McDonald v. McDaniel.

and did after his appointment sell the same at a grossly inadequate price of $125, when the land was worth at the time of said sale the sum of $1000, the said Nathaniel B. McDaniel becoming the purchaser and receiving a deed therefor executed by Calvin Brashears, administrator, dated the 23d day of May, 1891; that the said plaintiffs herein, although they wrote letters to Sidney Green inquiring about said land prior to the sale of said land, she, to the knowledge of Nathaniel B. McDaniel and of Fannie McDaniel, one of the defendants herein, answered these letters telling plaintiff they had no lands here, the said Nathan and Fannie McDaniel thereby becoming parties to the deception of these plaintiffs. Each of these plaintiffs at the time said fraudulent judgment was procured by said fraudulent acts as aforesaid were minors, knew nothing of the proceedings at the time, and were therefore unable to make any defense. That the appraisers who appraised the land prior to the sale aforesaid, misunderstanding the purpose of said sale by reason of the misrepresentation of Nathaniel B. McDaniel and the administrator as to the rights of the purchaser under said sale, appraised the land at much less than its real value. That the said Nathaniel B. McDaniel died on or about the year 1902. Plaintiffs therefore pray the court to set aside the judgment of the probate court which was fraudulently procured as aforesaid and to cancel and hold for naught the deed from Calvin Brashears to said Nathaniel B. McDaniel and divest the defendants of the title and vest the same in plaintiffs, and for all proper relief.

The answer admitted the relationship of the parties plaintiff and defendant as charged in the petition; that the owner of the dower interest in the land (Sidney Green) died in January, 1907; that the owner of the note allowed as a demand against the estate of Joseph McDonald purchased the land under a sale made in pursuance of the orders of the probate court

McDonald v. McDaniel.

of Dallas county and received a deed therefor; and that he had died; and that the defendants are his widow and children and in possession of said land; and denied the other allegations of the petition.

The evidence tended to show that the note allowed as a demand against intestate's estate was the unpaid balance of the sum which the maker, Joseph McDonald, had promised to pay one of his wife's brothers for his interest in the land in controversy; that it was originally given for $100, and credits had been entered thereon for sixty dollars.

On the trial of this case, on the 8th of October, 1908, there was testimony tending to show that the value of the land at the time of its appraisement, with a clear title, was about $1000. However, the only one of the appraisers then living testified that it was worth at that time from $400 to $600 "with a clear title." The evidence showed that in making their appraisement of the land the appraisers valued it subject to the dower interest of Mrs. Green. There was no evidence of any irregularity whatever in the proceedings of the county court culminating in this sale.

The court rendered judgment annulling and setting aside the judgment of the probate court made in the course of the administration of said estate, and setting aside the deed made to the purchaser under the sale ordered by that court, and adjudging title to the property described in said deed to be fully vested in the plaintiffs, subject to a lien in favor of defendants for the sum of $125, being the purchase price of said land at the administrator's sale. From that decree the defendants duly appealed to this court.

OPINION.

I. After a careful examination of the petition in this case and the evidence adduced on the trial, we have reached the conclusion that neither will support. the judgment of the lower court. The object of this

McDonald v. McDaniel.

suit was to annul the judgment of a probate court rendered with full jurisdiction of the subject-matter and the parties to be affected thereby. Such judgments are just as conclusive as those rendered by courts of general jurisdiction. [Covington v. Chamblin, 156 Mo. 1. c. 588.] The judgment of a court of competent jurisdiction will not be set aside in equity because it was rendered upon a fraudulent cause of action, forged document, perjured testimony or any other matter to which full defense might have been interposed on the trial, unless such defense was prevented by fraud of the party who recovered the judgment. In order to annul such a judgment, it must be shown that fraud was practiced in its procurement, or that the court was misled by some artifice, trick or imposition to which the party who obtained the judgment was a privy. In all other cases the judgment can only be corrected by appeal, writ of error, or other apt proceeding in the cause wherein it was rendered. [Lewis v. Williams, 54 Mo. 200; Murphy v. DeFrance, 101 Mo. l. c. 157; Payne v. O'Shea, 84 Mo. 130; Hamilton v. McLean, 139 Mo. 678; Murphy v. De France, 105 Mo. 53; Oxley Stave Co. v. Butler Co., 121 Mo. 614; Moody v. Peyton, 135 Mo. 483; Hamilton v. McLean, 169 Mo. 51; Nichols v. Stevens, 123 Mo. l. c. 116; Wonderly v. Lafayette Co., 150 Mo. 635; Donnell v. Wright, 147 Mo. 647; Wabash Railroad Co. v. Merrielees, 182 Mo. 126; Fears v. Riley, 148 Mo. 1. c. 58.]

In the case at bar there is no evidence tending to show that the probate court of Dallas county was deceived or misled or imposed upon in its judgment allowing the demand against the intestate's estate, or in the subsequent order of sale made for the payment of debts, or upon the confirmation of such sale, or at any time during the course of the administration of that estate. Neither is there any evidence that the administrator failed to give the notices required by

McDonald v. McDaniel.

statute in such cases. No complaint is made of any irregularity on the part of the court or the administrator in the procurement of such sale. sale. The contentions made on behalf of plaintiffs are: that the relationship of the administrator and the purchaser and the dowress; the failure of the administrator to notify the heirs in Texas of the proposed sale; the under valuation of the land by the appraisers; the inadequate price paid, constitute, when taken together, sufficient proof that the judgment of the county court was procured by fraud. This is a misconception of the law. Whatever might be the weight of the foregoing or similar circumstances to set aside deeds and contracts inter partes, clearly they are not sufficient to impeach and annul the judgment of a probate or circuit court in the exercise of its statutory and general jurisdiction. For neither singly nor collectively do they afford any evidence of a fraud practiced in the very act of procuring the judgment, or that the court was induced by fraud to render the judgment in question. The established law of this State is, that equity will set aside judgments fraudulent in their obtention, but will not set aside judgments merely because they were rendered upon fraudulent causes of action. The necessary conclusion is that the judgment in this case is reversed. Brown, C., concurs.

PER CURIAM.-The foregoing opinion of BOND, C., is adopted as the opinion of the court. All the judges concur.

242 Sup.-12

Tetwiler v. Railroad.

CHARLES W. TETWILER, Administrator of the Estate of Thomas Allen, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY.

Division One, March 29, 1912.

1. NEGLIGENCE: Master and Servant: Shelter Shanty: Master's Duty to Yardmen. To reach the shelter shanty in defendant's railroad yards, the deceased (a workman in the yards) had to pass through a narrow opening between a string of cars standing on a nearby track. While crossing to reach this shanty at midnight, to eat his lunch therein, he was killed by the negligence of defendant's servants, who moved an engine without ringing the bell. Defendant contends that the deceased while so crossing was engaged upon an errand personal to himself and unconnected with his employment. Held, the shanty, for all the purposes of its installation, was a part of the railway plant, and it was the defendant's duty to protect the men in its use.

2.

3.

4.

5.

: — Running Engine in Switch Yard: Whistle and Bell not Sounded: Evidence. Irrespective of statute, the starting or running of a switch engine in a busy switch yard without ringing the bell or blowing the whistle, is evidence of negligence.

-:

: Assumption of Risk. A servant assumes all the risks which are ordinarily incident to the employment, but his master's negligence is not incident to the employment.

: Contributory Negligence. When a shelter shanty in a railroad yard is so placed that workmen, in order to reach it, have to cross the track where the deceased met death, it comes of poor grace from the railroad company to say that the deceased was guilty of contributory negligence in crossing that track.

Presumption of Due Care: Defenses: Contributory Negligence. The presumption of due care always obtains in favor of a plaintiff in an action for damages for injuries caused by the alleged negligence of another. Contributory negligence is a matter of defense, and the plaintiff need neither allege nor prove that he was without fault. Whenever this defense is made he is entitled to have it submitted to the jury, unless, by his own admission, or by other evidence upon which he depends to fix the liability of the defendant, it is conclusively shown that facts exist that are inconsistent with the presumption of due care.