Couch v. Harp

• Decision Date: 22 February 1907
• Citation: 201 Mo. 457,100 S.W. 9
• Parties: COUCH et al. v. HARP et al.
• Court: Missouri Supreme Court

100 S.W. 9

201 Mo. 457

COUCH et al. v. HARP et al.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. JUDGMENT — EVIDENCE OF JUDGMENT — RES ADJUDICATA.

Evidence under a plea of res adjudicata considered, and held not to prove that there had been a former trial of the case on the merits.

2. SAME — CONCLUSIVENESS OF ADJUDICATION — JUDGMENTS CONCLUSIVE — NATURE AND REQUISITES.

Where the subject-matter, cause of action, persons interested and parties of a former suit are identical with those of a subsequent suit, the judgment in the former action is res adjudicata.

3. SAME — NATURE OF JUDGMENT — DISMISSAL

Judgment in a former action is not res adjudicata where there was no trial and judgment on the merits of the controversy, but a dismissal of the action by agreement at the plaintiffs' cost.

4. TRUSTS — RESULTING TRUSTS — CONSIDERATION — PAYMENT BY ONE PERSON — TRANSFER TO ANOTHER.

Where the purchaser of land is insane, and pays the purchase money and directs that the deed be made to one of his children, the property will be held by such child in trust, and cannot be deemed a gift.

5. SAME — ACTIONS TO ESTABLISH — EVIDENCE.

Evidence in an action to establish a resulting trust considered, and held not to show that one of the defendants derived title to the property in controversy through a title bond given him by a former record owner.

Appeal from Circuit Court, Ralls County; David H. Eby, Judge.

Action by Harry H. Couch and others against Margaret L. Harp and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Roy & Hays, for appellants. J. O. Allison and E. L. Corwine, for respondents.

GRAVES, J.

Action to declare a trust in 55 acres of land in Ralls county, and to partition the same among the beneficiaries of the trust. Plaintiffs and defendants, with the exception of Henry C. Harp, are the heirs at law of Jacob W. Couch, deceased. Henry C. Harp, defendant, is the husband of defendant Margaret L. Harp, who is a daughter and one of the seven children of said Jacob W. Couch. By the petition it is charged that the land in question was conveyed by Andrew J. Rice and wife to defendant Margaret L. Harp, but that the purchase price of $400 was paid by Jacob W. Couch, who at the time and for a long time prior was insane, and so remained insane to the date of his death, and that he was in no mental condition to make a valid gift to Mrs. Harp, either in money or land. Plaintiffs asked the court to declare that Margaret L. Harp held the land in trust for herself and the other heirs of said Couch, deceased, and to partition it among them. The joint answer of defendants Margaret L. Harp and Henry C. Harp admit the allegations of the petition as to the death of Jacob W. Couch intestate, and the legal heirs of said Couch; admit that they are in possession and had been since November 21, 1895; admit the execution of the deed by Rice and wife on November 21, 1895, but as to this transaction they add: "These defendants deny that neither the said Margaret L. Harp nor said Henry C. Harp at said date or at any other time paid the purchase price of said lands or any part thereof, and that the purchase price was paid by Jacob W. Couch, and aver that the purchase price of said lands was paid at least in part by Henry C. Harp. And defendants deny each and every allegation in said petition contained not hereinabove specially admitted to be true." There then follows a plea of former adjudication. The guardian ad litem of the other defendants admits the title to the land as pleaded by the plaintiffs. Reply was general denial. On the trial it was admitted that Jacob W. Couch was of unsound mind as alleged in the petition. It was conclusively shown that he paid to Rice the $400 for the land, and directed the deed made to Margaret L. Harp. It was further shown, as charged in the petition, that Rice was and had been at all times insolvent. Although not specifically pleaded by Harp, it was developed by the testimony of a witness for plaintiff, George P. Rice, that he (witness) held at one time title to the land; that while he so held title, with the consent of his father, A. J. Rice, he sold the land to Henry C. Harp for $400, taking notes for the purchase price, and giving a bond for a deed; that he then conveyed to A. J. Rice, his father. This testimony seems to have gone without objection. The same witness testified that Henry C. Harp had, as he (witness) thought, paid interest on the notes to his father. The notes and alleged bond for deed were not introduced. It also appears from the evidence that Jacob W. Couch, deceased, refused to pay the back interest at the date of the deed. What the amount of the alleged back interest was does not appear; but, whatever it was, the $400 was accepted in full payment for the land. The decree of the court was in favor of plaintiffs and in accordance with the prayer of their petition, both as to declaring the trust and the partition of the land. Motions for new trial and in arrest of judgment proving unavailing, defendants Harps appealed.

1. We will take the question of res adjudicata first, and in disposing of this question a little fuller statement of the facts upon that point will be required. In 1902 the same plaintiffs instituted a similar suit to the one at bar. The defendants were the same, except Isabella A. Couch was a defendant in that case and not in this case. She was the widow of Jacob W. Couch, deceased, and had died prior to the institution of the present suit. Motion for cost bond was filed and sustained in this former suit. Motion was sustained and a cost bond filed. The two Harps filed their joint answer. No guradian ad litem was appointed for the two minor defendants, Elmer and Lizzie Lawson. On this state of the record, the court entered the following order: "On this day comes the parties herein by their respective attorneys, and, by agreement of parties, the court doth grant the plaintiffs leave to withdraw their bond for costs filed in this cause. And thereupon by agreement of the parties herein this cause is by order of the court dismissed at plaintiffs' costs. Wherefore it is considered and adjudged by the court that plaintiffs take nothing by their writ herein, and that defendants go hereof without day and have and recover of the plaintiffs all their costs herein incurred, and have hereof their execution therefor." The abstract before us then shows the following as to the oral testimony upon this...