Preston v. Chadwick

• Citation: 91 Mo. 320,2 S.W. 793
• Parties: PRESTON and another v. CHADWICK and another.
• Decision Date: 31 January 1887
• Court: United States State Supreme Court of Missouri

2 S.W. 793

91 Mo. 320

PRESTON and another v. CHADWICK and another.

Supreme Court of Missouri.

January 31, 1887.

ESTOPPEL — EJECTMENT — EQUITABLE DEFENSE — JUDGMENT.

Where, to an ejectment suit, the defendant therein sets up an equitable defense, and the cause is tried, and plaintiff has judgment, such equitable defense is res judicata, and defendant cannot thereafter recover by a proceeding to establish his equitable title so passed on the former suit: following Chouteau v. Gibson, 76 Mo. 58.

Appeal from circuit court, Perry county.

Nicholson & Robb and John V. Noell, for appellant.

NORTON, C. J.

This suit is by ejectment to recover the possession of certain lands in Perry county. The petition is in the usual form. The answer admits that defendants are in possession of the premises, and avers that they were put in possession by virtue of a judgment and decree of the Wayne county circuit court, and, after denying the other allegations of the petition, sets up as follows: "The defendants, further answering, and by way of new matter, say that the said pretended title and claim of the said plaintiff in and to said land has been fully tried and adjudicated and settled in a certain cause in the Wayne county circuit court, at the term 1876 thereof, wherein co-defendant Thomas G. Chadwick was plaintiff, and Joseph Ellis and James Preston, the plaintiffs herein, were defendants; said action being a legal and equitable proceeding to try and determine the right to the title to said land. The court adjudged and found the title of said land to be in co-defendant Thomas G. Chadwick. Wherefore defendants here plead said prior adjudication and trial and judgment in bar of this action."

Defendants obtained judgment on the trial, from which plaintiffs have appealed, and, among others, assigns for error the action of the circuit court in receiving in evidence the record and proceedings of a suit in the Wayne county circuit court. This is the pivotal and decisive point in the case. It appears from the record that Melina Flynn, who was born September 15, 1830, and intermarried in 1848 with one Jesse I. Merritt, was the common source of title; that in 1849 there was born said Jesse F. Merritt; that on the twelfth February, 1850, the said Melina Merritt, while a minor, joined her husband in a deed conveying the land in controversy to one John F. Burget; that said Melina Merritt died in 1851, while she was still a minor, under the age of 21 years, leaving as her only child and heir said Jesse F. Merritt; that said Burget immediately entered into the...