Buckhorn v. Greenwood

Decision Date30 December 1918
Docket NumberNo. 19539.,19539.
Citation208 S.W. 59
PartiesBUCKHORN et al. v. GREENWOOD.
CourtMissouri Supreme Court

Appeal from Circuit Court, Washington County; P. S. Terry, Judge.

Suit by Edward Buckhorn and others against Amos Greenwood. From judgment of dismissal, plaintiffs appeal. Affirmed.

Chas. H. Richeson, of Potosi, for appellants.

M. E. Rhodes and S. G. Nipper, both of Potosi, and H. B. Irwin, of De Soto, for respondent.

BROWN, C.

This suit was instituted in the Washington county circuit court on March 4, 1913. The petition is in two counts; the first being to quiet title under the provisions of section 2535 of the Revised Statutes of 1909, and the other in ejectment. The answer is a general denial of each count. The property involved is a lot in Potosi, of the value of $500. The trial was hid to the court without a jury, and without instructions asked or given, and resulted be the dismissal of the petition, with costs against the plaintiffs, who appealed, and fuel a transcript, of the entire record in this court.

The appellants' printed abstract contains a very incomplete statement of facts in evidence. The respondent has filed nothing. Thinking that this paucity might be the result, to some extent, of the small value involved, we have carefully read the bill of exceptions, which also displays frugality with respect to the disclosure of facts in the trial. Both parties agreed that their source of title is one Frank Miller, who died February 16, 1909, while occupying the land in connection with the defendant, who was his tenant of a portion of the house. Mr. Miller came from Austria to Washington county about 1853. What his name had been up to that time no one knew, although several names are suggested in the evidence founded upon hearsay. Among these were "Beran" and "Shallowell." He was a millwright, and worked at that business after coming to Washington county. From this circumstance the name of Miller was applied to him, and he became Frank Miller thenceforth to the time of his death. He married Mrs. Baraba Buckhorn, who was then the mother of John Buckhorn, the father of these Plaintiffs. Whether or not she had other children does not appear, but none were born of the marriage to Mr. Miller. The plaintiff Edward Buckhorn testified that he did not know how many grandchildren Mrs. Miller had when she died, but that his coplaintiffs were all the brothers and sisters he had. The approximate date of the death of Mrs. Miller does not appear. It appears to have been long before the death of Mr. Miller.

When Mr. Miller died, Mr. Andrew F. Casey was appointed administrator of his estate. He made final settlement in 1911, with $551.22 in his hands, which was afterward turned over to the state treasurer for the benefit of the escheat fund.

There was evidence tending to show that Mr. Miller had stated to members of the Buckhorn family that he had no relations and that his brothers in Austria were dead. It was also in evidence, and undenied, that at the time of the World's Fair in St. Louis a man came to see him, and remained with him several days; that when they met they kissed each other, and that Mr. Miller introduced him as his son, and that he spoke of him as his son, from Vienna.

The defendant offered in evidence a deed from Franz Beran, said to be the reputed son referred to, and his wife, to W. Casey and S. G. Nipper, executed by a Rhodes, of Washington county, as attorney in fact, and also power of attorney under which it was executed. An objection to their introduction was made and overruled, but they were not copied into the bill of exceptions, although called for. The defendant claims directly under a warranty dead from Casey and Nipper. When the cause a me up for judgment, an oral motion was made by plaintiffs to strike out "all this testimony set up as an affirmative defense to this action," on the ground that the defendant his failed to file an amended answer. It is not shown in the record what evidence this refers to, nor what the affirmative defense to which it was supposed to pertain is.

The foregoing statement is sufficient to enable us to understand the question in the case. No equitable issue is involved. It is simply a trial of title subject to the admission that Frank Miller was the legal owner in fee at the time of his death. The plaintiffs have no interest whatever, unless that title, or some part of it, was cast upon them by descent. This being the nature of their claim, a finding for them on the first count of the petition would entitle them to a recovery of the possession of the premises upon the second. This action, in its nature and purpose,...

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7 cases
  • Chapman v. Chapman, 31117.
    • United States
    • Missouri Supreme Court
    • December 1, 1934
    ...burden they have not carried. They are then still nothing more than strangers and their interventions were properly dismissed. Buckhorn v. Greenwood, 208 S.W. 59; Daudt v. Musick, 9 Mo. App. 169; 18 C.J. 872, sec. 126. (a) The statutory presumption of death provided in Section 1709, Revised......
  • Chapman v. Chapman
    • United States
    • Missouri Supreme Court
    • February 23, 1934
    ...be the subject of reasonable question, in the light of the decisions of our Supreme Court and Appellate Court, in the cases of Buckhorn v. Greenwood, supra; Daudt Musick, supra. (3) Under all known rules of construction Fannie H. Higbee and Louisa H. Chapman were, under the provisions of th......
  • Clapper v. Lakin
    • United States
    • Missouri Supreme Court
    • December 20, 1938
    ... ... The burden of proof was upon plaintiffs to show that they ... were heirs at law of Merit Clapper. Buckhorn v ... Greenwood, 208 S.W. 59; Reed-Smith v ... Lockridge, 65 P.2d 345; In re Leslie's ... Estate, 161 N.Y.S. 790, 175 A.D. 108; In re ... ...
  • Russell v. Nelson
    • United States
    • Missouri Supreme Court
    • May 24, 1927
    ...137 Mo. 636; Farmers Bank v. Harrison, 57 Mo. 503; In re Koehler, 174 Mo.App. 297; Secs. 320, 3720, 7054, 7056, R. S. 1919; Buckhorn v. Greenwood, 208 S.W. 59; v. Ash, 169 Mo. 283; State ex rel. v. Guinotte, 275 Mo. 298; Magoun v. Bank, 170 U.S. 283; Watson v. Alderson, 146 Mo. 333; Braeuel......
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