by counsel as a necessary question in that case. We could have finally disposed of that case'by the simple holding that the trial court erred in allowing the proof of service to be amended or changed after judgment. However, we went further for the reasons above stated, and for the reasons stated in that opinion. A re-examination of the law in this case has not changed our views. We said then and say now: “The statute under consideration prescribes a single method of proof. It does not leave it open to other methods of proof.” There was an attempt to make the statutory proof of service, but it was utterly defective and therefore unavailing to confer jurisdiction upon the court. As the statute permits but one method of proof and as the evidence in this case conclusively shows that the statutory proof of service was not before the circuit court in the Priest case, it follows that the recitals in this judgment now attacked is erroneous and false. It also follows that the court had no jurisdiction over these plaintiffs in that P'riest case, and as to them that judgment and decree would be declared void, if they are not debarred by other matters. — 498 — III. We indicated above that the trial court filed a memoranda opinion in the cause. This gives us the theory of the trial court. Among other things the trial court held that this amended proof of service was proper, and through such amended proof the court had jurisdiction in the original Priest case. That the amendment related hack and made the service of process good. The court then proceeded to discuss the question of the trial court’s jurisdiction of the subject-matter in the Priest case, and held that there was jurisdiction of the subject-matter. The trial court also discussed the Statute of Limitations and held that these plaintiffs were not barred thereby. Of this last holding plaintiffs can not and do not complain here, but respondents urge it. We need not discuss the jurisdiction of the subject-matter owing to the views which we have expressed as to the jurisdiction of the court over the person of the plaintiffs in the Priest ease. The failure of jurisdiction over the person rendered the judgment bad. No action of the guardian ad litem could confer jurisdiction if the minors had not been served and proper proof of that service made. [Scott v. Royston, 223 Mo. 568.] What view the trial court might have taken of this case under the views which we have expressed as to this amended proof of service, and the judgment of the circuit court in the original Priest case on the original proof of service, is not exactly clear. The court erred in holding the original judgment valid and binding, and for that error its judgment must be reversed and cause remanded. With that original decree held to he good, there was nothing of substance left in plaintiffs’ bill. With that judgment and decree held to be bad, as we have indicated should be held, it would of necessity force a fuller consideration of other matters pleaded in the answer. The petition we think states a good cause of action, but we will leave the matters — 499 — of defense open to a more thorough consideration upon a retrial of the canse, in the light of the views expressed in this opinion, as well as those expressed in the opinion in the original Priest case. These questions were, on the former trial, overshadowed by the greater question of the validity of the original judgment. With these views we reverse and remand the cause. All concur.