Duval v. Duval

• Decision Date: 15 February 1927
• Docket Number: 27094
• Citation: 291 S.W. 488,316 Mo. 626
• Parties: Minnie I. Duval and M. G. Faris v. Mary Duval et al., Appellants
• Court: Missouri Supreme Court

291 S.W. 488

316 Mo. 626

Minnie I. Duval and M. G. Faris v. Mary Duval et al., Appellants

No. 27094

Supreme Court of Missouri

February 15, 1927

Appeal from Clay Circuit Court; Hon. Ralph Hughes, Judge.

Reversed and remanded (with directions).

Beardsley & Beardsley and John D. Taylor for appellants Harris L. Moore for unknown appellants.

(1) The Circuit Court of Clinton County in entering the final judgment under mandate of this court in Faris v. Ewing followed the mandate of this court and entered a final judgment against the plaintiffs. Faris v. Ewing, 183 S.W. 283; Jones v. Hoppie, 9 Mo. 173; Burgess v Cox, 48 Mo. 278; Wenom v. Fosdick, 213 Ill. 70; Freeman on Judgments (5 Ed.) sec. 22; Hartzell v Maryland Co., 139 Ill.App. 366. If we have misinterpreted the per curiam opinion of this court in Faris v. Ewing, then it follows that the title to the undivided one-half interest in the property in controversy is still open for determination. In no event can it be held that it was adjudged by the Circuit Court of Clinton County to be in the heirs of Mary E. Faris, nor that it was the purpose of this court to direct that such a judgment should be rendered. Thompson v. Mcpherson, 124 S.W. 872; International Co. v. Clemens, 66 Wash. 620; Bellamy v. Washita Co., 25 Okla. 792; Kamman v. Barton, 23 S.D. 442; Owen v. Higgins, 113 Iowa 735; Bury v. Smith, 8 Kan.App. 52; 4 C. J. 1216. (2) If the title to the undivided one-half interest in the 240-acre tract in controversy which was in Mollie R. Ewing has not been adjudicated in the case of Faris v. Ewing, it becomes the duty of this court to determine that question. Under a proper interpretation of the provisions of the will of James Duval, and under the other agreed facts, the title to that one-half interest is vested in those who claim under the will of William N. Ewing. Yocum v. Siler, 160 Mo. 281; Gannon v. Albright, 183 Mo. 238; Gannon v. Pauk, 200 Mo. 75; Collier v. Archer, 258 Mo. 383; Yocum v. Parker, 130 F. 722; Messenger v. Anderson, 225 U.S. 441; Underhill on Wills, sec. 468, p. 622. Minnie I. Duval was a party to the suit brought in Ray County in 1898 by William N. Ewing and wife and is barred, in any event, from any claim of title here. (4) Minnie I. Duval, plaintiff herein, is estopped by the covenants of warranty in the deed of trust she executed, together with her husband and others, in 1886.

W. W. Hooper and Inghram D. Hook for respondents.

(1) Opinion of the Supreme Court in Faris v. Ewing, 183 S.W. 280. See Sec. 2535, R. S. 1909; Sec. 1970, R. S. 1919; Ball v. Woolfolk, 175 Mo. 278; Putnam Co. Supply Co. v. Mendote Mining Co., 285 S.W. 409; Bigelow on Estoppel, p. 170; Chouteau v. Gibson, 76 Mo. 38; Freeman on Judgments (5 Ed.) sec. 639. (2) Judgment of the Circuit Court of Clinton County. See: Sec. 2085, R. S. 1909; Sec. 1516, R. S. 1919; Scullin v. Railroad, 192 Mo. 1; Zeitinger v. Dry Goods Co., 309 Mo. 433. (3) Plaintiff Minnie I. Duval is not barred by suit brought in Ray County in 1898 by William N. Ewing and wife. (4) Plaintiff Minnie I. Duval is not estopped by covenants of warranty in deed of trust she executed with her husband in 1886. Sec. 669, R. S. 1879.

Walker, J. All concur, except Graves, J., absent, and Gantt, J., not sitting.

OPINION

WALKER

This is a suit to quiet title to certain land in Ray County. The case was tried in Clay County on change of venue, resulting in a judgment for plaintiffs, from which defendants have perfected an appeal to this court. The statement of numerous preliminary facts, principally of record, is necessary to an intelligent understanding of the issue here involved.

James Duval, the common source of title, died testate in April, 1880. The fifth paragraph of his will is as follows:

"I give and bequeath to my son John C. Duval and my daughter Mollie R. Ewing jointly, the following land, to-wit: The northeast quarter and the east half of the northwest quarter of Section thirty-one (31), in the same township and range before mentioned, containing two hundred and forty (240) acres. These lands are given under these express conditions: That neither of these devisees having any children and that if either die leaving no living child the other shall inherit the entire lands, and if both should die leaving no child or children living, then said lands shall revert to my estate and be divided amongst my other living children or if dead their children if any living. Said lands cannot be sold by said devisees, except for life of either, or the survivor, but if they or either of them shall have any living children then said lands shall be an absolute gift and be treated so in all respects."

The testator, who was a widower upon his death, left surviving him five sons and one daughter. In 1883, four of his sons and their wives conveyed by quit-claim deed to John C. Duval and Mary R. Ewing the land described in the fifth paragraph of James Duval's will. Mary R. Ewing, who intermarried with William N. Ewing, was the daughter of James Duval. No children were born of this marriage.

On December 1, 1886, a daughter was born to John C. Duval and his wife, who was named Mary Ewing Duval. On December 27, 1886, John C. Duval and Minnie I. Duval, his wife, who is one of the plaintiffs in the instant case, and Mary R. Ewing and William N. Ewing, her husband, executed a deed of trust, with covenants of warranty and power of sale, to the land set forth in the fifth paragraph of James Duval's will to secure a debt described therein.

At the May term, 1898, of the Ray County Circuit Court, Mollie R. Ewing and William N. Ewing, her husband, brought suit against the five sons of James Duval and their wives. After setting forth the fifth paragraph of the latter's will they alleged that upon the birth of Mary Ewing Duval the fee simple title to the land described in the will was established in Mollie R. Ewing and John C. Duval, the devisees named therein, and they prayed for a construction of the will and a declaration vesting the fee simple title to the land in them.

All parties being before the court, a decree was entered, July 15, 1898, finding, among other things, that it was the intention of the testator to invest the fee simple title to said land in Mollie R. Ewing and John C. Duval upon the happening of the contingency in the fifth paragraph of his will expressed, viz, upon "a living child being born to either of said named parties." It was therefore decreed and adjudged by the court that the defendants other than John C. Duval and his wife be divested of any and all interest under said will in said lands described in the fifth paragraph of said will, and that the plaintiff Mollie R. Ewing and the defendant John C. Duval be vested with absolute title in fee simple to the lands described in said fifth paragraph.

The deed of trust made December 27, 1886, by John C. Duval and wife and Mary R. Ewing and her husband, William N. Ewing, was, on November 7, 1898, foreclosed and the land sold under the power of sale therein contained and a deed therefor was made to the purchaser. N. F. Frazier. On May 13, 1906, he conveyed the land to the Solitaire Mining Co., which in turn conveyed it to William N. Ewing.

In July, 1901, John C. Duval died intestate. No child was born to him, other than Mary Ewing Duval, who was afterwards intermarried with the plaintiff, M. G. Faris.

At the February term, 1911, of the Circuit Court of Ray County, Mary Ewing Faris brought a suit against William N. Ewing and Mollie R. Ewing, his wife, Robert Waller and the Solitaire Mining & Milling Company. In her petition she alleges that she is the owner in fee simple of the land described in the fifth paragraph of James Duval's will and prays the court to ascertain and determine the estate, title and interest of the plaintiff and defendants, and that she be adjudged to be the owner in fee of said land and awarded damages for the withholding of the possession of same. Defendants William N. Ewing and Mollie R. Ewing filed separate answers, which were the same in all respects, except that Mollie R. Ewing did not claim any interest or title in the lands involved.

These answers set up the chain of title from the United States Government to James Duval for said land; alleges his death in 1880, and that by the fifth paragraph of his will he devised the land to John C. Duval and Mary R. Ewing under certain conditions, quoting that paragraph of the will. They further allege the probate of the will and its entry of record, the birth of Mary Ewing Duval, the execution thereafter by John C. Duval and wife and Mary R. Ewing and husband of the trust deed above set out, the foreclosure thereof, the vesting of title under such foreclosure in N. F. Frazier, the transfers from him to the Mining & Milling Company, and from it to William N. Ewing, and that the latter thereby became seized of an indefeasible estate of inheritance in fee simple to the land. The answer then sets out the bringing of the suit above referred to by Mary R. Ewing in the name of Mollie R. Ewing against John C. Duval and others, in January, 1898, and the entering of the final decree therein July 16, 1898, determining the title to said land in Mary R. Ewing and John C. Duval. A claim of right under adverse possession is then pleaded and the whole is followed with a prayer that the court hear and finally determine the rights, claims and interests of the parties and find that the plaintiff Mary Ewing Faris has no right, title, interest, lien, claim or demand in or to the land, and that she be enjoined and restrained from instituting any suit or action therefor.

Final decree was entered in that suit February 12, 1912, in the Ray County Circuit Court, ordering and adjudging that William N Ewing was the owner of the...