Opinion
No. 27812.
April 18, 1950.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, JAMES F. NANGLE, J.
Goldenhersh Goldenhersh, St. Louis, Samuel Goldenhersh, St. Louis, for appellant.
James E. Crowe, City Counselor, St. Louis, Albert Miller, Associate City Counselor, St. Louis, attorneys for Ruby Koelling, Recorder of Deeds.
J. C. Hobart, Kirkwood, attorney for Helen Murray.
This is a suit in equity in which plaintiff seeks to have expunged and canceled from the records of the office of the Recorder of Deeds of the City of St. Louis a marriage certificate and license issued to plaintiff and defendant Helen Murray, and recorded in said office, on the ground that the signature on the return of the solemnizing official was a forgery, and that there was no valid marriage between plaintiff and defendant Helen Murray. Ruby Koelling, the Recorder of Deeds for the City of St. Louis, was joined as a party defendant.
Defendant Ruby Koelling filed a motion to dismiss the suit on the ground that the plaintiff's petition failed to state a claim upon which relief could be granted.
Defendant Helen Murray filed an answer putting in issue the allegations of the petition with respect to forgery and the nonexistence of a valid marriage between the parties.
Thereafter, the court entered its judgment sustaining the motion to dismiss filed by defendant Ruby Koelling. In said judgment it was further ordered that the prayer of defendant Helen Murray's answer be granted, and that the cause of action be dismissed without prejudice as to defendant Helen Murray. From this judgment, plaintiff has appealed.
The sole issue on this appeal is whether plaintiff's petition states a claim upon which relief can be granted. Said petition is as follows:
"Comes now the petitioner and for his cause of action states and alleges:
"1. That the petitioner is a single and unmarried man residing at Granite City, Illinois;
"2. That on or about the 6th day of May, 1947, the petitioner and one Helen Murray did take the necessary tests and purchase a marriage license from the Office of the Recorder of Deeds in the City of St. Louis, Missouri.
"3. That there is now on record in the Recorder of Deeds Office for the City of St. Louis, a duly authenticated copy of the aforementioned marriage certificate bearing the signature of one Reverend A. B. Young and indicating that this petitioner and one Helen Murray were bound in wedlock and holy matrimony.
"4. That the marriage license so authenticated and so indicating is fraudulent and the signature of Rev. A. B. Young which it bears is not the signature of said Rev. A. B. Young, the party whom it purports to be and said Rev. A. B. Young did not sign said certificate or perform any marriage ceremony by virtue thereof.
"5. That the records in the office of the Recorder of Deeds for the City of St. Louis do thus and thereby indicate a valid and existing marriage between this petitioner and one Helen Murray which does not in fact exist.
"6. That the petitioner is desirous of expunging the aforementioned record and that he has no adequate remedy at law.
"Wherefore, this petitioner prays the Court to order this Recorder of Deeds for the City of St. Louis to expunge, cancel, and destroy the records now in existence and reciting a valid marriage between the aforementioned petitioner and defendant Helen Murray on the 6th day of May, 1947, and for such other and further relief as to the Court may seem just."
It is respondents' contention that it is beyond the power of a court of equity to grant the relief prayed for by plaintiff in the foregoing petition. To this we cannot agree.
A court of equity has inherent jurisdiction to relieve against fraud by ordering the cancellation of written instruments, even though they be public records where private rights are invaded. Vanderbilt v. Mitchell, 72 N.J.Eq. 910, 67 A. 97, 14 L.R. A.,N.S., 304.
In 45 Am.Jur., Records and Recording Laws, Sec. 11, page 424, it is said:
"There has always existed in the courts of equity the power in certain classes of cases to inquire into and correct mistakes, injustice, and wrong, in both judicial and executive action, however solemn the form which the result of that action may assume, when it invades private rights; and by virtue of this power the final judgments of courts of law have been annulled or modified, and patents and other important instruments issuing from the Crown or other executive branch of the government have been corrected or declared void, or other relief granted. If the court has jurisdiction to set aside adjudications of judicial officers on the ground of fraud, it necessarily follows that a public record the essential facts of which are obtained by ex parte statements, without the sanction of an oath, and prepared by an officer whether performing a ministerial or judicial function, may be annulled and rendered innocuous by a decree of a court of chancery, especially where private rights are invaded, and where the forms of law are used to perpetrate a fraud, establish an unfounded claim, or injuriously affect or threaten future vested or contingent estates. So, it is held that a court of equity has power to compel the cancellation of a birth certificate by fraud made a public record which unjustly places on the complainant the burden of a prima facie status of paternity, and exposes him to the liability to support and maintain the infant. Where a public record is pronounced fraudulent, the relief is not confined to an injunction forbidding its use, but the decree may direct a cancellation of the record on the face thereof. An officer making or having in his possession the record may be made a party to a suit to set it aside, although he is not charged with any fraud and is faithfully performing his public duties, and may be enjoined by the decree."
In Nelson on Divorce and Annulment, Vol. 3, Sec. 31.03, page 278, it is said: "* * * Where no marriage ceremony has taken place, but a purported certificate of marriage has been filed with the officer designated to file such certificate, the proper remedy is not by way of an action to annul a marriage, but to annul and cancel the record.* * *"
In suits to cancel records the recording officer is a necessary party. O'Brien v. Eustice, 298 Ill.App. 510, 19 N.E.2d 137; Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402; Guess v. Guess, 202 Ga. 364, 43 S.E.2d 326.
It is further urged that the petition is faulty in that facts constituting the fraud and forgery are not pleaded.
The petition alleges that the signature of Reverend A. B. Young appearing on the marriage license is not the signature of said Reverend A. B. Young; that the said Reverend A. B. Young did not perform any marriage ceremony; and that no marriage between plaintiff and defendant Helen Murray does in fact exist.
If the above facts are true, then it would be a fraud upon plaintiff to permit the record to stand. It seems to us that the petition complies with the provisions of the General Code for Civil Procedure which requires that plaintiff's petition shall contain "a short and plain statement of the facts showing that the pleader is entitled to relief." Civil Code of Missouri, Sec. 36, Laws Mo. 1943, p. 369, Mo.R.S.A. § 847.36.
The judgment appealed from is reversed and the cause is remanded.
HUGHES and McCULLEN, JJ., concur.