Brinkman v. Sunken

• Decision Date: 27 May 1903
• Citation: 174 Mo. 709,74 S.W. 963
• Parties: BRINKMAN v. SUNKEN.
• Court: Missouri Supreme Court

74 S.W. 963

174 Mo. 709

BRINKMAN v. SUNKEN.

Supreme Court of Missouri, Division No. 1.

May 27, 1903.

RESULTING TRUST—EVIDENCE TO ESTABLISH —SUFFICIENCY—RES JUDICATA—BILL OF EXCEPTIONS.

1. Where the plea of a former judgment was traversed, and such judgment or the pleadings in the cause in which it was rendered did not appear in the bill of exceptions, the defense was eliminated from the case on appeal.

2. Evidence in a suit to divest defendant of the legal title acquired under a deed, on the ground that plaintiff furnished the consideration therefor, examined, and held insufficient to show that plaintiff paid for the premises, by such unequivocal and convincing testimony as to warrant recovery.

Appeal from St. Louis Circuit Court; John A. Talty, Judge.

Suit by Fred Brinkman against Metta Sunken. From a judgment dismissing the bill, plaintiff appeals. Affirmed.

T. J. Rowe, for appellant. Carl Otto, for respondent.

BRACE, P. J.

This is a proceeding in equity by which the plaintiff seeks to have the defendant divested of the legal title acquired by her to the premises described in the petition, under a general warranty deed from Sarah B. Curran to her, dated April 28, 1894, and recorded in the recorder's office of the city of St. Louis, in Book 1221, p. 3. The answer is a general denial and a plea of res adjudicata, upon which issue is joined by reply. Upon hearing the evidence the trial court dismissed plaintiff's bill, and he appeals.

The consideration recited in the deed is $1,390, and counsel for plaintiff, who says he was not of counsel in the circuit court, opens his brief with the statement that, "judging from the record, the case was tried below in a very bungling manner, and the pleadings are bursting with verbiage; but there is sufficient therein to show that the contention of the plaintiff is that he furnished the $1,390 with which the real estate described in the petition was purchased, and that in equity he is the owner of the same." This seems to be the theory upon which the case was tried in the circuit court, and will be accepted here. The same or a like bungler also seems to have prepared the abstract on this appeal, for, while it is therein recited that the defendant read in evidence the pleadings and judgment in a former case, upon which the plea of res adjudicata is based, neither the pleadings nor the judgment in that case is set out in the bill of exceptions. This defect is in part remedied by a counter abstract filed by counsel for defendant, but the judgment does not even appear therein, and, as the plea was traversed, we have in the record no evidence of a former judgment to support the plea. Such being the state of the record, that defense is eliminated from the case, and the only question for determination is whether or not the judgment of the circuit court is correct, upon the facts disclosed by the evidence.

The following facts may be said to be disclosed by evidence in the case, upon which reliance can be placed with a reasonable degree of confidence: Some time prior to the year 1884 John Evers came with his family from Germany to this country, and located in the city of St. Louis. His family consisted of himself, his wife, and five children. His wife's maiden name was Metta Sunken, and she is the defendant in this case. Some time after the location of the family in St. Louis, John Evers disappeared, and some time thereafter the defendant intermarried with a man named Hoben. Some time thereafter they separated, and she and the plaintiff became acquainted. In the meantime her oldest child (a boy) had died, on which occasion some kindly disposed persons, under the impression that she was in destitute circumstances, made her some small contributions in money, food, and raiment, amounting in value to about $10. The plaintiff was also from Germany, had resided in St. Louis since 1856, had been married, and had several children, but was separated from his wife, who had procured a divorce from him, and to whom for a time he was compelled to pay an allowance of $5 per week. He had been a soldier in the Federal army. Had been in the penitentiary, followed the vocation of engineer of stationary engines, was industrious, and when at work earned from $18 to $24 per week. In the year 1884 the defendant, with her remaining children, Joana, aged about 10 years, Amanda, about 7, Henry, about 5, and Rosa, about 2 years, were living in a small house, consisting of two rooms and a kitchen. Some time during that year the plaintiff, under some arrangement between him and the defendant, moved his things to her house, and thereafter continued to reside there with her and her family, and in houses to which she from time to time thereafter moved and occupied; making her house his home wherever it was, until some time in the year 1895, except during temporary absences of a month or two. During this period of about 11 years she furnished him room and board, and did his washing and mending. She was an industrious, economical woman, and, whenever called upon, and her home duties permitted, went out to work for wages, washing, sewing, house cleaning, etc., as opportunities offered; and, as her children arrived at the age of 10 years, they were put out to service, and brought...