Barkhoefer v. Barkhoefer
| Decision Date | 18 March 1902 |
| Citation | 67 S.W. 674,93 Mo.App. 373 |
| Parties | ELSIE BARKHOEFER et al., Respondents, v. HENRY W. BARKHOEFER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jacob Klein, Judge.
AFFIRMED.
Judgment affirmed.
Rassieur & Buder for appellant.
(1) Respondents' claim was adjudicated in the partition suit. Barkhoefer's curtesy interest in the wife's one-seventh of the land was involved therein, and was lessened by the finding and decree that her interest consisted of the remainder after the payment of the deed of trust. Akers v. Hobbs, 105 Mo. 127; Lloyd v Davis, 124 Cal. 348; Barnes v. Cunningham, 9 Rich. Eq. (S. Car.) 475. (2) Under the statutes and law respondents' claim, if any, was one which could have been litigated in the partition suit. Secs. 4373, 4375, 4376 and 4386, R. S. 1899; Herchenroeder v. Herchenroeder, 75 Mo.App 285.
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 three thousand five hundred dollars, 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, 1899 of the circuit court of the city of St. Louis, as all of the 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 three thousand five hundred dollars deed of trust as that of Fannie Barkhoefer, ordered that the property be sold, 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 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 three thousand five hundred dollars 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 court 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 can not 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. Fanny 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 interest in the land, when the deed of trust was executed, for it to take effect on, and the terms of that instrument did not cause it to take effect on an after-acquired interest, which facts sufficiently explain the decree.
But we think collateral, incidental disputes between some of the parties to a statutory proceeding for partition (which the former action was) ought not to be gone into, because they are not germane to the subject-matter of the action or its principal purpose; and a fortiori that they need not be brought forward for decision therein on pain of having them treated as res judicata in a subsequent action expressly requesting their determination.
Two points are to be considered:
First. Was the claim of the respondents against their father actually passed on in the first case? The decree answers this question; it was not. We assume the pleadings in that case tendered or joined no issue about the capacities in which Barkhoefer and his wife executed the notes and deed of trust or the children's right to have their father make good to them the amount deducted from their interest on account of the incumbrance, which was evidently not then in the minds of either the parties or of the court. The decree simply enforced against Fanny Barkhoefer's land the lien which said deed created, as the court was bound to do. In a partition suit all mortgage liens in favor of parties to the cause must be respected and for that purpose the statutes require such lien-holders to be made parties. Harbison v. Sanford, 90 Mo....
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