Blair v. Blair

• Decision Date: 30 November 1912
• Citation: 152 S.W. 1,247 Mo. 61
• Parties: BLAIR v. BLAIR.
• Court: Missouri Supreme Court

152 S.W. 1

247 Mo. 61

BLAIR v. BLAIR.

Supreme Court of Missouri, Division No. 1.

November 30, 1912.

Rehearing Denied December 24, 1912.

1. JUDGMENT (§ 736) — RES ADJUDICATA — OWNERSHIP.

Where the trial court incidentally investigated the property holdings of the parties in a divorce action in allowing alimony, its conclusion as to who owned a certain tract of land is not res adjudicata in a proceeding where that question is of vital importance, since to be so a fact must be directly in issue.

2. APPEAL AND ERROR (§ 1011) — CREDIBILITY OF WITNESSES.

The evidence being conflicting, the Supreme Court will yield to the judgment of the trial court as to the credibility of the witnesses.

Appeal from Circuit Court, Audrain County; J. D. Barnett, Judge.

Action by Joseph H. Blair against Annie E. Blair. Judgment for defendant, and plaintiff appeals. Affirmed.

J. H. Blair, of Bowling Green, for appellant. L. G. Blair and J. D. Hostetter, both of Bowling Green, for respondent.

GRAVES, P. J.

Action by plaintiff to divest defendant of the record title to 100 acres of land in Pike county in value at the present time of $5,000 to $6,000. Petition in three counts. The first count avers that the plaintiff paid for the land in question with his own funds, and seeks to have a resulting trust declared. By the second count an express agreement is alleged, by the terms of which it is stated that the defendant took the title, agreeing to hold the same for the use and benefit of the plaintiff. By the third count a receiver is asked for the property. In appropriate answer the defendant joined issue on all the matters averred in plaintiff's petition, and as a further defense invoked the 10 years' statute of limitation. Defendant also answered to the effect that the purchase price of the land in question was paid out of her individual and separate funds, and that she was in fact and in law the legal owner thereof. By reply the plaintiff pleaded that there had been an adjudication of the fact as to whose money was used in the payment of the farm in the case of Blair v. Blair, 131 Mo. App. 571, 110 S. W. 652. A reading of that case will throw some sidelight upon the present and obviate a lengthy detail of many things in this case. Upon a hearing nisi, the chancellor found against the plaintiff and dismissed his bill, from which judgment of dismissal and costs he has appealed. There are but two real questions in the case: (a) Is the plea of former adjudication good? (b) Whose money paid for this land? Of these in their order.

1. The question of res adjudicata in this case is thus situated: In 1905 the defendant in this case, Annie E. Blair, sued the plaintiff in the present suit, Joseph H. Blair, for divorce, and as an incident thereto asked for alimony. In July, 1906, the circuit court of Pike county heard this divorce proceeding and entered its decree granting to Annie E. Blair a divorce from Joseph H. Blair, and also giving her alimony in gross in the sum of $2,200 and $15 per month for the support and maintenance of two minor children. From this decree Mr. Blair appealed to the St. Louis Court of Appeals, and in that court the alimony in gross was, for reasons in the opinion stated, reduced to $1,000, and with this modification affirmed. Appellant's idea of res adjudicata seems to spring from a certain state of the record in the divorce suit. In the petition for divorce, evidently inserted on the idea of giving the court a basis for fixing alimony, Annie E. Blair used that language: "Plaintiff states that her property consists of the residence property in Bowling Green and 100 acres of farm land, and with that exception she is without means of support for herself and family, and without the means for the prosecution of this suit." It should be noted that no land is described, and the court is not asked to make any decree as to the land. Turning to Mr. Blair's answer in the divorce suit, we find this language: "He further admits that the legal title to the farm mentioned in said petition is in the plaintiff, but defendant denies that she owns the same or any interest therein, and says that the defendant is the owner of the equitable title to same." It should be noted that he describes no land and does not ask the court to enter a decree with reference thereto.

Mrs. Blair in the divorce suit replied to the answer, and in the course of such reply used this language: "Now comes the plaintiff in the above-entitled cause, and for reply to defendant's answer herein denies each and every allegation of new matter in said answer contained, except those hereinafter admitted to be true." Thus stand the portions of the pleadings in the divorce suit relied upon by the plaintiff in the case at bar. His present abstract of record contains this excerpt from the judgment nisi in the divorce suit: "The judgment of the Pike county court in said cause, rendered July 2, 1906, which granted plaintiff in said cause a divorce, alimony, and support for the minor children, and in relation to the real estate mentioned in said pleadings found the facts to be as follows: That at the date of the institution of the suit plaintiff's residence was, and for many years prior thereto had been, in the west portion of Bowling Green, and since the year 1880 in the property owned by the...