Lieber v. Lieber

143 S.W. 458, 239 Mo. 1, 1911 Mo. LEXIS 346

• Court: Supreme Court of Missouri
• Decided: December 23, 1911
• Status: Published

Opinions

WOODSON, J.

— The plaintiff instituted this suit in the circuit court of Hickory county, against the defendant, to set aside and have cancelled a certain deed made and delivered February 7, 1905, by one Alexander Lieber, now deceased, to the defendant, Elizabeth Lieber; conveying to her certain real estate, fully described in the petition, and located in said county, for the alleged reason as stated in the }Detition, that said ]and was the homestead of said Alexander Lieber, and that she, the plaintiff, did not join in the conveyance; she also alleging that she, at the date of the conveyance, was his lawful wife, and at the institution of the suit she was his widow.

The petition also charges that a decree of divorce granted by the circuit court of Mercer county, Illinois, in the year 1868, in favor of said Alexander Lieber against her, was procured by fraud, and that thereafter, on October 25, 1868, he was married to Elizabeth Lieber, the defendant.

The petition, in addition to asking to have the deed of conveyance set aside and cancelled, incidentally seeks to have the decree of divorce granted Alexander Lieber against the plaintiff here, the defendant then, also set aside in so far as it affects the real estate in controversy.

The answer put in issue all allegations of the petition, and the parties went to trial without questioning the sufficiency of the pleadings.

The decree was for plaintiff as prayed, and after moving unsuccessfully .for a new trial, the defendant appealed the cause to this court.

The following facts seem to be undisputed, viz.:

During the year 1857, the plaintiff, Margaret Lieber, and Alexander Lieber were lawfully married in the city of St. Joseph, Missouri, and lived together as husband and wife, in this State, until the latter part of the year 1865 or the first of 1866; that they then went to Quincy, Illinois, where they separated; that on October 9, 1868, Alexander Lieber secured a decree of -divorce in the circuit courf of Mercer county, Illinois, against Margaret Lieber, the present plaintiff, on the ground of desertion, based upon publication, regularly had, against her as a non-resident; that thereafter, on October 25, 1868, Alexander Lieber married the defendant Elizabeth Lieber; that in 1884 he acquired the land in’ controversy, and continued to occupy it as a homestead up to the time of his death; that prior to his death, in 1905, he, for a good, as distinguished from a valuable, consideration, conveyed the-land to the defendant, but he and the defendant continued to live on eighty acres of it until . his death on February 13, 1907; that the plaintiff knew, for a period of fifteen years prior to bringing this suit, that Alexander Lieber had obtained the decree of divorce from her, and for two years or more prior to his death she lived within a mile of the residence of said Alexander Lieber and the defendant, but took no action whatever to avoid said decree of divorce, or to assert any claim against the said Alexander Lieber, until seven days after his death, on which date she brought this suit.

Counsel for plaintiff offered and the court admitted over the objections of the defendant, the testimony of the plaintiff to the effect that she was and had been for many years a resident of the State of Illinois prior to the time the order of publication was issued and published, notifying her of the bringing of said divorce suit, on the ground of non-residence.

Counsel for plaintiff also offered, and the court admitted over the objections of the defendant, the testimony of Ben and Ed Lieber, the sons of Alexander Lieber and the plaintiff by the first marriage.

At the time of their parents’ separation, Ben was only five years of age, and Ed could not have been over seven. Their testimony was to the effect, that Alexander Lieber had not been a resident of the State of Illinois for one year immediately prior to the institution of this suit for divorce from his- wife; that after the plaintiff and their father separated in Quincy, Illinois, he took the children, including Ben and Ed, and Elizabeth Dietz, the defendant, and wandered around for a short time in that State, and then went to "Warsaw, Illinois, where he made his residence for a period of two years; that about this time, he took another trip through Missouri, remaining some three or four months at Perry, and became a resident thereof; that he then renewed his travels over other States, lasting several weeks, after which he returned to Mercer county, Illinois, where the suit for divorce was brought, and the decree rendered.

They also testified in effect that they heard Alexander Lieber state upon one occasion that he had paid some man forty dollars to swear falsely for him in the divorce case; however, the proceedings had in the divorce case, which were introduced in evidence in this case, show Alexander Lieber himself'was the only material witness who testified in his own behalf.

These two sons also testified to a great mass of matters tending to show that Margaret Lieber, the defendant in the divorce proceedings, and not Alexander Lieber, the plaintiff therein, was the innocent and injured party, but none of this testimony tended to show fraud on the part of the latter in the procurement of the decree for divorce.

The defendant in the case at bar, Elizabeth- Lieber, as previously stated, objected to the testimony of the plaintiff herein, Margaret Lieber, for the reason that it related to the cause of action which- was in issue, on trial, and decided in the divorce case of Alexander Lieber against her, he being dead, section 6354, Revised Statutes 1909 disqualified her as a witness.

The defendant also objected to the introduction of the testimony' of the plaintiff in this case, as Well as that of her two sons, Ben and Ed, for the reason that the decree of divorce rendered by the circuit court of Mercer county, Illinois, divorcing Alexander Lieber from Margaret Lieber, which is fair and regular on its face, cannot be attacked in this collateral manner.

The defendant, in the case at bar, in order to sustain her defense, introduced in evidence the decree of divorce, which is fair upon its face, together with a full transcript of the proceedings, duly authenticated under the acts of Congress, which was rendered, entered and had in the circuit court of said Mercer county, divorcing Alexander Lieber from Margaret Lieber.

Besides tbe finding and decree of tbe circuit court of Mercer county that Alexander Lieber was a 'resident of tbe State of Illinois for a period of one year prior to the institution of tbe divorce suit, there is contained in tbe voluminous record of tbis one-sided trial (one-sided, because of tbe death of Alexander Lieber) some additional evidence tending to show that be was a bona fiée resident of Illinois.

I. Tbe first proposition presented by tbis record for tbe court’s determination is tbe ruling of tbe trial court admitting in evidence tbe testimony of Margaret Lieber, tbe plaintiff in tbe case at bar, who was tbe defendant in tbe divorce proceedings of Alexander .Lieber, bad against her in the circuit court of Mercer county, Illinois, touching the cause .of action, which was there in issue, on trial and adjudicated, and since which time Alexander Lieber, tbe other party to that cause of action, having died.

In substance, section 6354, Revised Statutes 1909, disqualifies any person from testifying as a witness in a cause, regarding any matter involved therein, when tbe other party thereto is dead or insane.

The wisdom and justice of tbis statute at once suggests itself to all fair-minded persons, namely, that when death or insanity has closed tbe lips of one of tbe parties to the contract, or cause of action, in issue and on trial, then tbe law should bold mute tbe tongue of tbe other.

At an early day, tbis court, in tbe case of Bradley v. West, 68 Mo. 69, erroneously held that when one party to a contract was dead, and that subsequently thereto, when said contract became involved in a cause of action, in issue and on trial, between tbe surviving party thereto and a stranger, tbe statute mentioned did not prohibit tbe survivor from testifying regarding tbe contract as against tbe stranger. In other words, that case held that this statute did not prohibit the grantee Bradley, in a deed of conveyance, from testifying in á suit in ejectment brought by him against West, a stranger, as to the validity of that deed, through which, he, the plaintiff, deraigned title, notwithstanding the fact that Horton, the grantee in the deed, was dead.

Shortly after the delivery of the opinion in the case of Bradley v. West, supra, the same question there decided, again came before this court in the case of Chapman v. Dougherty, 87 Mo. 617. In this case the injustice and error of the former ruling was pointed out, and we there, in express terms, overruled the case of Bradley v. West, and correctly held that the disability imposed by this statute upon a witness who is one of the original parties to a contract or cause of action, in issue and on trial, where the other party thereto is dead, and the survivor is a party to the suit, is coextensive with every occasion where such instrument or cause of action may be called in question.

Because of the known and recognized ability and great legal learning of the distinguished jurist who wrote the latter opinion, and who honored this court as a member thereof for thirty years, I feel fully justified in quoting therefrom his clear, terse and able remarks bearing upon this question. After stating the case, and showing what the contract or cause of action was, which was then in issue and on trial, he said:

“All these things were put in issue and necessarily involved therein; and the defendant was one of the original parties to the contract or deed which evidenced the title whereon plaintiffs relied, without which their title could not be established or maintained, .and the other party to that contract was dead; that contract or deed was thus necessarily in issue, constituting as it did the highest evidence of ownership, and consequently the most material fact which went to make up plaintiffs’ cause of action; that cause of action was in issue and on trial, and without proof of the validity of that deed in consequence of» a delivery thereof, plaintiffs had no standing in court. The importance of the defendant’s testimony, denying, as it did, the validity of the deed by reason of the fact, to which he testified, that it had never been delivered, is, therefore, most obvious; since that testimony struck at the very foundation of plaintiffs’ cause of action. Was his testimony admissible? 'The reason of the statutory prohibition is the prevention of one person testifying where death has sealed the lips of his adversary.’ -[Fulkerson v. Thornton, 68 Mo. 468.] Wharton, when speaking of similar statutory prohibitions, says: 'The reason of this exception is, that when there is no mutuality there should not be admissibility; i. e., when the lips of one party to a contract are closed by death, then the other party should not be heard as a witness. . . . Much, however, as the statutes may differ in words, they are the same in purpose. That purpose is to provide that when one of the parties to a litigated obligation is silenced by death, the others shall be silenced by law.’ [1 Whart. on Ev., sec. 466.]

■ ''And this view has been reiterated by this court in various forms. Thus, Wagner, Judge, says: 'The object and purpose of the statute was undoubtedly to put the two parties to a suit upon terms of substantial equality in regard to the opportunity of giving testimony. The proposition may be taken as a general one, therefore, that where parties have contracted with each other, each may be supposed to have an equal knowledge of the transaction, and both, if living and sane, are allowed to testify. But if one is precluded by death or insanity, the other is not entitled to the undue advantage of being a witness in his own case.’ [Looker v. Davis, 47 Mo. 140.] And in Stanton v. Ryan, 41 Mo. 510, where surviving partners brought an action upon a quantum meruit, and the defendant set up as a defense a special contract with, the deceased partner, the remaining partners were permitted to testify touching the facts constituting their cause of action, and so also was the defendant; hut he was not permitted to testify respecting the special contract, which, if enforced, would, it seems, have defeated the action of the plaintiffs; and this ruling was affirmed by this court, Wagner, Judge, remarking: ‘The suit was not instituted on the contract; it was denied that any contract existed; the surviving plaintiffs knew nothing about it; .and to permit Ryan, by his own testimony, to come in and set up, and prove its terms, when Stanton’s lips were sealed by death and could not be there to contradict, qualify or explain his statements, is at war with justice, and certainly not authorized by law.’

“In Vermont, a State possessing statutory provisions identical with our own, the grantee of the heirs of an intestate through the administrator of the estate, brought ejectment against the defendant, who had held the land sued for prior to the death of the intestate. The plaintiff claimed this possession was not adverse; the defendant claimed the contrary, and he was admitted by the lower court to testify in support of his claim; but this ruling was reversed by the Supreme Court. Pierpont, C. J., after quoting the statute, among other things, said: ‘The court below seems to have proceeded upon the ground that the beneficial operation of this statute is to be limited to cases where the estate or the legal representatives of the deceased party are in interest. The statute does not in terms so limit it. . . . The suit is brought in the name of the administrator to establish the title of the deceased party, for the benefit of the grantee of the heirs to the estate. Is there any reason why the benefit of this statute should be given to the heirs of the estate, and denied to their grantee, the action being in the same form? The object of the statute was to guard against the danger of false testimony by the survivor. The danger is just as great in one case as in the other. The grantee or assignee of the deceased party, or his representatives, is not supposed to know any more of the nature of the transaction between the original parties than do the heirs or administrator of the deceased party. Ordinarily he knows less. The rights of the assignee are just as sacred in the eye of the law, as the rights of the heirs. The protection of the statute is just as necessary in one case as in the other, and no evil can result from its application in one case that will not follow its application in the other. . . . The statute makes the death of one party to the cause of action in issue the ground of excluding* the survivor, and not the fact that the estate of the deceased party has an interest in the result of the suit. ’ [Hollister v. Young, 41 Yt. 157. The doctrine of this case was afterwards affirmed in the case of Insurance Co. v. Wells, 53 Yt. 14, in which all the prior oases in that State on the point were commented on, inclusive of that of Bank v. Schofield, 39 Yt. 590', in which the opinion of the court was also delivered by Piekpont, C. J.]

“It will readily be observed that Hollister’s case, supra, fully sustains the position heretofore taken as to what constitutes, in ejectment suits, the cause of action in issue and on trial; and the inadmissibility of a party thereto, his adversary being dead, to testify in the action. ■ This court, on several occasions, has made similar rulings where the title to land in one form or another, was in issue. Thus, in Martin v. Jones, 59 Mo. 181, where one McCarty had sold and conveyed land to one Williams, and afterwards conveyed the same by deed of trust to Jones as trustee for Austin, and both Jones and Austin had notice of the former deed, and the heirs and representatives of Williams filed their petition to cancel the deed of trust, and to enjoin a sale thereunder, and the answer denied the execution of the deed to Williams, and the fact of notice, it was held by this court that McCarty was incompetent as a witness to controvert by his testimony his deed to Williams; Vories, J., remarking: ‘Whether either of the matters in issue, as above set forth, could be called the contract or cause of action in issue and on trial, within the meaning of the statute, is difficult to determine; but if the object in introducing the defendant McCarty as a witness was to .elicit evidence from him, the tendency of which would be to affect or invalidate the deed from him to Williams, he would most certainly be incompetent for that purpose, as the other party to that contract was dead.’ So, also, in Poe v. Domic, 54 Mo. 119, where a suit was brought to set aside, and adjudge null, a deed made by Poe to his codefendant, it was ruled that Poe was incompetent as a witness in respect to the execution of such deed. And in Sitton v. Shipp, 65 Mo. 297, it was ruled in a proceeding' for specific performance, that a plaintiff witness, where the other party to the contract was dead, was incompetent to prove either the contract itself or acts of part performance thereunder.

“In quite a recent case, that of Hughes v. Israel, 73 Mo. 538, it was ruled in .an action of ejectment where the plaintiff claimed under a deed from defendant to his son, since deceased, 'and defendant claimed under a verbal contract, that defendant was not a competent witness to prove such contract. In that case, as in this, it was contended that the cause of action in issue and on trial was the unlawful withholding by the defendant of the possession of the premises from the plaintiff; and that as both the parties to the controversy were living, and parties to the suit, defendant was, therefore, competent as a witness to any fact in the suit. The scope of the issues on trial was not, however, passed upon, but the intimation was strongly given that if the answer had been simply a-general denial, that then the position as to the competency of the defendant as a witness, would have been tenable. To this intimation I cannot yield my assent; for I must confess my inability to discover how parties to a legal controversy can so mould their pleading’s as to confer competency on a witness where the law not only fails to bestow it, but more than that, positively declares his absolute incompetency.

“If I am correct in my views, heretofore expressed, as to the scope of the issues in an ejectment suit; as to its embracing within its issues the title, and ■all that such term implies, then it follows that defendant was incompetent as a witness to overthrow by his testimony any instrument to which he was one of the original parties, such instrument being the muniment of title on which the plaintiffs rely. Any other doctrine than the one here asserted, would place it in the power of every grantor in an action of ejectment where the grantee is .dead, to overthrow by his oath his. most solemnly executed conveyance on the specious plea that such instrument was not embraced within the issues of such a suit. The defendant in this case confidently relies on Bradley v. West, 68 Mo. 69, as sustaining his position as to the narrow scope embraced in the issues of an action of ejectment; and that measured by the standard of that case, defendant was a . competent witness. In- that case, the grantee in the deed was permitted to testify to facts which gave validity to the very deed under which he claimed, the grantor therein being dead. It is true, in that case, the defendant was a stranger to the deed, but I am not able to see any distinction between a case of that character, and one where the heirs of either the grant- or or grantee are parties to the litigation. The statute certainly makes no such distinction; the disability of one of the original parties to the contract or cause of action in issue and on trial, where the other party is dead, and the survivor is a party to the suit, is coextensive with every occasion where such instrument or cause of action may be called in question; at least tbe statute lays down but tbe one rule, .and that should be the guide. All the dangers and all the mischief which can arise from the false testimony of the surviving party, will be incurred as well in the case where the heirs of the deceased party bring suit, and rely on the contract, etc., as when <& stranger does the like. Hollister’s case, supra.

“Indeed, the rule in Bradley v. West, tends to render the titles of heirs unmarketable in their hands; for under that rule, so soon- as they convey to a stranger, he must needs run the gauntlet of anticipatory perjury, and take the risk of seeing any link in his chain of title swept away by the bare oath of some dissatisfied party whom he may find it necessary to sue, or whose good pleasure it is, mayhap, to sue him. '

“For these reasons, I am of opinion that the rule laid down in that case is not law; should no longer be followed, and that the judgment of the lower court should be reversed, and the cause remanded, with directions to proceed conformably to this opinion. All concur. ’ ’

The same question came before this court again in the case of Meier v. Thieman, 90 Mo. 433. The facts of this case materially differ from those of the two former only in that Adolphus Meier, the real party in interest, was not a party to the record, while Alwind Meier, the party to the record, was only nominally interested in the subject-matter of litigation. In discussing this question the same distinguished jurist used this language:

“II. There is but one other question presented by the record worthy of examination and that is the competency of Adolphus Meier as a witness in the cause. Section 4010, after removing common-law restrictions prohibiting witnesses from testifying, contains this proviso: 'Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, . . . the other party shall not be permitted to testify in his own favor.’ What is meant in this clause by the words ‘the other party?’ I think it is very clear that they refer, and can only refer, to the other party to the original' contract or cause of action. This is certainly required by the grammatical construction of the sentence, and certainly such a construction would be most natural and obvious. This view of the proviso has been twice taken by this court. Thus in Ring v. Jamison, 66 Mo. 424, Henry, J.,-speaking for the court, said: ‘In Angell v. Hester, 64 Mo. 142, this court said: “We take the true distinction to be, that where one of the original parties to the contract or cause of action in issue and on trial is dead, the other party to such contract or cause of action will not be permitted to testify to any fact which he would not have been permitted to testify to at common law; that where one of the parties is dead, the other party stands, in regard to testifying, precisely as if the statute allowing persons to testify (parties was intended) had not been enacted.” The statute is in derogation of common law. If both parties to the contract or cause of action, are alive, they can testify as other witnesses, . . . but not so if one be dead. The substance of the provision is, that if both parties are alive, both may testify, but if one be dead, then the common law is in full force as to the competency of the survivor as a witness in his own favor. ’

“The statute contains no intimation that the ‘other party’ referred to is necessarily a party to the record. The language of the statute is ‘the other party,’ i. e., the other original party to the contract or cause of action shall not be admitted to testify in his own favor, where death has precluded the other original party from an equal opportunity. Whether party to the record or not, makes no difference as to the statutory incompetency of the witness; he is prohibited from testifying in his own favor in any case whatsoever where the other original party to the contract or cause of action in issue and on trial is dead. The letter of the statute makes no distinction as to the status of the witness on the record; the rule of his exclusion is as broad as the contract or cause of action in issue and on trial, and his testimony in his own favor. And the reason, policy and spirit of the rule keeps pace with its letter. This is tersely stated by Wharton: ‘The reason of this exception is, that where there is no mutuality there should not be admissibility, i. e., when the lips of one party to a contract are closed by death, then the other party should not be heard as a witness. . . . Much, however, as the statutes may differ in words, they are the same in purpose. That purpose is to provide that when one of the parties to a litigated obligation is silenced by death, the others shall be silenced by law.’ [1 Whart. Ev., sec. 466.]

“In this case the cause of action in issue and on trial was: Who was entitled to the possession of the premises and the rents arising therefrom? It is easy to see, therefore, that Adolphus Meier was testifying as much in his own favor, and was as much a gainer by the result, as if he had been nominally as well as really a party to the record. He, in truth, was the only real party in interest; for it was a matter of no concern to the defendant tenant to whom he paid the rent, or whom he acknowledged for his landlord. If suit had been brought by the heirs of Thomas J. Meier against Adolphus Meier for possession of the land, he certainly would not, under the recent ruling in Chapman v. Dougherty, 87 Mo. 617, have been permitted to testify in his own behalf, as he was permitted to do in the case at bar,, and the same rule should apply in the one case as in the other. The rules of evidence should not, like the color of the chameleon, change because of their fortuitous surroundings. In a word, if Adolphus Meier is forbidden to testify in his own favor where he is a party, to the record, he should be equally .forbidden to testify, though not a party to the record, when the results of his testimony in his own favor would be equally beneficial to him as if he were such party. ‘The reason of the law is the ' life of the law. ’

“III. Again, as Adolphus Meier was interested in the event of the suit, as he would have been liable over to the defendant tenant for whatever sum the latter had paid him as landlord, in the event that the plaintiff had recovered in this action, he was incompetent as a witness at common law. [1 Greenl. Ev., secs. 392, 386, 390.] And under the rule laid down in Angelí v. Hester, and Ring v. Jamison, supra, he was, for that reason, incompetent to testify in the present instance. ’ ’

These cases have been approved in express terms in scores of opinions delivered by this court. Among the later are Weiermueller v. Scullin, 203 Mo. 466, l. c. 472; Bishop v. Brittain Investment Co., 229 Mo. 699.

I find no case in which this question has been more ably and clearly treated than has been done in the case last cited. In that case the plaintiff brought the suit for the admeasurement of dower, in lands belonging to the defendant company, which it purchased from Dr. Golin E. Bishop during his life. Plaintiff claimed that she was his common wife, and after his death she brought that suit. One of the contested questions was the marriage. She claimed that there was a common-law marriage, and the defendant denied it. The plaintiff was offered as a witness in her own behalf, for the purpose of -proving the marriage, whereupon counsel for the defendant objected to her testifying for the reason that Dr. Bishop, the other party to the alleged contract of marriage, which was in issue and on trial, in the suit for dower, was dead, and therefore section 4652, Revised Statutes 1899', the same as 6354, Revised Statutes 1909, disqualified her as a witness. That objection was sustained and was assigned here as error. This court, in speaking through Lamím, J., on page 721, said:

“II. Was plaintiff a competent witness? The suit was in form to admeasure dower. The gist of the essential averments of the petition w,ere: (1) marriage, (2) seisin, (3) death, (4) dower — the latter a sequence of the three former (Vide, R. S. 1899, sec. 2933). Such was the rule at common law and such it is in this State. I have read that Robert Toombs, appearing for a widow deforced of her dower, arose at the bar of the Supreme Court of Georgia and condensed his whole argument into the oracular and exclamatory utterance: ‘Marriage! Seisin! Death! Dower!’ In our ease seisin of an estate of inheritance and death are admitted. Marriage is claimed some months before the deed of trust (the root of defendant’s title) was executed. Marriage as of that date was disputed. It resulted that marriage or no marriage before the execution of the deed of trust was the sole issue below. A contract to marry and a performance of that contract are asserted by the lady. Her case stands or falls only as she proves or fails to prove those two vital facts. To prove the contract and performance she took up the cudgels in her own behalf by going on the stand. Obviously her testimony was material. To use the favorite expression of Lord Kenyon: ‘It hit the bird in the eye,’ provided she was competent to testify. The question is anxious and rests, on statute law.

“Section 4652,.Revised Statutes 1899, ordains, inter alia, that: ‘In actions where one of the original parties to the contract or cause of action in issue and on trial is dead . . . the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor. ’

“We have often construed that section. Its general language breeds difficulty in applying it to the varying phases of litigation, and, it would seem, we have not always been able to hold a steady and uniform voice in applying it. There may be wrinkles in the statute not yet erased by- the smoothing iron of justice, for there is an intense human factor in its practical application appealing to different judges in a different way.

“The broad objects of the statute are: first, equality; second, to close the door to false swearing. To further that end we have assumed the reason of the statutory rule to be as laid down by Dr. Wharton, viz., That when the lips of one party to a contract are closed by death then the other party should not be heard as a witness.’ [Chapman v. Dougherty, 87 Mo. l. c. 621.] The purpose running through all such statutes 'is to provide that when one of the parties to a litigated obligation is silenced by death, the other shall be silenced by law.’ [1 Whart. on Ev., sec. 466.] In applying the statutes it has been ruled that where, as in ejectment, the issue was title and one of the parties to a deed necessary to establish it was dead, the living party could not testify in denial of the validity of the deed (Chapman v. Dougherty, supra); nor to sustain a contract, which, if established, would defeat ejectment (Hughes v. Israel, 73 Mo. 538); nor to establish in ejectment the contents of a lost deed (Messimer v. McCray, 113 Mo. 382); nor to establish the contract in a suit for specific performance (Teats v. Flanders, 118 Mo. 660); nor to acts of performance (Sitton v. Shipp, 65 Mo. 297); nor to reform a contract by supplying a term omitted by mistake, accident or oversight (Smith v. Smith, 201 Mo. 533).

‘ ‘In interpreting the statute,.exceeding care should be taken to steadily apply the main and golden rule of construction, viz., that not only the words but the spirit and purpose of the law should be kept in view, so that the mischief struck at should be retarded, on one hand, and the remedy contemplated should be advanced, on the other.

“Observe, the statutory rule is one of evidence, hence the form of the action in which the rule is invoked is of no consequence in determining whether the rule is applicable. So, while the form of this action is dower, yet dower hinges on a contract of matrimony and its performance. As said, that was the issue tried. Matrimony was ‘the contract ... in issue and on trial. At bottom it was the very cause of action in issue and on trial.’ Therefore, the mischiefs under the ban of the statute gave birth to a situation to be narrowly eyed. That situation vehemently calls for the statutory interdiction. This, because the danger of perjury in this character of case is enhanced by a combination of powerful impulses, viz., to cleanse her social status from a scarlet stain of sexual impurity, and, with the same stroke, line her pockets. Prestige! Money! The love of both — master passions of the human breast — in full cry. His legs go far and fast, who is running to a goal of gain and honor. Not only so, but, Bishop being dead, the danger of exposure in false swearing is reduced to a minimum and may invite the hazard of the experiment.

“Speaking of such a contract, Alvey, J., in Denison v. Denison, 35 Md. l. c. 381, used language meeting our unqualified approval, viz.: ‘These loose and irregular contracts, as a general thing, derive no support from morals or religion, but are most generally founded in wanton and licentious cohabitation.’

“The case, then, does not persuade us to stickle on words or stick in the hark in applying the statute. The rather we are inclined to consider it a typical one in which to apply the statute with rigid vigor.

“Referring to an Illinois law, having the same purpose as our own, the Supreme Court of that State, through Mr. Justice Scott, In re Estate of Mark H. Maher, 210 Ill. l. c. 170, said: ‘This petitioner seeks to swear that she is heir, and thereby establish the relation which, when not conceded, must be established by the judgment or decree of a court before she can testify. If she is competent, then any woman with whom a man has illicitly and openly lived and cohabited, both being then unmarried, has it in her power, after his death, to establish the fact that she is his widow by testifying that a contract of marriage was entered into by him with her when they were alone, in pursuance of which the cohabitation occurred, for none can deny her. It is precisely such an evil that the Legislature intended to prevent by the enactment of section 2 of the chapter on evidence.’

“The question has received consideration by our courts of appeal. [Imboden v. Trust Co., Ill Mo. App. 220; Collard v. Burch, 138 Mo. App. 94.] Our learned brethren of both- those benches with one accord agree that the statute applies to a case in which the marriage was disputed and its existence was the very lis mota. [See, also, Hopkins v. Bowers, 111 N. C. 175; Sorensen v. Sorensen, 56 Neb. 729; Shorten v. Judd, 56 Kan. 43.]

“We are not confronted with a contrary ruling in aiiy case decided by us in which the point was held in judgment. Cases may be found in which the alleged widow testified without objection. They are, of course, without authority. .There are others in which the marriage was not disputed and was not the issue on trial, where the widow was permitted to testify to the fact of marriage. That is a mere rule of conveniencé to avoid cumbering the record on non-controverted and collateral matter. Such case, on principle, differs vastly from the case at bar.

“Defendant’s objection to the competency of plaintiff as a witness should have been sustained.”

In the case at bar, the plaintiff’s right to a homestead in the lands of Alexander Lieber, depends just as much upon the existence of the marital relation between her and him, at the date of his death, as did Mrs. Bishop’s right to dower in the lands of the Investment Company “hinge on a contract of matrimony and its performance” with Dr. Bishop. And as was there said by Judge Lajum, “that was the issue tried;” and here, the question tried is, was Margaret Lieber, the wife of Alexander Lieber at the time of his death?

If he was divorced from her at that time, then she was not his wife, and she was no more competent to testify regarding the divorce, proceedings than was Mrs. Bishop qualified to testify regarding her alleged marriage to Dr. Bishop.

That the decree for divorce was granted in the case of Alexander Lieber against Margaret Lieber, there is no question. In fact, plaintiff’s amended petition, and entire case, proceeds upon the theory that the decree was granted and valid upon its face, and for that reason she seeks to have it set aside and that it was procured by fraud.

Now concede, for the sake of the argument, that this decree is impeachable in this character of a proceeding, which I deny, nevertheless, it being fair and regular upon its face, it is entitled to full faith and credit until impeached and set aside upon competent testimony. That being unquestionably true, it cannot be legally said that Margaret Lieber was the wife of Alexander Lieber at the time of his death.

The only difference between the two cases is the fact that the contract of marriage, which was one of the constituent elements of the cause of action in issue and. on trial in that case, if entered into, made Dr. Bishop and the plaintiff there husband and wife, and consequently entitled her to dower; while in the case at bar the decree of divorce, it is admitted, destroyed the marital relation which existed between Alexander Lieber and Margaret Lieber, and as an incident thereto destroyed her right to a homestead in his lands, until, at least, the same is set aside and for naught held, which is sought to be done in. this case, and that decree, therefore, being one of the necessary constituent elements of plaintiff’s case, is equally in issue and on trial here, as was the marriage contract in the Bishop case, and consequently since Alexander Lieber, the other party to that cause of action is dead, Margaret Lieber the surviving party thereto, under the authorities cited, is disqualified as a witness to testify in this cause, touching the impeachment of that decree.

We are, therefore, clearly of the opinion, that the plaintiff was not a competent witness in this case, to testify, as she did, to matters regarding or tending to impeach the decree of divorce rendered by the circuit court of Mercer county, Illinois, in the case of Alexander Lieber against Margaret Lieber, the defendant there, and the plaintiff here.

II. This brings us to the consideration of the principal question presented by this record, and that is the validity of the decree of divorce rendered by the circuit court of Mercer county, in the ease of Alexander Lieber against Margaret Lieber, the defendant there, and the plaintiff in the case at bar.

Preliminary to the consideration of that question, it might be well to state that the judgments and decrees of courts of other States are, under the Constitution of the United States, entitled to full faith and ■credit in the courts of Missouri and are conclusive as to all questions involved and adjudicated there.

The general rule upon that subject is thus stated in 13-Am. & Eng. Ency Law (2 Ed.), p. 977, viz.: ‘ ‘At the present time it is well settled as a general rule that a judgment rendered in one State or country by a court of competent- authority and which has the necessary jurisdiction, is absolutely conclusive as to the merits of the controversy which it settles, and to that extent is binding upon the courts of all other States and countries, and will be recognized by them as conclusive evidence of the facts adjudicated.” And continuing, on page 978, the same author states that “the principle upon which foreign judgments are recognized and enforced is that when a court of competent jurisdiction (for instance) adjudges a sum of money to be paid by one person to another an obligation to pay it is created thereby, which the courts of other countries should enforce, and that a person who has had one fair opportunity to try his cause before a competent tribunal, and has availed himself of it, should acquiesce in the result.” In support of the rule above announced, and the reason upon which it is bottomed, the author cites hundreds of cases, some of which a,re from the Supreme Courts of the various States, and others from the Supreme Court of the United States, and from, courts of other countries.

At first, this general rule was founded upon comity alone, between the various States and then other countries, without any fixed and definite law upon the subject, and consequently, so variant and conflicting became the rulings of the courts of the various States and other countries upon the subject, that the people of this country undertook to remedy that great evil and established a uniform rule upon the subject, by adopting section 1, of article 4, of the Constitution of the United States, which reads: “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof. ’ ’

It would be a supererogation of labor to collect and cite the cases holding that the constitutional provision quoted is binding and controlling upon the courts of this State, as it is upon the courts of the various States of the Union.

In treating this subject the author, in 13 Am. & Eng. Ency. Law (2 Ed.), p. 983, says: “This controversy was ended by an adjudication of the Supreme Court of the United States, which, though apparently turning on a mere matter of pleading, in reality went deeply into the subject and settled the rule that, under the Federal Constitution and statutes, a judgment rendered by a court of one State, has the same effect in every other State as in the State where it was rendered, and is conclusive on the merits of the controversy.” Citing Mills v. Duryee, 7 Cranch (U. S.), 481. Continuing, the author says: “And this is now universally recognized as the correct doctrine.” Citing hundreds of cases from the Supreme Court of the United States, and the courts of the last resort of the various States.

This constitutional provision, as interpreted by the Supreme Court of the United States, and the courts of last resort of the various States of the Union, recognizes that it ha,s certain well-known limitations or exceptions, naanely, that such a judgment may be impeached and set aside for fraud practiced upon the court, in the very act of procuring the judgment, and where the defendant was not legally served with process.

In each of those instances, those facts appearing, such a judgment of a court of another State may and should, in a proper proceeding, be set aside and for naught held, by the courts of this State, in the same manner, and to the same extent, as if' the judgment under like conditions had ¡been rendered by a court of this State.

If we correctly understand the position of counsel for the plaintiff, they insist that the decree rendered by the circuit court of Mercer county, Illinois, divorcing Alexander Lieber, is void for both of the reasons previously mentioned, namely, first, that the plaintiff therein perpetrated a fraud upon that court in the actual procurement of the decree; and, second, that the defendant therein was not legally served with process.

We will consider those two propositions in the order stated.

(a) The law is well settled here and elsewhere, that a court of equity will in a direct proceeding grant relief against a judgment or decree procured by fraud provided the fraud is established by clear, strong and cogent evidence, leaving no room for reasonable doubt of its existence; and provided further, that the fraud thus perpetrated was exercised in the very procurement of the judgment complained of, and was a fraud upon the court, as well as upon the other party to the suit.

The general rule upon that subject is well stated in 16 Am. & Eng. Ency. Law (2 Ed.), p. 380, in the following language: “It must be borne in mind, however, that the fraud which will authorize a court of equity to-enjoin a judgment.or decree is fraud practiced in the procurement of the judgment or decree itself. A court of equity will not enjoin the judgment merely because it is founded on a cause of action vitiated by fraud, unless the interposition of the fraud as a defense has been prevented by fraud of the opposite party.”

The same rule has been announced by this court in numerous cases.

In Murphy v. De France, 101 Mo. l. c. 157, Black, J., in speaking for the court used this language: “A judgment procured by fraud may, of course, be set aside in equity, but tlie fraud because of which such relief is granted is one in procuring the judgment. As has been said by this court: ‘Courts of equity will not vacate or enjoin a judgment merely based upon a cause of action which may be vitiated by fraud, for this is a valid and meritorious defense, which may be interposed, and unless its interposition is prevented by fraud of an adversary, ... it cannot be asserted against a judgment, either foreign or domestic. ’ [Payne v. O’Shea, 84 Mo. 129.] ‘The fraud,’ says Freeman, ‘for which a judgment may be vacated or enjoined in equity must be in the procurement of the judgment. If the cause of action be vitiated by fraud, this is a defense which must be interposed, and unless its interposition be prevented by fraud, it cannot be asserted against the judgment.’ [Freeman on Judg. (3 Ed.), sec. 489.] Courts in equity do not grant such relief for the purpose of giving a defeated party a 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 excusable mistake or unavoidable accident. [Freeman, Judg., sec. 486.]”

In Payne v. O’Shea, 84 Mo. l. c. 133, the court used this language: “In this State a proceeding in the nature of a bill in equity will lie to enjoin and avoid a domestic judgment obtained through fraud, and like remedies exist and may be resorted to against judgments obtained in other States, when sued on in this State. [Freeman on Judg., sec. 561; High on Inj. (2 Ed.), sec. 69.] The fraud, however, for which a judgment will be enjoined must be in the procurement of the judgment. And courts of equity will not vacate or enjoin a judgment merely based upon a cause of action which may be vitiated by fraud, for this is a valid and meritorious defense, which may be interposed, and unless its interposition is prevented by fraud of an adversary, as was the case in. Ward v. Quinlivin, 57 Mo. 426, it cannot be asserted against a judgment, either foreign or domestic.”

In the case of Hamilton v. McLean, 139 Mo. 678, the plaintiff brought suit in partition against the defendants, claiming to be one of the heirs of a certain deceased person to a tract of - land; the defendants presented and introduced in evidence a deed from the deceased, conveying to them the entire interest therein. It was contended in that suit, that said deed had been obtained by undue influence, and had been concealed and recorded on the day of the decedent’s death. In that case, the defendants recovered judgment. Thereafter, a second suit in equity .(the one last cited) was brought to set aside the former judgment on the ground that the deed mentioned in the first suit was a forgery, and alleging that the facts to establish that fact were discovered since the rendition of the judgment in the partition suit. A demurrer was filed to the petition, for the reason that it did not state facts sufficient to constitute a cause of action, which was by the trial court sustained, and plaintiff appealed. In discussing that question, this court on page 685, said:

“Whatever the rule may be elsewhere, it is well settled in this State in order that a judgment may be set aside for fraud in a direct proceeding for that purpose it must be made to appear that fraud was practiced in the very act of obtaining the judgment. [Lewis v. Williams, 54 Mo. 200.]

“Payne v. O’Shea, 84 Mo. 129, was a bill in equity to enjoin and restrain the enforcement of a judgment obtained before a justice of the peace and asking for a settlement and accounting between the parties, and it was held that while a judgment may be set aside in equity for fraud, the fraud must be in the procurement of the judgment, and not merely fraud in the cause of action on which the judgment is founded, and which could have been interposed as a defense, unless its interposition as a defense was prevented by the fraud of the adverse party. That case was followed and approved in Murphy v. De France, 101 Mo. 151, in which is quoted with approval the following from Freeman on Judg. (3 Ed.), sec. 489: ‘The fraud for which a judgment may be vacated or enjoined in equity must be in the procurement of the judgment. If the cause of action be vitiated by fraud, this is a defense which must be interposed, and unless its interposition be prevented by fraud, it cannot be asserted against the judgment. ’ The court also said ‘ courts of equity do not grant such relief for the purpose of giving a defeated .party a 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 excusable mistake or unavoidable accident.’ [See, also, Murphy v. De France, 105 Mo. 53; Oxley Stave Co. v. Butler Co., 121 Mo. 614.]

“The same question was before the Supreme Court again in Nichols v. Stevens, 123 Mo. 96, and it was held that in order that a judgment may be set aside upon the ground of its having been obtained by fraud it must appear that the judgment was ‘concocted in fraud; that fraud was practiced in the very act of obtaining the judgment. The fraud in such case must be actual fraud as contradistinguished from a judgment obtained on false evidence or a forged instrument on the trial.’ [See, also, Moody v. Peyton, 135 Mo. 482; 1 Bigelow on Fraud, pp. 86, 87; Ward v. Southfield, 102 N. Y. 287.]

“ ‘The doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed. . . . That the mischief of retrying every case in which the judgment or decree rendered on fals'e testimony, given'by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterward ascertained to be forged was in issue, and which are afterwards ascertained to be forged.or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases. ’ [United States v. Throckmorton, 98 U. S. 61.] In that case there is also quoted with approval the following from Wells on Ees Adjudicata, sec. 499: ‘Fraud vitiates everything, and a judgment equally with a contract; that is, a judgment obtained directly by fraud, and not merely a judgment founded on a fraudulent instrument; for, in general, equity will not go again into the merits of an action for the purpose of detecting and -annulling the fraud. . . . Likewise, there are few exceptions to the rule that equity will not go behind the judg^ ment to interpose in the cause of action itself, but only when there was some hindrance beside the negligence of the defendant, in presenting the defense in the legal action. ’

“While, the petition shows that the deed in question was assailed by plaintiff in the partition suit on the ground of its having been obtained by Mrs. McLean and Mrs. Bates by fraud and that that question was decided adversely to him, he now undertakes by this action to escape the legal consequence flowing from the result of that adjudication, by averring that the deed was a forgery, which defendants knew, and which he did not learn until the determination of that suit when his suspicions were aroused by the statements made by Mrs. Bates whose deposition was being taken in another suit. It thus appears that plaintiff was afforded an opportunity of showing that the deed was a forgery upon the trial of the partition suit, and having failed to do so without interposition on the part of the defendants herein, he is not entitled to have the judgment in that case set aside merely to give him a second opportunity to slxow that the deed was a forgery. The fact that defendants had the deed recorded had no tendency whatever to show that it was a forgery, or to mislead any person with respect thereto.

“In Duncan v. Lyon, 3 Johns. Ch. 351, it is said: ‘It is a settled principle, that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report, by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with fault or negligence on his part.’ [Shelbina Hotel Assn. v. Parker, 58 Mo. 327.]

‘ ‘ But even if the deed was a forgery and the judgment was founded thereon, the judgment will not be set aside and the merits of the action again gone into for the purpose of demonstrating that it was in fact a forgery. Therefore, admitting all of the material allegations of the petition to be true, it does not appear therefrom that fraud was practiced in the very act of obtaining the judgment; or that plaintiff was prevented by any interposition of defendants from showing that fact if true, in the partition suit, and therefore failed to state a cause of action. The judgment is affirmed. ’ ’

Upon the affirmance of the judgment by this court, in the case last cited, the same plaintiff instituted a third suit, against the same defendants, stating substantially, but in a more elaborate form, the facts previously stated in the pleadings filed in the two previous suits. To this petition defendants again filed a demurrer, for the same reasons stated in the demurrer to the second petition. This demurrer was also sustained by the trial court, and plaintiff again appealed. The style of the last case is Hamilton v. McLean, and is reported in 169 Mo. 51, and on page 69 thereof this court again, in discussing what fraud was required to set aside a judgment, used, this language:

“When the pleadings in this ease are read and considered as a whole, and in connection with the pleadings in the partition proceedings in the case of this plaintiff against Eliza Armstrong et al., copied therein, we must determine that it is nothing more than a proceeding to have this court set aside and annul the decree obtained in that suit on the strength of what plaintiff characterizes as a forged deed, used by the defendant therein to deceive him and the court called to adjudge and settle the controversy therein involved.

“Such being the case before us, we come again, to the question, What fraud can be considered in an effort to set aside and annul the decree rendered by a. court of competent jurisdiction in a proceeding wherein all the parties thereto have been brought properly before the court? As said above, the charge made in the petition, now before ns for consideration, when stripped of its useless allegations and the conclusions of the pleader made therein, is that the partition decree, in the case of this plaintiff against Eliza Armstrong et al., rendered on January 28, 1896, was based upon a forged deed used by the defendants in that case.

“To use again the language of the opinion in 139 Mo. 678, supra, in disposing of this question, when then before the court for consideration, ‘Whatever the rule may be elsewhere, it is well settled in this State, in order that a judgment may be set aside in a direct proceeding for that purpose, it must be made to appear that fraud was practiced in the very act of obtaining the judgment;’ that the franc! must be in the procurement of the judgment and not merely in' the cause of action upon which the judgment is founded, and which could have been interposed as a defense, unless its interposition as a defense was prevented by the fraud of the adverse party.

“In Nichols v. Stevens, 123 Mo. l. c. 116, it was held, that in order to set aside a judgment on the ground of its having been obtained by fraud, it must appear, ‘That the judgment against the corporation was concocted in fraud; that fraud was practiced in the very act of obtaining the judgment. The fraud in such case, must be actual fraud as contradistinguished from a judgment obtained upon false evidence or a forged instrument on the trial.’

“When the same question was before the court in Moody v. Peyton, 135 Mo. 489, it was there said, ‘The rule is that when a judgment is sought to be inpeached on the ground of fraud, that such impeachment can only occur when satisfactory evidence is offered that such impeaching fraud occurred in the very concoction or procurement of the judgment.’

“In United States v. Throckmorton, 98 U. S. 61, that court thus expressed itself: ‘The doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed. . . . That the mischief of .retrying every case in which the judgment or decree rendered on false testimony, 'given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are after-wards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strifé, than any compensation arising from doing justice in individual cases. ’

“Mr. Story, in his work on Equity Jurisprudence (11 Ed.), sec. 158-2, thus states the rule: ‘The only question of fraud which is open to examination in a court of equity, as a ground for enjoining the judgment of any court having jurisdiction of the case, whether domestic or foreign, is such as intervened in the proceedings by which the judgment was obtained. All questions, prior to the proceedings by which the judgment was obtained, are necessarily concluded by it. ’

“In Ritchie v. McMullen, 79 Fed. 531, the court had under consideration the question of setting aside a former judgment on the ground of fraud in its procurement. After announcing the rule that the fraud for which a court of equity will annul a judgment must be extrinsic or collateral to the matter tried, this language was used: ‘The only fraud alleged is the false statement by the McMullens that they owned valid coupons, and were able and ready to deliver them. This was not an extrinsic or collateral fraud. It was a false statement in respect to a fact essential to the plaintiff’s right to recovery, and the fact that it deceived the defendant as well as the court does not change its character, as being a fraud in respect to an issue of a former suit. It was the duty of Ritchie, by inquiry, to learn the facts in respect to plaintiff’s cause of action.’

‘ ‘ The case at bar cannot be distinguished in principle from the authority above referred to, and numerous others that might be cited if further reference was deemed necessary, in which similar relief has been refused, and in which the doctrine contended for by plaintiff was denied. But appellant now contends that whatever might have heretofore been the rule in this court upon this question, the rule has been greatly modified in the case of Wonderly v. Lafayette County, 150 Mo. 635, and that it may now be construed to be, that judgments are impeachable for fraud relating to the merits of the controversy, and perpetrated against a party and the court called upon to consider it.

“There is nothing in the Wonderly case which militates against the rule announced in any of the foregoing authorities. The rule there enunciated does not apply to the facts here. The distinction is obvious. Iu the Wonderly case tbe petition was predicated upon fraud in inducing the Federal court to assume jurisdiction, and the only question involved in that cause related to the manner of obtaining jurisdiction of the cause. In other words, whether the judgment could be attacked for the fraud of Wonderly in having the Federal court take jurisdiction in the case through the interposition of Francis Owens and render judgment that could hot have been obtained in the courts of this State. There a fraud was not only perpetrated upon the defendant, but the court as well, in inducing the latter to assume jurisdiction of the cause. And it was that fraud upon the court that gave the right to set aside the judgment there obtained. It has uniformly been held that fraud in ‘acquiring jurisdiction of the cause’ affords ample ground for impeaching a judgment obtained thereby. [1 Bigelow on Fraud, 87; Adler v. Land Co., 114 Ala. 551.]

“Here, there is no pretense of fraud in acquiring jurisdiction in the partition suit now sought to be set aside and annulled. On the contrary, the annulment of the decree is sought on the ground that the defendant had used a forged deed in obtaining it. In the Wonderly case, the court cites the case of Hamilton v. McLean, 139 Mo. 678, supra, with approval.

“While it is true, as contended by plaintiff, that the deed in question was assailed in the partition suit on the ground of its having been obtained by fraud and undue influence, yet that was not the only issue tendered by the pleadings. In that case the petition referring to the deed in question and two others, executed at the same time, alleged that ‘they were and are null and void. ’ The defendants in their answer in that suit set up that deed averring its execution and delivery by John L. Hamilton, whereby he ‘conveyed his undivided one-half interest in and to the land in the petition described to these defendants.’ The reply, after denying each and' every allegation contained in the answer, alleged that the deed in question ‘is not and never was the act and deed of John A. Hamilton.’ Thus it appears that the execution and validity of the deed in "the controversy was directly involved in the partition suit.

“The validity of the deed having* been directly, and -not extrinsically or collaterally, involved in that case, the plaintiff is concluded thereby and cannot, in the circumstances of this case, again go into the merits of that controversy, even though the deed may after-wards have been discovered to be a forgery. For it is entirely settled in this State that what might have been shown tinder the pleadings is deemed settled as much as those in respect to which evidence was adduced, and a failure to introduce evidence affecting* those matters in issue by the pleading* in nowise affects the question of what facts were actually settled. [Donnell v. Wright, 147 Mo. l. c. 647.]

“Counsel for plaintiff, however, seek to excuse their failure, to show that the' deed was a forgery upon the trial of the partition suit by alleging in their second amended petition that the defendants had ‘at divers times subsequent to the date of the deed and before the trial of the partition suit, fraudulently represented that the deed was genuine, and that it had been signed by John L. Hamilton.’' This was not a statement of an extrinsic or collateral matter. It was a fraudulent statement touching a matter necessarily involved in the trial of the merits of the partition suit; and the mere fact that both the plaintiff and the court were deceived thereby does not affect the question involved here, or change the character of such representations. It devolved upon the plaintiff to' ascertain the facts in respect to the alleged execution and validity of the deed, and he had no right to rely alone upon the defendants’ statements concerning it. It is not claimed that any confidential relations existed between the plaintiff and defendants. They occupied antagonistic positions towards the property and towards each, other so that plaintiff relied at his peril upon any statement defendants may have made relative to the character of their title. [Ritchie v. McMullen, 79 Fed. l. c. 531; Lewis v. Land Co., 124 Mo. 687; Wood v. Amory, 105 N. Y. 282.]

“Moreover, the pleadings in the partition suit, which are set out in the petition herein, conclusively show that the plaintiff was not misled or induced by any statements made by the defendants to admit the genuineness of the deed in question, but specifically and emphatically denied the execution thereof.

I'The plaintiff having been given an opportunity of showing that the deed was a forgery, upon the trial of the former suit, and having failed to do so, the judgment will not now be set aside, and the merits of the action gone into again. ’ ’

In the case of Railroad v. Mirrielees, 182 Mo. 126, the same question again came before this court for consideration. In that case, the bill charged that the judgment which was sought to be set aside was obtained by the defendant, the plaintiff in the former suit, against the plaintiff, the defendant in the former, for personal injuries, alleged to have been received upon perjured testimony and that the plaintiff, the defendant in the former suit, did not discover the perjury until after the rendition of the judgment, etc. In discussing that question, Gantt, P. J., at page 140, used this language:

“It will be observed that the bill contains no averment of any fraud whatever extrinsic or collateral to the matters involved in the issues on trial in the suit in which the judgment now attacked was rendered. On the contrary it affirmatively appears that the only fraud propounded or suggested is this alleged false testimony given by the then plaintiff in the case. It appears on the face of the petition that such testimony was given on clearly defined issues then on trial, to-wit, the nature and extent of plaintiff’s injuries and liis earning capacity before and after receiving said injuries.

“There is no allegation as to what diligence, if any, was exercised by the railroad company in preparing to meet these essential issues on the trial, nor that it was hindered or prevented by any act of the plaintiff in said suit from exercising such diligence.

“There is no averment of any artifice, trick, promise or fraudulent conduct of the said plaintiff whereby the company was in any manner deceived or lulled into security or by any means prevented from obtaining testimony to rebut the said evidence of plaintiff.'

“The bill nowhere sets out the newly-discovered evidence or the names of the witnesses by whom the same could be established and entirely fails to show a valid defense to such action.

“Prom the foregoing summary it will be noticed that the only fraudulent act alleged in the bill against the defendant Mirrielees-, the plaintiff in the damage case, is that he falsely testified as to the nature and extent of his injuries. It necessarily related to the cause of action then on trial and was in no sense a fraud committed on the court in the procurement of the judgment. In Oxley Stave Company v. Butler County, 121 Mo. 614, we expressed the result of the decisions of this court on this question as follows: ‘Perhaps there is no subject upon which the decisions of this court have been more uniform and consistent than those in regard to the character of evidence required in courts of equity to vacate a final judgment. Beginning with Jones v. Brinker, 20 Mo. 87, and coming down to Murphy v. De France, 105 Mo. 53, it has been uniformly held that the “fraud for which a judgment may be vacated or enjoined in equity must be in the procurement of the judgment. If the cause of action is vitiated by fraud, this is a defense which must be interposed, and unless its interposition is prevented by fraud, it cannot be asserted against the judgment.” ’

“In Hamilton v. McLean, 139 Mo. 678, Burgess, J., speaking for tliis court in a case in which the ground for setting aside the judgment was the setting up and pleading as genuine a forged deed, knowing it to be a forgery, said: ‘But even if the deed was a forgery and the judgment was founded thereon, the judgment will not be set aside and the merits of the action again gone into for the purpose of demonstrating that it was in fact a forgery. Therefore, admitting all the material allegations of the petition to be true, it does not appear therefrom that fraud was practiced in the very act of obtaining the judgment; or that plaintiff was prevented from any interposition of defendants from showing that fact, if true, in the partition suit, and therefore failed to state a cause of action.’

“It is perfectly obvious there can be no distinction between introducing false and forged instruments in evidence and swearing falsely as a witness. Those two practices fall within' the same category, whether in law or. morals.

“In United States v. Throckmorton, 98 U. S. 61, Judge Miller very pithily expressed what we conceived to be the accepted doctrine of this subject in this State a.s well as elsewhere: ‘Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced upon 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 fair hearing. [Citing a number of cases.] In all these cases, and many others which have been examined, relief has been granted on the ground that by some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court.’ This was followed in Irvine v. Leyh, 124 Mo. 361.

“In Gray v. Barton, 62 Mich. 196, the identical ground upon which plaintiff relies to set aside this judgment was made the basis of that suit and the Supreme Court of Michigan said: ‘But it does not seem to us that the mere allegation that the defendant committed perjury upon the trial, and belief of the complainant that he can establish such perjury upon a retrial, is such a fraud as will authorize a court of equity to interfere, after a judgment against him in a court of law has been affirmed by the highest tribunal. The establishment of such a right in the defeated party would open the way for another contest in equity in almost, if not in every, suit decided at law.’ [See, also, Hass v. Billings, 42 Minn. 67; Miller v. Morse, 23 Mich. 368; Friese v. Hummel, 26 Ore. 145; s. c., 46 Am. St. 610; Noll v. Chattanooga Co., 38 S. W. (Tenn.) 287; Vaughn v. Johnson, 9 N. J. Eq. 173; Guthrie v. Doud, 33 Ill. App. 68; Maryland Steel Co. v. Marney, 91 Md. 360; Bates v. Hamilton, 144 Mo. 11 and 12.]

“In Vance v. Burbank, 101 U. S. 514, Chief Justice Waite said: ‘It has also been settled that the fraud in respect to which relief will be granted in this class of cases must be such as has been practiced on the unsuccessful party, and prevented him from exhibiting his case fully to the department, so that it may properly be said there has never been a decision in a real contest about the subject-matter of the inquiry. False testimony or forged documents even are not enough, if the disputed matter has actually been presented to or considered by the appropriate tribunal.’

“Nothing can be added to the reasoning of the courts on this question. Accordingly we hold that the allegation of perjury on the part of plaintiff in the original suit is not sufficient to set aside his judgment. ’ ’

Under the constitutional provision before quoted and according to the decisions of the various courts construing the same, the judgment of a sister State stands upon precisely the same foundation that a domestic judgment stands, and it requires the same kind of fraud, and the same degree or weight of evidence, to set aside the former as it does the latter.

Now if we apply the rules of law before announced by this court, and the other courts referred to, to the evidence introduced in this case to establish fraud on the part of Alexander Lieber, in procuring the decree of divorce from Margaret Lieber, in the circuit court of Mercer county, Illinois, it will be clearly seen that it falls far short of that standard. In fact, I have read and reread this record with a view to find such evidence, .but in vain. If it contains any such evidence of fraud in the procurement of the decree for divorce, I have been unable to find it, nor have learned counsel pointed to, or called our attention to, any such evidence.

The only testimony which I suppose could be tortured into evidence of fraud of any kind, was that of plaintiff’s two sons, who testified that they heard their father, Alexander Lieber, state upon one occasion, that he had to pay some party, I believe his attorney, forty dollars to swear falsely for him in the divorce case. Conceding for the sake of the argument that he made that statement and that it was true in point of fact (which is not true, as I will presently show), still that conduct on his part and the false swearing on the part of the attorney did not go to the very procurement of the decree, as explained in the cases previously quoted from. At most it was perjured testimony, and that is not sufficient under the authorities cited and quoted from, to justify a court of equity to set aside a decree of court, either foreign or domestic. [Railroad v. Mirrielees, supra; Hamilton v. McLean, supra; Ibid., 169 Mo., supra.]

Returning to the testimony of the two sons who testified that they heard their father state that he had given some one forty dollars to swear falsely in the divorce case. I previously stated, in parenthesis, that this testimony was not true, and my reason for so saying and holding is this: The case was tried before a master of chancery, and according to the chancery practice, all the evidence in the ease was in the form of depositions, and there were only three witnesses who testified, and they were Alexander Lieber, the plaintiff, L. H. Gerard, and Amos F. Waterman. These depositions, with all the other proceedings had in the case, were introduced in evidence in this case, and they show that the plaintiff there was the only witness who testified to any of the merits of the case, and the other two were simply character witnesses, not pretending to testify to any of the merits. Now it seems wholly improbable that the plaintiff would pay a character witness forty dollars to testify as to his character, especially when he had lived in Illinois for at least two years before the suit was instituted; and common experience teaches us that almost anyone living can procure such testimony without resorting to bribery and subordination of perjury, as charged here, and especially by a man who was in the financial straits, as the record in this case shows plaintiff was in, at that time.

So viewing this case as you may, there is not a scintilla of evidence preserved in this record which tends in the slightest degree to show that the decree of divorce was procured by fraud perpetrated upon the court or upon anyone else, for that matter.

I am, therefore,' of the opinion that the circuit court erred in «o holding.

(b) The next proposition presented for determination, in the order before mentioned, is, was Margaret Lieber, the defendant in the divorce suit, duly served with process'?

The record in this case shows that the circuit court of Mercer county, Illinois, the court which tried the divorce ease, was a court of record and of general jurisdiction, and “where reliance is placed on a foreign jurisdiction, the presumption is that such court had authority to render -the judgment in question, and that the necessary jurisdiction was acquired properly.” [13 Am. & Eng. Ency. Law (2 Ed.), p. 995.] In support of the text, many eases are cited from numerous States, as well as from the Federal courts, and courts of foreign countries.

In Bruckman v. Taussig, 7 Colo. 561, the court said: “The presumptions in favor of jurisdiction are the same whether the judgment relied on is domestic, foreign, or of one of the sister States of this Union.” The same rule is announced by this court, in the case of State ex rel. v. Williamson, 57 Mo. 192.

Not only does this presumption as to the jurisdiction of the court attend a judgment, foreign and domestic, when relied upon as the basis of, or as evidence in another case, but the question of jurisdiction is also one of the issuable facts involved in the ease, which is tried and adjudicated along with all the other facts therein, and the judgment pronounced thereon is just as binding and conclusive as it is upon all the other facts tried and determined therewith.

This question was pointedly put, and squarely decided by the unanimous opinion of this court, in a. carefully considered and ably written opinion by Marshall, J., in the case of Fears v. Riley, 148 Mo. 49, l. c. 58, which, was a direct proceeding to set a judgment aside. In discussing this question he said:

“It is the settled law in our State that in order to set aside a judgment for fraud, even in a direct proceeding, it must appear that fraud was practiced in the very act of obtaining the judgment. [Lewis v. Williams, 54 Mo. 200.] It is not enough that there was fraud in the cause of action on which the judgment is founded and which could have been interposed as a, defense (unless its interposition was prevented as a defense by fraud). [Payne v. O’Shea, 84 Mo. 129; Murphy v. De France, 105 Mo. 53; Oxley Stave Co. v. Butler Co., 121 Mo. 614.] The judgment must be concocted in fraud, and the fraud must be actual fraud as contradistinguished from a judgment obtained on false evidence. [Moody v. Peyton, 135 Mo, 482.] These principles and these cases have lately been reviewed and approved by this court in Hamilton v. McLean, 139 Mo. 678, and in Bates v. Hamilton, 144 Mo. 1.

“Apply these tests to the allegations of the petition, and we have this result: It may have been false that Laura Riley was a resident of Audrain county, but that was a fact to be tried in that ease, which was open to denial and contest by the defendant, and no more divests the court of jurisdiction or renders its judgment void on the ground of fraud than any other fact falsely asserted or testified to in the ease. It may have been that she joined Tobe Lee, a minor, as a party defendant so as to be able to institute the suit in the county in which she lived and one of the defendants is found, under section 2009, Revised Statutes 1889, but this was no fraud on the court, because the court was informed that Lee' was a minor, and it appointed a guardian acl litem for him, and he filed an answer. Moreover it is wholly a mistake to say that an infant is not liable in an action for tort, e. g., assault, false imprisonment, libel, slander, etc. [Conway v. Reed, 66 Mo. 346; Morgan v. Cox, 22 Mo. 374; Addison on Torts (6 Ed.), p. 155, par. 101; Cooley on Torts (2 Ed.), p. 120.] Tobe Lee was liable in this case because he circulated the libel. [Townshend on S. & L. (4 Ed.), pp. 101, 102.] No fraud was therefore, perpetrated in the very act of procuring the judgment in this respect. It may be Laura Riley perpetrated a wrong on Preston and Laveene in bringing them to Audrain county, under a criminal warrant, and then having the summons served on them in the civil ease, but that was not fraud on the court, and was a defense which Preston and Laveene alone could make, and they did not do so, but on the contrary filed an answer in the case. The filing of the amended petition in the Randolph Circuit Court, keeping Tobe Lee as a defendant, and at the trial dismissing the case as to him, was as herein shown no fraud upon the court, and had no different effect upon the case than if any other resident of Audrain county had been the defendant instead of Tobe Lee. Taking judgment while a motion for security for costs was pending was not a fraud upon the court, for the court takes a judicial notice of the state of a case as shown by its own records. Only a motion going* to the merits dispenses with tiro necessity 'of answering*. [Hill v. Meyer, 47 Mo. 585.] Aside from this Pears filed no motion for security for cost. That motion was filed by Preston and Laveene, and they also answered. The order for an alias summons for Pears, entered at the September term, 1892, but not executed because the sheriff shortly thereafter returned the original summons, personally served on Pears on the 24th day of February, 1892, was no fraud upon the court, and could not possibly have misled Pears. Por he knew he was properly served in February to appear at the September term, and says in his testimony in this case that he sent the summons and copy of the amended petition to Preston and asked him to attend to it, which he did by turning it over to his attorney. The fact that the attorney did not file an answer because of his erroneous opinion that Fears was not obliged to answer until the alias summons was served on him, and that Fears relied on this advice, in no manner affords any ground for equitable relief or affords the slightest" basis for a claim that the judgment was procured by fraud. [Biebinger v. Taylor, 64 Mo. 63; Ketchum v. Harlowe, 84 Mo. 225.] "Whether Fears had a good defense to the libel suit was a matter to be litigated in that case, and can not be after-wards inquired into. Pie had his opportunity to have a day in court to have that question determined. It can not be inquired into in this proceeding.”

The ease at bar, was tried in accordance to the rule just announced, and the Illinois court actually heard evidence in the question of Alexander Lieber being a resident of that State. I copy the following from his testimony given in that case, viz.: “I reside in this (Illinois) State and have resided therein for more than one year past prior to the commencement of this suit.”

It is true, however, the evidence tended to show, that at the expiration of that two years, he left Illinois and returned to Missouri and located at Perry for three or four months and from there' he traveled several weeks in his wagon, from place to place through Missouri, Iowa and Kansas, and finally returned to Illinois, locating this time in Mercer county. This evidence will receive further notice later.

This was ample evidence to support the finding and decree of that court, as to its jurisdiction over the person of Alexander Lieber, and of the subject-matter of the suit.

The truth is, that in ninety-nine cases out of every one hundred of this eharaeter, which are tried in the .courts of this State, the residence of the plaintiff is shown by no stronger or more convincing evidence than was the evidence upon which the Illinois court found Alexander Lieber was a resident of that State for the requisite length of time prescribed by the statutes. Speaking upon that subject from personal knowledge and experience, and I dare say, that my associates, who have graced the circuit bench will concur with me in that statement.

That being true, we should not require of the courts of a sister State a greater weight of evidence, in this class of cases, than our own- courts demand in similar eases.

Prom this state of the record, we not. only have the legal presumption that the Illinois court had jurisdiction over the plaintiff, Alexander Lieber, in the divorce suit, -but we also have the solemn decree of the court predicated upon a finding that he was a resident, and that finding was amply supported by positive evidence introduced at the trial.

Now what is the character of the testimony which was introduced at the trial of this cause, and relied upon by plaintiff, to set aside and annul the decree of divorce rendered by the circuit court of Mercer county, Illinois? It was given principally by Ben and Ed Lieber, the two sons of Alexander and Margaret Lieber, the plaintiff and defendant in that case. It should be remembered that their parents were married on May 24, 185-7, in the city of St. Joseph, Missouri; that they lived in this State until the latter part of 1865', when they went to Quincy, Illinois, where the separation occurred, and from there he and these two sons went to Warsaw, Illinois, and remained there about two years, when they returned to Perry, Missouri, where they remained some three or four months, and from there they wandered from place to place over this State, Iowa, and perhaps Kansas, their wanderings lasting several weeks, when they again returned to Illinois, and shortly thereafter the suit for divorce was instituted.

Those facts were testified to by those two sons, and it is seriously contended that that testimony was only slightly corroborated, as it is, in some few particulars, which were wholly immaterial, by other witnesses who lived in Missouri and knew nothing of the Illinois affairs, except the plaintiff, who as we have shown, was an incompetent witness. One of those sons, Ben, testified that he was only five years of age when they went to Illinois, and consequently could not have been much over seven when the -decree of divorce was rendered, which was about forty years before he was called upon to testify in this case, as to what took place back there. And as to Ed, the other son, the record does not show his age, and there is no way to tell whether he was older or younger than Ben, but under no circumstances could he have been over seven years of age, when they went to Quincy, nor over nine, when the decree for divorce was rendered, which was at least thirty-eight years before he was called upon to testify as to the conduct and residence of their father, prior to the date of his divorce. Common knowledge and experience teach us how treacherous and unreliable the memory of even adults is, much less of children, almost babies, after the lapse of thirty-eight or forty years.

If a decree of a court of record of general jurisdiction, after trial and solemn rendition of judgment can be set aside and for naught held, upon such flimsy evidence as this, then the judgments of our courts are not worth the paper upon which they are written.

If we should view this evidence in the most favorable light for the plaintiff, and draw therefrom • the most unfavorable conclusions possible against Alexander Lieber, it would then only slightly tend to prove that he left Illinois, after residing there two years of more, and returned to Missouri, Iowa and Kansas, with a view of seeking a new home, but finding none which suited him after five or six months travel in a wagon he returned to Illinois, and there again took up his residence, which he had never lost in that State, or acquired in another.

I am therefore, clearly of the opinion, that the evidence introduced, by plaintiff, in this cause, was wholly insufficient to sustain the judgment of the trial court, setting aside and holding for naught the decree for divorce rendered by the circuit court of Mercer county, Illinois.

III. 'There is another reason, equally valid, why the judgment of the lower court cannot stand, and that is because it is elementary that a judgment rendered by a court having jurisdiction of the parties and the subject-matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment in respect to its validity, verity, or binding effect by the parties thereto, in any collateral action or proceeding.

It is further clear that this suit does violence to that elementary rule. It is a suit to set aside a deed and to admeasure and set off a homestead to the plaintiff in the lands of Alexander Lieber deceased, and only incidentally asks to have the decree for divorce set aside for that purpose. To make this view of the case clearer, the original petition did not mention the decree for divorce at all, while the amended petition asks to have it set aside to the extent of letting in plaintiff’s claim of right to a homestead in the lands mentioned. Therefore, this suit, in so far as the decree for divorce is concerned, is a collateral attack upon it.

The authorities define a collateral attack to be an attempt to impeach a judgment in a proceeding not instituted for the express purpose of annulling such judgment; [17 Am. & Eng. Ency. of Law (2 Ed.), p. 848, and the numerous cases cited; Lovett v. Russell, 138 Mo. 478, l. c. 482; Truesdail v. McCormick, 126 Mo. 39.]

Not only does the record upon its face show that this suit is only a collateral attack upon the Illinois decree for divorce, but it also shows that in the very nature of things a direct proceeding for that purpose could not possibly have been brought and maintained, for the simple reason that a judgment in a divorce case is one in rem (Gould v. Crow, 57 Mo. 200), and Alexander Lieber, the plaintiff, in whose favor that judgment was rendered, is dead. He, therefore, could not have been made a party to such a suit, nor could such a suit have been maintained against him, even though it should have been instituted. Not only that, the subject-matter of such a suit is and would necessarily have to be the “judgment in rem/’ which was rendered in the divorce suit, which in truth and in fact is nothing more or less that the dissolved marital relation, luhich formally existed behveen Alexander Lieber and Margaret Lieber. That judgment in rem, or dissolved relationship, would not descend to his heirs, nor would it pass into the hands to his executor or administrator. Consequently there could be no person or thing represented in any. such suit after one of the parties thereto has died. This is clearly the reason why counsel did not bring a direct bill in equity to set aside the Illinois decree for divorce.

But that is no valid excuse for plaintiff’s having brought this collateral proceeding attacking the decree of divorce, for the simple reason that she knew of the divorce for a period of fifteen years before Alexander Liebfer died, and lived within a mile of him some two years of that time immediately prior to his death. She had an abundance of time in wmon sue could have brought this suit before he died, and liad she done so there would have been proper parties and subject-matter, and he would have been given a hearing upon the merits of the cause. But instead of suing within a reasonable time after she learned of the decree of divorce, she waited fifteen years, and seven days after death had claimed him, before she brought this suit, and thereby seeks to take practically, his entire estate from his second wife and her children by him begotten.

Those facts show that there is no equity in her bill, or in the case made by her. [Buffington v. Carty, 195 Mo. 490, l. c. 499.]

The court below, forty years after the divorce had been granted, virtually retried it in this State, upon the testimony of the plaintiff, who was clearly an incompetent witness, and upon that of the two sons, who at that time were little children, scarcely more’ than babies, and that, too, when Alexander Lieber’s lips were sealed with death, and those of the defendant were closed by law, and thereupon entered a decree, not only taking from the defendant and her children by Alexander Lieber, the fruits of their joint labor, but robbed her of her good name and bastardized their offspring.

In this connection, counsel for plaintiff lay much stress upon the fact that the defendant was present during all those years, and was a party to all the things testified to by the plaintiff and her two sons, nevertheless being present in court she never dared take the witness stand and deny anything they testified to, ergo, everything said was true, and she by her conduct has practically conceded it.

This is an erroneous view of the law, for even though it be conceded that this court might hold that plaintiff was a competent witness, to show that she was the innocent and injured party in the former trial, yet it must be remembered that the defendant could not rebut .that evidence without conceding that the merits of the former case could properly be inquired into here, which, she was persistently denied all the way through this case, and, second, what good would have resulted to her by so doing, when her husband was dead, and could not speak? She would have been confronted and contradicted by the plaintiff and her two sons, which in all probability would have destroyed the weight of her testimony, and the same result would have been reached by the trial court, and that too, without any hope of review by this court, had she done so, consequently she acted properly and wisely in remaining off the stand.

V. This record shbws that the eighty acres situate in section 16, township 37, range 23, the land upon which Alexander Lieber resided at the time of his death, was worth more than $2,000, and that the twenty acres of wild land situated in section 31, township 38, range 23, which was more than three miles from the homestead, could under no circumstances be considered a part thereof, nevertheless, the judgment below set the deed aside as to this twenty acres also.

Clearly the judgment in that regard was erroneous, even on plaintiff’s theory of the case.

I am, therefore, of the opinion, that the judgment should be reversed, and the bill dismissed.

All concur, except Vallicmt, G. J., and Kenwish, J., who dissent in separate opinions; Graves, J., concurs in the result.