Barkhoefer v. Barkhoefer

• Decision Date: 18 March 1902
• Citation: 67 S.W. 674,93 Mo. App. 373
• Parties: BARKHOEFER et al. v. BARKHOEFER.
• Court: Missouri Court of Appeals

67 S.W. 674

93 Mo. A. 373

BARKHOEFER et al. v. BARKHOEFER.

Court of Appeals of St. Louis, Missouri.

March 18, 1902.

PARTITION — ADVERSE INTERESTS — ACTION AGAINST HUSBAND — WIFE'S TRUST DEED AS SURETY — RES JUDICATA — CURTESY.

1. Rev. St. 1899, §§ 4373-4378, provide that in partition the court shall decree the rights, title, and interest of the parties, and give judgment accordingly; and sections 4389, 4416-4421, provide that, whenever there are parties claiming the same portions adversely to each other, the court may decide the adverse claims, or direct the shares in controversy to be allotted subject to such claims, to be settled in another proceeding. A judgment in a partition suit, in which a married woman and her husband, and later her children, were parties, as interested in undivided portions of the property, decreed the sale of the property, and the payment of the proper share to the children, subject to a deed of trust executed by the wife on her undivided interest, and to the husband's right to curtesy. Held, that the judgment was no bar to an action by the children against the husband, on the death of the wife, to recover the amount paid on account of the deed of trust, on the ground that the wife was a mere surety for the husband's debt; the subject-matter of the latter litigation not having been an appropriate matter for consideration in the partition suit.

2. The husband, if liable on the ground that the deed of trust was executed by the wife as his surety, merely, cannot be compelled to pay to his children, as her heirs, the full amount of the indebtedness, but he is entitled to retain the value of his curtesy in the land conveyed by the trust deed.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by Elsie Barkhoefer and others, by their curator, the St. Louis Trust Company, against Henry W. Barkhoefer. From an order granting plaintiffs' motion for a new trial after the rendition of a judgment for defendant, he appeals. Affirmed.

Rassieur & Buder, for appellant. Lange & Senn, for respondents.

GOODE, J.

This action was brought by appellant's minor children against him to recover a sum of money alleged to have been paid out of their interest in certain land involved in a partition suit, in which cause, as in this, they acted by their curator, the St. Louis Trust Company. The children's interest in the land was derived from their mother, Fannie Barkhoefer, wife of appellant; she having died intestate, owning an undivided one-seventh interest in the lands belonging to the estate of her father, John J. Menges, deceased. On or about May 22, 1888, Fannie Barkhoefer and her husband made and negotiated their certain notes for the aggregate amount of $3,500, and gave their joint deed of trust on all their interest in the so-called Menges real estate, which at that time was only the wife's undivided seventh; the appellant's interest having been acquired subsequently. Respondents' mother, Fannie Barkhoefer, died in February, 1891. During her lifetime she and her husband, joined by certain other heirs of Menges, brought suit for partition against the remaining heirs and all others then interested in the property. This suit was brought to the April term, 1889, of the circuit court of the city of St. Louis, as all of said land lies in said city. The holder of the above-mentioned notes and the trustee in the deed of trust were also parties to that action. After Fannie Barkhoefer's death an amended petition was filed in the partition suit, the parties being rearranged, and thereafter Henry W. Barkhoefer was the only plaintiff therein; and his said two children, with the others interested in the property, were on the other side of the case, as defendants. Barkhoefer was then the owner in his own right of another undivided two-sevenths interest in the same land, which interest was acquired by him by mesne conveyances from other heirs of the said Menges. The decree in the partition suit described the said $3,500 deed of trust as that of Fannie Barkhoefer, ordered that the property be sold, and that the said deed of trust be paid out of her share, and further found and adjudged that, after deducting the curtesy interest therein of this appellant, Henry W. Barkhoefer, the remainder should be paid to his two children. The real estate was sold, and Fannie Barkhoefer's share in the proceeds exceeded the amount due on the deed of trust. Barkhoefer's curtesy interest in the wife's seventh of the land was calculated on her share of the proceeds after deducting the amount due on the said deed of trust, and after deducting the amount of such curtesy interest the balance was paid to the children's curator. On June 11, 1897, final judgment was rendered in said cause in accordance with the decree, the money was paid over to the parties entitled to it in accordance with its terms, and the special commissioners in the case were discharged. The plaintiffs seek to recover from the defendant the amount deducted from their interest in the proceeds of said land as heirs of their mother, on the ground that the debt for which she, in conjunction with her husband, executed the deed of trust on her interest, was for money borrowed by the husband, and for which he was the principal debtor. The answer, in effect, was a general denial, and further pleaded that Fannie Barkhoefer held her share in the land as her separate property, and intended to charge it with the debt; and also pleaded res judicata on account of the judgment in the partition proceeding. Besides the introduction of documentary testimony, respondents offered at the trial the testimony of two witnesses to establish their contention that the money raised by the $3,500 deed of trust was used by Barkhoefer, and that it was, as a matter of fact, his sole indebtedness. The circuit court rendered judgment in the cause in favor of defendant. Plaintiffs in due time thereafter filed their motion for a new trial, which was sustained on the ground that the judgment was against the law and for the wrong party, whereupon defendant appealed to the supreme court from said order sustaining plaintiffs' motion for a new trial, which transferred the appeal to this court.

Was the present cause of action adjudicated in the partition suit? is the question for decision. Just what the issues in that suit were, cannot be ascertained, because the pleadings therein are not preserved in the record before us; but as a judgment of a court of competent jurisdiction is presumed to be according to the pleadings and evidence in the cause, unless the contrary is affirmatively shown, this appeal must be determined on the assumption that no issue was made in the former case about whether Barkhoefer was the principal obligor, and his wife but a surety on the notes secured by the deed of trust. Counsel treat the case in their briefs as if no such issue was joined in the partition suit, while the decree therein merely found that the deed of trust was executed by Fannie Barkhoefer and Henry W. Barkhoefer on her estate in the land to secure the notes, without finding who signed them as principal, and adjudged that from the interest of their children (these respondents) in the proceeds of the land should be subtracted the amount of the notes, and also the value of Barkhoefer's curtesy in the remainder. Appellant's contention is that the effect of said finding and judgment was to adjudicate the respondents' present demand, whether it was in issue in the former case or not; that as the decree fastened the debt evidenced by the notes on their inheritance thus diminishing the value of their father's curtesy pro tanto, this was equivalent to deciding the notes were primarily the mother's obligations. Putting aside for a moment the bearing of the law of former adjudication, that argument strikes us as weak on the facts. Fannie Barkhoefer had incumbered her land, and the lien of the incumbrance attached, of course, to the proceeds realized by its sale. Barkhoefer owned no estate or...