Fiene v. Kirchoff

• Decision Date: 20 June 1903
• Citation: 75 S.W. 608,176 Mo. 516
• Court: Missouri Supreme Court
• Parties: FIENE et al. v. KIRCHOFF et al.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 608

176 Mo. 516

FIENE et al. v. KIRCHOFF et al.^*

Supreme Court of Missouri, Division No. 1.

June 20, 1903.

JUDGMENTS—RES JUDICATA—PARTIES—INFANTS —DEFENSE BY GUARDIAN —ESTOPPEL.

1. Where, in an action to foreclose a mortgage given by plaintiffs' ancestor and defendant, to which plaintiffs and defendant were parties, it was determined that the deed under which plaintiffs' ancestor claimed title vested the fee of the land conveyed in her, and a judgment, which was unappealed from, was rendered, foreclosing the mortgage as to the entire estate, such judgment was res judicata of such question.

2. That plaintiffs were minors, and defended such prior action by a guardian ad litem, after being personally served with process, did not affect the conclusiveness of such judgment as to them.

3. Where plaintiffs alleged that a prior action, in which a deed to their ancestor under which they claimed title was construed, was brought about by the misconduct of defendant in requiring such ancestor to give a mortgage to secure defendant's debt, and afterwards fraudulently contriving to have the holder of the mortgage bring such prior suit to foreclose the same, in order that defendant might purchase the land, and thereby cut out plaintiffs' rights in the property, plaintiffs were estopped to plead that plaintiffs and defendant were not adversary parties in such prior suit, and that therefore the judgment therein was not res judicata as to them.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Amelia Fiene and others against Fritz Kirchoff and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Alexander Graves and John Welborn, for appellants. John E. Burden, for respondents.

MARSHALL, J.

This is a bill in equity to divest title out of the defendant, and vest it in the plaintiffs, as to five-sixths of a certain tract of 120 acres of land in Lafayette county. The plaintiffs are the children of the defendant Fritz Kirchoff and his deceased wife, Mary. The case made is this:

On December 27, 1867, Mary Patrick conveyed the land to Fritz Kirchoff for a consideration of $3,000. Kirchoff paid $1,100 in cash, and executed a mortgage on the land to Mrs. Patrick to secure the balance of the purchase money, which was evidenced by a note for $1,000 payable at one year, and a note for $900 payable at three years. The note for $1,000 was paid. Fritz Kirchoff alone signed the mortgage, from which it would seem that he was unmarried at that time. On September 5, 1869, Fritz Kirchoff and his wife, Mary, conveyed the land to his father, Henry Kirchoff, for an alleged consideration of $1,500, but in fact the conveyance was voluntary. By the same deed they also conveyed "the goods, household furniture, farming utensils, beasts of all kinds in my possession and belonging to me the said Fritz Kirchoff." On August 6, 1872, Henry Kirchoff and his wife conveyed the land to Mary Kirchoff by the following deed:

"Know all men by these presents that we Henry Kirchoff, and Charlotte Kirchoff, wife of the said Henry Kirchoff of the county of Lafayette, in the state of Missouri, have this day for and in consideration of the sum of fifteen hundred dollars, to the said Henry Kirchoff in hand paid by Mary Kirchoff, of the county of Lafayette, in the state of Missouri, granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Mary Kirchoff the following described tracts or parcels of land situate in the county of Lafayette in the state of Missouri, that is to say: the southwest quarter of the southwest quarter of section ten (10) also the northeast quarter of section sixteen (16), also the northwest quarter of the northwest quarter of section fifteen (15) all in township number forty-eight (48), and range number twenty-four (24) containing 120 acres in all more or less.

"Conditioned, however, that the above-mentioned tracts of land shall be the property of Mary Kirchoff for the use of herself and the children of Fritz Kirchoff and herself, and the said Mary Kirchoff shall hereby have no authority to sell the same after the death of her husband Fritz Kirchoff.

"To have and to hold the premises hereby conveyed with all the rights, privileges and appurtenances thereto belonging or in any wise appertaining unto the said Mary Kirchoff, her heirs and assigns, forever.

"We the said Henry Kirchoff and Charlotte Kirchoff hereby covenanting to and with the said Mary Kirchoff her heirs and assigns, for herself her heirs, executors and administrators, to warrant and defend the title to the premises hereby conveyed against the claim of every person whatsoever.

"In witness whereof, we have hereunto subscribed our names, and affixed our seals this 6th day of August A. D. 1872.

                                   his
                           "Henry  X  Kirchoff.   [Seal.]
                                  mark
                                      her
                           "Charlotte  X  Kirchoff. [Seal.]"
                                     mark
                

Thus the matter stood until April 24, 1875, when Fritz Kirchoff and Mary, his wife, borrowed $1,000 from one Johnson for one year, and gave a mortgage on the land to secure the same. With this money they paid off the balance due on the mortgage to Mrs. Patrick, and she released her mortgage on the margin of the record on April 26, 1875. On April 21, 1877, Fritz and Mary Kirchoff borrowed $1,000 from G. F. Brockmann, guardian of Carl Brockhoff, payable one day after date, and secured it by giving a mortgage on the land. With this money they paid off the Johnson mortgage, and it was released on the records. Brockmann assigned the note to Mrs. Jeanette J. Tate. Mary Kirchoff died. Fritz quit paying the interest on the loan, and Mrs. Tate instituted a suit to foreclose the mortgage. Fritz and the plaintiffs were made parties defendant, and were all properly served with summons. A guardian ad litem was appointed for the children, who were all minors. The petition charged that the money secured by the mortgage was borrowed by Mary Kirchoff for her own use and that of her children, and to pay off an incumbrance securing a part of the purchase price of the land. The defendants demurred generally. Upon the argument of the demurrer, it was agreed between counsel, in writing, that in order to raise "a pure question of law on the construction of the deeds and notes mentioned and referred to in plaintiffs' petition, and the transactions based thereon," the plaintiffs withdrew the allegation of the petition that the money secured by the mortgage was borrowed partly to pay off the balance due of the purchase money, pending the decision on the demurrer, with leave to reinsert that allegation after the demurrer was passed upon. The demurrer was then argued. Mrs. Tate contended that the whole fee was vested in Mary Kirchoff, and that the mortgage covered the whole fee, and the defendants contended that Mary Kirchoff had only an undivided one-sixth interest in the land, and that the remaining five-sixths were vested in her children, the plaintiffs in the case at bar, and therefore Mary could only mortgage her one-sixth interest. The court overruled the demurrer. The defendants answered over; the answers raising the same question as the demurrer, with a question of fact as to the validity of the assignment of the note by Brockmann to Mrs. Tate. The case was then tried, and resulted on December 16, 1882, in a decree of foreclosure. Among the other findings by the court were, first, that Mary Kirchoff made the mortgage to Brockmann "for the purpose of borrowing money for the use of herself and the children of herself and said Fritz Kirchoff, and for paying off an incumbrance upon the land created thereon by said Mary and Fritz Kirchoff to pay the balance of the purchase money remaining due and unpaid"; and, second, "the court further finds and declares that the fee-simple title in and to said lands aforesaid by reason of the premises aforesaid is bound for and charged with the payment of the balance of said mortgage debt and interest, and that such charge and lien on said...