March 31, 1931.
1. JUDGMENT: Obtained Through Accident, Fraud or Mistake: Relief. Courts of equity have jurisdiction to grant relief against the enforcement of judgments at law obtained or entered through fraud, accident or mistake.
2. ____: Mistakes of Fact: By Whom Committed. Mistakes of fact, resulting in a judgment at law, whether committed by the court, the clerk, or by one of the parties or their attorneys, may be employed as grounds for obtaining the interposition of courts of equity, and securing the relief of the party injured by the mistake.
3. ____: ____: Limitations on Power: General Principles. Specific limitations, applicable in all cases and under all circumstances, upon the granting of relief by a court of equity against judgments, on the ground of mistake of fact, have never been laid down. But there are certain general principles which are always kept in mind.
4. ____: Obtained Through Mistake of Fact: Supervisory Control of Equity. A court of equity, as such, has no supervisory jurisdiction over other tribunals, and has no power to sit in judgment on their acts to determine whether they have committed errors either of law or of fact while exercising their authority. In the employment of its power to grant equitable relief against judgments, it does not act in a supervisory or appellate character.
5. ____: ____: Matters Previously Considered: Neglect. In the absence of extrinsic facts justifying relief, such as fraud, accident or mistake, a court of equity will not set aside or restrain the enforcement of a judgment or decree on account of matters which were actually, or by due diligence might have been, presented to or considered by the court in arriving at the judgment attacked.
6. ____: Opportunity to Defend: Excusable Mistake: Exception. Courts of equity do not grant relief against a judgment for the purpose of giving to a defeated party a second opportunity to be heard on the merits of his defense; the relief is confined to those cases where the judgment was procured by fraud or through excusable mistake or unavoidable accident. But there is an admitted exception to this general rule in cases where, by reason of something done or omitted by the parties, there was no adversary trial or decision of an issue inherently in the case.
7. ____: Partition: Including Land Previously Conveyed by Decedent: Mutual Mistake. A judgment in a partition suit, in which were included twelve acres of land that had been conveyed by decedent to his child, the defendant, wherein the title and ownership of the land as described in the petition were not even technically in issue, the proceeding though adversary in form was not such in fact, and the judgment was rendered, not pursuant to a trial of the issues of fact, but on an agreed statement of facts, was not an adjudication, as the result of a hearing and submission, of the ownership of the twelve acres included by mutual mistake in the lands partitioned and sold; and is such a mutual mistake of fact as authorizes a court of equity to give relief against its consequences.
8. ____: Negligence: Estoppel. If the party who seeks relief from a judgment which injuriously affects his property rights and which grew out of mutual mistake was not culpably negligent and violated no positive legal duty, and if negligent his negligence was in part superinduced by that of the parties benefited by the judgment or their attorney, they are in no position to invoke his negligence as a ground of estoppel to his suit to obtain relief.
9. ____: Mutual Mistake: Relief: Hurtful Consequences of Denial. If the mistake of fact which resulted in the judgment, through the consequences of negligence, can be relieved against without inflicting loss or hardship on defendants, and not to grant relief would result in a positive injury to plaintiff, his negligence should not debar him from obtaining relief.
10. ____: Relief: Denial: Reproach to Justice. To refuse to grant equitable relief against a judgment in the circumstances shown by the record in this case, would be a reproach to the administration of justice.
11. ____: Confirmed by Judgment in Ejectment: Res Judicata. Relief against a judgment in partition whereby plaintiff's land was wrongfully included, sold and conveyed, is not barred by the fact that, after the judgment was rendered and had become final, the purchasers at the partition sale brought an action of ejectment against him, to which he did not plead either an equitable defense or a cross-action asking for affirmative equitable relief, and the issue as to a mistake of fact inherent in the partition proceeding was not presented by either side. In such state of the pleadings, the judgment in the ejectment for plaintiffs, who claimed title under the judgment in the partition proceeding, was not res adjudicata of the matters in issue in the later suit in equity to set aside, for mutual mistake of fact, the partition judgment and the conveyances made in pursuance to it.
12. JUDGMENTS: Relief: Upon Condition: Contribution. The owner of land included by mistake in the partition proceeding is entitled to have the judgment set aside upon condition that he pay to the purchasers a sum of money bearing the proportion that the value of his land bore to the value of the whole tract sold, and he is entitled to have contribution from the other coparceners a sum bearing the proportion of the value of his land to the proportion of the proceeds received at the partition sale.
Appeal from Webster Circuit Court. — Hon. C.H. Skinker, Judge.
REVERSED AND REMANDED.
D.S. Mayhew and W.J. Owen for appellant.
(1) Courts of equity have jurisdiction to set aside, vacate and annul judgments obtained through fraud, accident or mistake, if the judgment in question is against good conscience. 21 C.J. 88, sec. 64; 34 C.J. 462, 465, secs. 724, 730; 2 Pom. Eq. Juris. (3 Ed.) sec. 856; Tiedeman on Eq. Juris., sec. 193; 16 Am. Eng. Ecyl. Law 383; 1 Black on Judg., sec. 381; 3 Freeman on Judg. (Last Ed.) sec. 1246, p. 2593; Wilson v. Boughton, 50 Mo. 17; Case v. Cunningham, 61 Mo. 434; Panhandle Lumber Co. v. Bancour, 135 P. 560; Christy v. Railroad Co., 214 F. 1016; Simpson v. Simpson, 112 N.E. 276; Leighton v. Bruce, 156 N.W. 285; Dunning Bros. v. Johnson, 190 P. 829; Busey v. Moraga, 62 P. 1082. (2) Plaintiff's negligence, if any, in failing to discover that the twelve acres here in question were included in the partition proceedings, and his failure to plead that he was the sole owner thereof in fee, is excusable, and is not a bar to the maintenance of this suit, it appearing from the evidence that said negligence, if any, was not a violation of a positive legal duty owing by him to any of the parties to said proceedings, and it also appearing that defendant, nor any of them, have been prejudiced by such negligence, — and it also further appearing that defendants herein (plaintiffs therein) were guilty of wrongdoing and negligence in including said twelve acres in said partition proceedings. 2 Pom. Eq. Juris. (2 Ed.) sec. 856; Tiedeman's Eq. Juris., sec. 193; 3 Freeman on Judg. (Last Ed.) sec. 1204, p. 2502; 21 C.J. 89, sec. 64; 34 C.J. sec. 730, p. 464, and note 72; Troll v. Sauerbrun, 114 Mo. App. 323; Pennington v. Ry. Co., 284 Mo. 22; Panhandle Lumber Co. v. Bancour, 135 P. 558; Camden v. Coal Coke Co., 145 S.E. 575; Taylor v. Godfrey, 59 S.E. 631; Hutchinson v. Bambas, 94 N.E. 990; Bacon v. Bacon, 89 P. 317; Wood v. Oil Co., 220 Mo. App. 1017; 1 C.J. sec. 175, p. 1170; Soule v. Bacon, 89 P. 324; Dunning Bros. v. Johnson, 190 P. 829; Boulden v. Wood, 53 A. 911; Grig v. Loveland, 62 P. 830; Stowell v. Eddred, 26 Wis. 504; San Antonio Bank v. McLane, 70 S.E. 201; Inst. Bldg. Loan Assn. v. Edwards, 86 A. 962; Dobson v. Winner, 26 Mo. App. 329; Lyle v. Shinnabarger, 17 Mo. App. 66; Koontz v. Bank, 51 Mo. 275; Mo. Pac. Ry. Co. v. Saddlery Co., 215 Mo. App. 277; Chrisman v. Linderman, 202 Mo. 605; Kelly v. Ward, 60 S.W. 311; Langford v. Phillips, 227 P. 413; San Antonio Nat. Bank v. McLane, 70 S.W. 201. (3) The wrongful act and the negligence of plaintiffs and their attorney (in the partition suit) in including said twelve acres in said suit, estops them from taking advantage, in this suit, of the negligence of plaintiff herein in not bringing forward in said partition suit his title and equities to said twelve acres. San Antonio Nat. Bank v. McLane, 70 S.W. 201; Cases cited under Point 2; Western Nat. Bank v. Paul, 49 A. 830; Gates v. Steele, 20 A. 474; Calwallader v. McClay, 55 N.W. 1054; Wood v. Oil Co., 220 Mo. App. 1017. (4) The inclusion of the twelve acres in the partition suit was a fraud in law as to plaintiff herein, defendant therein. Murray v. Speed, 153 P. 181; Dunham v. Smith, 81 P. 427; Gates v. Steele, 20 A. 474. (5) The acceptance and receipt thereof by plaintiff herein of the share or part of the proceeds of partition sale found by the court to be due to him as his share or part in the land sold in partition did not constitute a ratification of the sale and judgment in partition, because of want of information and knowledge at that time of the inclusion of said twelve acres in the judgment and sale. 21 C.J. sec. 157, p. 1156; Garesch v. Levering Inv. Co., 146 Mo. 452; Frederick v. Railroad Co., 82 Mo. 402; Starr v. Bartz, 219 Mo. 47. (6) Plaintiff is not estopped from asserting herein his title to said twelve acres, and his right to the relief herein prayed and demanded cannot be defeated, or denied to him, on the ground of his alleged negligence, because the evidence shows conclusively that he had no information or knowledge that said twelve acres were included in the partition proceedings until after partition sale and conveyance to defendants Landis, and because the evidence utterly fails to show that defendants or any of them acted upon any thing done or said, or omitted to be done or said, by plaintiff herein, defendant therein. Oldham v. Wade, 273 Mo. 246; Burke v. Murphy, 275 Mo. 411; Matthews v. Van Cleave, 282 Mo. 33; Thompson v. Lindsay, 242 Mo. 76; De Lashmutt v. Teetor, 261 Mo. 412. (7) The judgment in the ejectment suit is not res judicata of any of the issues in this suit, and is not a bar to the maintenance of this suit, no equitable defense having been pleaded or prayed in that suit. Crowel v. Crowel, 196 Mo. 345; Sampson v. Mitchell, 125 Mo. 230; Callahan v. Davis, 125 Mo. 35; Swope v. Webber, 119 Mo. 564; Hutchinson v. Patterson, 226 Mo. 181; Avery v. Fitzgerald, 94 Mo. 207; Speed v. Ry. Co., 163 Mo. 111; Dutton v. Dameron, 100 Mo. 141; Spencer v. O'Neil, 100 Mo. 49; Ekey v. Ings, 87 Mo. 493; Hart v. Steedman, 98 Mo. 452; Wimpey v. Lawrence, 208 S.W. 379. Plaintiff herein, defendant in the ejectment suit, was not required or compelled (in order to anticipate an adverse judgment in that suit and the effect thereof in a subsequent suit) to plead, as an equitable defense, or as a cross bill with a prayer for equitable relief, the wrongful act of plaintiffs in including said twelve acres in the partition suit and his ignorance thereof until after the partition sale, and his failure to so plead constitutes no estoppel or bar to the prosecution of this suit. Witte v. Storm, 236 Mo. 490; Wimpey v. Lawrence, 208 S.W. 54. (8) The only question raised by the pleadings in the ejectment suit was whether plaintiffs had the legal title under the partition deed or whether defendant had it under the deed from A.A. Overton and wife to O.K. Overton, and the deed from O.K. Overton to defendant, although defendant specially pled his title under said deeds as one in fee and prayed the court to "ascertain the equities existing between plaintiffs and defendant in and to said lands and render a decree accordingly." Wimpey v. Lawrence, 208 S.W. 54; Nehwam v. Kenton, 79 Mo. 382. (9) In deciding the questions of res judicata on former adjudication, the court cannot rightfully ignore the issues raised by the pleadings in the ejectment suit and look to the evidence, if any, in the suit relating to unpleaded equities. Wimpey v. Lawrence, 208 S.W. 54; Nehwam v. Kenton, 79 Mo. 382.
J.S. Davis and G.M. Landis for respondents.
(1) It must be alleged that the judgment was obtained by fraud; that the fraud was practiced in the very act of obtaining the judgment, and not merely in the cause of action on which the judgment is founded. Hamilton v. McLean, 139 Mo. 678; Bates v. Hamilton, 144 Mo. 11; Fears v. Riley, 148 Mo. 58. (2) In order to constitute a cause of action in a case to set aside a judgment where the court had jurisdiction of the parties and the subject-matter of the action, as it did in the partition suit here attacked by plaintiff, the plaintiff by his bill must show that his failure to avail himself of any defense he had in the former suit was not attributable to any negligence or want of diligence on his part, but to fraud or act of the opposite party outside of any allegations in the pleadings in the former suit. Lieber v. Lieber, 239 Mo. 39; Hamilton v. McLean, 169 Mo. 68; Corolus v. Kock, 72 Mo. 646; Cantwell v. Johnson, 236 Mo. 600; Railroad v. Merreless, 182 Mo. 142; Shemwell v. Betts, 264 Mo. 271; Howard v. Scott, 225 Mo. 712; United States v. Throckmorton, 98 U.S. 93. (3) The exact grounds set up in plaintiff's petition for setting aside the judgment sale and deed in the partition suit, are that this twelve acres of land were included in the partition petition by mistake and oversight, and that this mistake was not discovered by any of the parties until long after the partition sale and the execution of the deed to the purchasers — thus clearly exonerating all parties from any fraud; and in plaintiff's reply he gives all parties and their attorney a clear bill of fare against any taint of fraud, then he proceeds to tell plainly just how and why he was misled. Being misled by relying on erroneous allegations in the petition is not sufficient grounds to set aside a judgment; for "if equity could vacate a judgment on such grounds by a new one, why not overturn the latter by a new suit and so on without end." Howard v. Scott, 225 Mo. 713. It is laid down in many cases that fraud, to overturn a judgment, must arise on extrinsic and collateral matters and not on the very issues presented by the pleadings and passed upon by the trial court. McDonald v. McDonald, 242 Mo. 176; and cases cited. Duncan v. Lyon, 3 John. Ch. 365; Story Eq., secs. 895, 1572; Ritter v. Democratic Press Co., 68 Mo. 459; Payne v. O'Shea, 84 Mo. 134; Lieber v. Lieber, 239 Mo. 31; Bates v. Hamilton, 144 Mo. 1; Lieber v. Lieber, 239 Mo. 1; McDonald v. McDaniel, 242 Mo. 172; Shemwell v. Betts, 264 Mo. 268. Sec. 2032, R.S. 1919, provides that the sheriff's deed at a partition sale "shall be a bar against all parties interested in such premises who shall have been parties to the proceedings, and against all persons claiming from such parties, or either of them." Becker v. Stroeher, 167 Mo. 306; Holladay v. Langford, 87 Mo. 577; Pentz v. Kuester, 41 Mo. 447. (4) There is no question but what the plaintiff could have set up the very matters that he now relies on for recovery, as a defense in the partition suit; that being true, the decision in that case is res adjudicata as to those matters, as much so, as if they had been put directly in issue by the pleadings in that case. Lieber v. Lieber, 239 Mo. 41; Donnell v. Wright, 147 Mo. 647; Stephenson v. Anson, 217 Mo. 361; Ketchum v. Christman, 128 Mo. 38. Parties to a partition suit cannot dispute the title of the purchaser at the partition sale as to the land embraced in the partition suit. Bobb v. Graham, 89 Mo. 207; Holladay v. Langford, 87 Mo. 582. Under Sec. 2008, R.S. 1919, it is incumbent upon the court trying a partition suit, in its judgment and decree, to declare the rights, titles and interests of the parties to such proceedings, petitioners as well as defendants, and determine such rights, and give judgment that partition be made between such of them as shall have any right therein accordingly. This the court did in the partition suit involving the land as to which the plaintiff seeks now to have said judgment set aside. But, the law in this State is, that at the sale, the title of all parties to the partition suit passes to the purchaser. Forder v. Davis, 38 Mo. 107; Hart v. Steedman, 98 Mo. 456; Smith v. Kiene, 231 Mo. 235; Bushman v. Bushman, 311 Mo. 568; 16 Am. Eng. Ency. Law (2 Ed.) 380. (5) In such a case, the fraud must be actual fraud, as contradistinguished from a judgment obtained on false evidence or a forged instrument on the trial. Nichols v. Stevens, 123 Mo. 96; Moody v. Peyton, 135 Mo. 482; Oxley Stave Co. v. Butler Co., 121 Mo. 614; 1 Bigelow on Fraud, 86, 87; Ward v. Southfield, 192 N.Y. 287. The mistake, not fraud, complained of in the instant case is that by oversight and mistake, this twelve acres was included in the description of the land in the partition suit, and was adjudicated in that case and went to judgment and sale. It was thus clearly (if mistake at all) a mistake in the petition and cause of action; and, under all the authorities in this State, such a mistake is not sufficient ground on which to set the judgment of partition aside. Donnell v. Wright, 147 Mo. 647; Lewis v. Land Co., 124 Mo. 687; Ritchie v. McMullen, 79 F. 531; Wood v. Amory, 105 N.Y. 282 . (6) The petition, answer and reply in the ejectment suit were all introduced as evidence in the present suit. On the issues joined in said ejectment suit, and the evidence there submitted, the trial court found the issues in favor of the plaintiffs there (who are the defendants here) and against the defendant there (who is the plaintiff here), and rendered judgment accordingly. O.S. Overton, defendant in that case (plaintiff here) appealed that case to this court, and this court passed upon the cause and handed down an opinion, which is found in 293 S.W. 371; in that opinion, this court after clearly stating the issues and facts presented upon that trial, in passing upon the matter, said; that "the judgment in partition and sale thereunder passed all the title appellant then had in said land, and he cannot now dispute the title the purchasers acquired thereat." To sustain this holding, the court cites Sec. 2032, R.S. 1919. If as the court said the sale there passed all the title that O.S. Overton then had to the purchasers (and he then had the very title he now claims), this clearly defeats his present contention. What excuse, if any, can plaintiff give for not setting up as a defense to the ejectment suit the very matters he sets up in his present petition; he knew when that case was filed that the Landises were claiming that they had bought this twelve acres with the other land at the partition sale. No "oversight," no "mistake" can possibly help out his short-coming in not bringing these matters forward in his ejectment defense, because in that action the Landises plead the partition suit as a bar to his claiming any title to the twelve acres. This we insist together with defendant's answer, carried the case to the equity side of the court. A judgment in an ordinary statutory ejectment suit, if not transferred to the equity side of the court by answer or reply or other pleading in the case, is not res adjudicata: but unless reversed or set aside, or its legal effect destroyed by another ejectment suit, it is res adjudicata as to the parties defendant or their heirs. When the parties join issue on equitable matters, as was done in the ejectment suit here involved, the questions decided becomes res adjudicata. Chouteau v. Gibson, 76 Mo. 38; Preston v. Rickets, 91 Mo. 320; Sampson v. Mitchell, 125 Mo. 217; St. Louis v. Schulenburg, 98 Mo. 613.
This is a suit in equity to cancel and set aside in part, on the ground of mistake, the judgment in a certain action for the partition of real estate. From a judgment of the circuit court dismissing his bill plaintiff prosecutes this appeal. There is but little controversy as to the facts. They will be stated as briefly as may be.
On March 4, 1916, A.A. Overton, the father of appellant, owned the following described land in Barry County, Missouri, to-wit: The northeast quarter of the northwest fractional quarter and the north half of the northeast fractional quarter in section one, township twenty-three, range twenty-nine. In one corner of the land just described there was a tract of twelve acres cut off from the remainder by a creek which occasionally overflowed and flooded the small valley through which it ran. This twelve-acre tract consisted of four or five acres of bottom land, the side of a steep, rocky hill covered with brush and scrub, and a level surface of about two acres in area on the top of the hill. The twelves acres did not have any buildings or improvements of like character on it; it did not exceed in value, per acre, the remainder of the land. The value of the grantor's land as a whole was not diminished in value by the conveyance as hereinafter mentioned of the twelve acres in excess of the value of the land conveyed.
On the date last mentioned, A.A. Overton conveyed by deed the tract of twelve acres to his son, O.K. Overton, and the deed was immediately recorded. At the time of such conveyance all of the children of the grantor were duly advised thereof; two of them complained of their father's action with reference thereto, but all duly recognized the fact that the ownership of the twelve acres had passed to O.K. Overton. On November 5, 1918, the latter sold and conveyed the tract just mentioned to his brother, the appellant. There was an error in the description of the land as set forth in the deed, subsequently corrected by the execution of another deed, but all of the other brothers and sisters knew of the sale and conveyance at the time of the transaction or shortly following it.
On the ____ day of June, 1918, A.A. Overton died intestate, seized and possessed of the land first described, excepting the twelve acres which he had conveyed to his son O.K. Overton. R.C. Overton, another son, was duly appointed administrator of his estate. The administrator thereupon employed respondent, C.M. Landis, as his legal adviser touching all matters connected with the administration. Landis was a practicing attorney at Cassville, the county seat of Barry County; he had been probate judge of that county; he owned a set of abstract books and was, or had been, engaged in the business of making and furnishing abstracts of title to lands in Barry County.
After the administration of the estate of A.A. Overton, deceased, had been in progress for about a year and a half, one of the heirs who lived in Oklahoma directed Judge Landis by letter to bring a suit for partition of the land belonging to the estate. All of the other heirs, except appellant, consented to join with her in bringing the action. He declined for the reason that he had a claim against the estate, which was in litigation and undetermined. The petition was filed February 4, 1920. The land which was alleged therein to be owned by the parties as tenants in common and which was sought to be partitioned was described as follows: the northeast quarter of the northwest fractional quarter and the north half of the northeast fractional quarter in section one, township twenty-three, range twenty-nine, in Barry County, Missouri. This of course included the twelve acres owned by appellant. The description of the land to be partitioned was not furnished Judge Landis by any of the parties; they assumed that he knew the land owned by their father at the time of his death. Where he got the description he inserted in the petition he was unable to say; it might have been from an old deed, or tax receipts. He did testify, however, that if he had known of the deed from A.A. Overton to O.K. Overton he would have excepted the land conveyed by it from the land described in the petition.
When the summons was served on appellant (defendant in the partition suit), he did not discover that his twelve acres were included in the land described in the petition. He did not, in fact, know the description of any of the lands by section, township and range; he assumed that Judge Landis knew the land belonging to his father's estate and had correctly described it. His only concern was with respect to the allowance and classification of his demand against the estate before the conclusion of the proceeding for partition. His attorney accordingly filed an answer in which the defendant admitted "that his father A.A. Overton died intestate, seized and possessed of the land described in the plaintiff's petition." When the cause came on for hearing, an interlocutory decree adjudging the interests of the parties and ordering a sale of the land was entered by consent. At the sale had pursuant to the decree the respondents, C.M. and Sadie Landis, became the purchasers, and in due course received a sheriff's deed conveying the land to them. The interlocutory judgment of partition, the order of sale and the sheriff's deed all followed the description of the land as contained in the petition. Appellant received and receipted for his share of the net proceeds arising from the partition sale. He did not know that his twelve acres had been included in the land partitioned until several months after the proceeding had terminated; the other heirs did not learn of it until the controversy respecting the ownership of the twelve acres arose between appellant and the respondents.
Several months after the partition proceeding above referred to was had, appellant began the erection of a house and outbuildings on the twelve acres, which he subsequently completed at a cost of approximately $2,000. While he was engaged in making such improvements he received a letter from respondent, C.M. Landis, advising that he, Landis, owned the land on which the buildings were constructed and that he would hold them. But appellant had no doubt as to his own title to the land; he thought Landis laboring under a mistake; he therefore paid no heed to his letter, but went on with the erection of the buildings. About the time they were completed respondents, C.M. and Sadie Landis, commenced a suit in ejectment against him to recover possession of the land. In that suit the petition was in conventional form; the answer filed by appellant (defendant therein) admitted possession and then set up his muniments of title, the deeds which constituted his chain of title from A.A. Overton, the common source; he concluded his answer in this wise: "Wherefore, defendant prays that the court may ascertain the equities existing between plaintiffs and defendant in and to said land and render a decree accordingly." In reply plaintiffs set up the judgment in the partition suit as a conclusive adjudication of the title. The judgment went for plaintiffs and on appeal it was affirmed by this court. [Landis v. Overton, 293 S.W. 371.]
As heretofore stated, appellant was the sole defendant in the partition suit. In this proceeding the plaintiffs in that action and the purchasers at the partition sale were made parties defendant. The bill after setting out at length the facts herein summarized alleged that the inclusion of the twelve acres in the land partitioned was the result of a mistake common to all parties to the proceeding and that such mistake was not discovered by him or any of the others until long after the judgment rendered therein had become a finality. It then prays that the partition judgment, sale and deed be set aside and for naught held in so far as they affect the title to the twelve acres in controversy.
The defendants who were plaintiffs in the partition suit joined in an answer in which they plead as an estoppel against plaintiff the partition judgment and his participation in the distribution of the proceeds of the partition sale. The defendants, C.M. and Sadie Landis, filed a separate answer in which, after setting up the judgment rendered in the partition suit, they averred:
"These defendants say that the Circuit Court of Barry County, Missouri, was the court having full, complete, competent, and original jurisdiction of the subject-matter of said partition suit and also had jurisdiction of the persons of all the parties to said suit and had full and plenary powers to settle, define, ascertain and determine all questions and issues that were within the scope of the pleadings and said cause and that might have been plead, brought forward, or asserted by any of the parties to said suit, whether legal or equitable and all matters pertaining to the title to the land embraced in said partition suit, that might and should have been asserted in said suit.
"These defendants say if plaintiff herein, who (was) defendant in said partition suit, failed to bring forward or assert in said partition suit any title he may have had to any of the lands which were the subject-matter of said suit and stood by and received the proceeds of said land adjudged to him by the court, then if he suffered any injury thereby it was the result of his own negligence. And his allegations in his petition herein that he held and had full knowledge of the existence of the instrument, under which he now seeks to defeat the judgment in partition before the filing of the partition suit and before the decree rendered therein estops, bars and precludes him from now disputing the title of these defendants to the land or any part thereof that was involved in said partition suit."
These defendants also plead by way of estoppel the judgment rendered in the ejectment suit.
It is settled doctrine that courts of equity have jurisdiction to grant relief against the enforcement of judgments at law where such judgments were obtained or entered through fraud, accident or mistake. Mistakes of fact, whether committed by Equitable the court, the clerk, or by one of the parties or Jurisdiction. their attorneys, have been successfully employed as grounds for obtaining the interposition of courts of equity, and securing the relief of the party injured by the mistake. [3 Freeman on Judgments (5 Ed.), 2593; Williams v. Broughton, 50 Mo. 17; Partridge v. Harrow, 27 Iowa 96; Weir v. Carter 169 S.W. (Tex.) 1113; Cohen v. Dubose, 1 Harper's Eq. 102; 14 Am. Dec. 709.] Specific limitations, applicable in all cases and under all circumstances, upon granting relief against judgments, on the ground of mistake of fact, have never been laid down. There are certain general principles, however, which are always kept in mind.
A court of equity, as such, has no supervisory jurisdiction over other tribunals and has no power to sit in judgment on their acts to determine whether they have committed errors either of law or of fact, while exercising their authority. In the employment of its power to grant equitable relief with respect to judgments, it does not act in a supervisory or appellate character. So that in the absence of extrinsic facts justifying relief, such as fraud, accident or mistake, equity will not set aside or restrain the enforcement of a judgment or decree on account of matters which were actually, or by due diligence might have been, presented to or considered by the court in arriving at the judgment in question. [Freeman on Judgments, supra, 2521.]
"Courts of equity do not grant such relief for the purpose of giving a defeated party the second opportunity to be heard on the merits of his defense; and the relief is confined to those cases where the judgment is procured by fraud or through Adversary excusable mistake or unavoidable accident." [Murphy v. Trial. DeFrance, 101 Mo. 151, 158, 13 S.W. 756.] This general rule rests on the maxims: a man shall not be twice vexed for one and the same cause; and it concerns the public that there be an end to litigation.
"But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there was in fact no adversary trial or decision of the issues in the case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side, — these, and similar cases which show that there has never been a real contest, in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing." [United States v. Throckmorton, 98 U.S. 61, 65.]
In the partition suit in which the judgment under consideration was rendered, the title and ownership of the land as described in the petition in that case were not even technically in issue; the proceeding was adversary in form, but not in fact; the Mutual judgment was rendered, not pursuant to a trial of the Mistake. issues of fact, but on an agreed statement of facts. There was, therefore, no adjudication, as the result of a hearing and submission, of the ownership of the twelve acres of land included by mutual mistake in the lands partitioned. It would seem to follow that such mistake, in so far as relief in equity from its consequences is concerned, should be regarded as having a status in no way different from that of a mutual mistake of fact made by the parties to a deed or other instrument in writing.
Respondents stress appellant's alleged negligence as a ground for debarring him from relief. "It has sometimes Negligence: been said in very general terms that a mistake Estoppel. resulting from the complaining party's own negligence will never be relieved. This proposition is not sustained by the authorities. It would be more accurate to say that where the mistake is wholly caused by the want of that care and diligence in the transaction which should be used by every person of reasonable prudence, and the absence of which would be a violation of legal duty, a court of equity will not interpose its relief; but even with this more guarded mode of statement, each instance of negligence must depend to a great extent upon its own circumstances. It is not every negligence that will stay the hand of the court. The conclusion from the best authorities seems to be, that the neglect must amount to the violation of a positive legal duty. The highest possible care is not demanded. Even a clearly established negligence may not of itself be a sufficient ground for refusing relief, if it appears that the other party has not been prejudiced thereby." [2 Pomeroy's Eq. Juris. (4 Ed.), sec. 856.]
Appellant cannot be said to have been culpably negligent, he violated no positive legal duty. If he was negligent, his negligence was in a way superinduced by that of the plaintiffs and their attorney in the partition suit; they are therefore in no position to invoke it as a ground of estoppel in this. [Wood v. Oil Co., 220 Mo. App. 1004, 274 S.W. 894.] The mistake, even though the consequence of negligence, can be relieved against without inflicting loss or hardship upon respondents; not to grant the relief prayed would result in positive injury to appellant.
Ample authority is afforded by many well considered cases for granting, in the circumstances shown by the record in this, the equitable relief asked; to refuse it would be a reproach to the administration of justice. [Currier v. Esty, 110 Mass. 536; Bacon v. Bacon, 89 Pac. (Cal.) 317; Dunning Bros. Co. v. Johnson, 190 Pac. (Cal.) 829; Institute Bldg. Loan Assn. v. Edwards, 86 A. 962; San Antonio Natl. Bank v. McLane, 70 S.W. (Tex.) 201; Lankford v. Phillips, 227 Pac. (Okla.) 413.]
The ejectment suit under the pleadings therein was purely an action at law. The pleading on the part of the defendant pleaded neither an equitable defense nor a cross-action asking affirmative equitable relief. The issue as to a Res Adjudicata: mistake of fact inherent in the judgment in the Ejectment. partition proceeding was not presented by the pleadings on either side. Nor was the defendant (appellant here) bound to tender such issue under pain of being concluded with respect thereto by the judgment in the cause. He was entitled to let the judgment go at law and then institute his suit in equity, as he has done. The judgment in the ejectment suit is not res adjudicata as to the matters in issue in this. [Witte v. Storm, 236 Mo. 470, 139 S.W. 384.]
The premises considered, appellant is entitled to have set aside and cancelled the judgment, both interlocutory and final, the order of sale and the sheriff's deed in the partition proceeding in the petition described and set forth, in so far as they relate to the twelve acres alleged to have been included therein by mistake, or affect appellant's title thereto, upon condition that appellant, within a reasonable time to be fixed by the trial court pay to respondents, C.M. and Sadie Landis, or into court for them, a sum of money bearing the same proportion to the whole sum paid by the purchasers at the partition sale as twelve acres bear to the whole number of acres sold at such sale; upon the payment of said sum to said respondents or for them, appellant is further entitled to have contribution with respect thereto from the plaintiffs in the partition suit (defendants in this), and to have judgment herein against each of them for such proportion of the sum just referred to as his share on distribution of the proceeds of the partition sale bore to the whole sum distributed.
The judgment of the circuit court is reversed and the cause remanded to be further proceeded with in accordance with the views herein expressed. All concur.