Fiene v. Kirchoff
| Decision Date | 02 July 1903 |
| Citation | 75 S.W. 608,176 Mo. 516 |
| Parties | FIENE et al., Appellants, v. KIRCHOFF et al |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.
Affirmed.
Alexander Graves and John Melborn for appellants.
(1) The effect of the deed was to constitute Mary and the children tenants in common, each of the undivided one-sixth of the land. Allen v. Claybrook, 58 Mo. 126; Hamilton v. Pitcher, 53 Mo. 334; Powell v. Powell, 96 Am. Dec. 372; s. c., 5 Bush (Ky.) 619; McNair v Craig, 36 S.C. 100; Wallace v. Craig, 27 S.C 514; Waddell v. Waddell, 99 Mo. 345; Cross v Hock, 149 Mo. 341; Hunter v. Patterson, 142 Mo. 320; Donnan v. Intelligencer, 70 Mo. 174; Budd v. Brooke, 43 Am. Dec. 338; Berry v. Billings, 69 Am. Dec. 107. (2) The deed conveyed to Mary a dry trust which the statute of uses immediately executed in her, vesting the legal and equitable title in the "children." Pugh v. Hays, 113 Mo. 431; Walton v. Ketchum, 147 Mo. 217; McNair v. Craig, 36 S.C. 100; Wallace v. Craig, 27 S.C. 514; 1 Perry on Trusts (2 Ed.), pp. 4-5, sec. 6; Lane v. Ewing, 31 Mo. 75; Leeper v. Taylor, 111 Mo. 324. (3) On the face of the decree the question whether Mary owned one-sixth and the children five-sixths undivided interest, was never directly adjudicated. To be res judicata a decision must have been made "directly upon the point" of their interest, and further it must have been made "directly upon the point" that the mortgage covered such interest of the children. It is not res judicata upon "any matter to be inferred by argument from the judgment." 1 Greenleaf on Ev. (15 Ed.), sec. 528; Ridgely v. Stillwell, 27 Mo. 132; Graham v. Railroad, 3 Wall. 705; Dennison v. U.S., 168 U.S. 249. It is not res judicata because none of these questions was presented by the pleadings in the foreclosure suit for consideration, the whole defense therein resting on invalidity of assignment of note to assignee. Nor on the issues made in that suit was an adjudication of these points "necessary to a decision of the questions involved." Swan v. Railroad, 120 Mo. 37; Nickerson v. City of Mexico, 58 Mo. 65. It is not res judicata because in that suit these children and Fritz Kirchoff, through whom the trust company claims, were not adversary parties. Miller v. Gillespie, 59 Mo. 222; Bank v. Bartele, 114 Mo. 276; McMahan v. Geiger, 73 Mo. 148. The decree would have been void even if in unmistakable terms it had foreclosed the mortgage against these children's interest, they being no party to the mortgage. Nor does this decree ad rem bind these children as to their interest, as privies thereto, their rights antedating said foreclosure suit. "No one is privy to a judgment whose possession to the rights of property thereby affected accrued previously to the institution of the suit." Henry v. Woods, 77 Mo. 281; Koontz v. Kaufman, 31 Mo.App. 409; Freeman on Judgments, sec. 162.
John E. Burden for respondents Hall and New England Loan & Trust Company.
The construction of the deed of Henry Kirchoff and wife to Mary Kirchoff, and the question of the power of Mary Kirchoff to bind the fee simple title of the lands by mortgage executed in the lifetime of her husband, Fritz Kirchoff, was settled and determined against the claim of the appellants, by the circuit court of Lafayette county, Missouri, in the case of Tate et al. v. Kirchoff et al. Murphy v. DeFrance, 101 Mo. 151; Givens v. Thompson, 110 Mo. 432; State ex rel. v. St. Louis, 145 Mo. 551; Nave v. Adams, 107 Mo. 414; Caldwell v. White, 77 Mo. 471; Garton v. Butts, 73 Mo. 274; Armstrong v. St. Louis, 69 Mo. 309. The judgment in the Tate case is conclusive of all questions within the issue, whether formally litigated or not. The principle of res judicata extends not only to questions of fact and of law which were decided in the former suit, but also to grounds of recovery or defense which might have been but were not prosecuted. Harmon v. Auditor of Public Accounts, 123 Ill. 122.
Wm. H. Chiles for respondent Kirchoff.
The meaning of the deed is no longer an open one; it was in issue directly and decided in the suit of Tate v. Fritz Kirchoff and the present plaintiffs on the foreclosure of the mortgage made by Mary Kirchoff and husband to borrow money used by them in paying off an outstanding incumbrance superior to the title of Mary Kirchoff. The circuit court had cognizance of the subject-matter in that action, and had jurisdiction over the parties, and the judgment is final and valid, however irregular, erroneous and wrongful, until set aside or reversed on appeal or writ of error. Hope v. Blair, 105 Mo. 93; Adams v. Cowles, 95 Mo. 506; Bosenheim v. Hartsook, 90 Mo. 357; Crispen v. Hannavan, 50 Mo. 419; Ridgely v. Stillwell, 27 Mo. 128; Freeman on Judgments (2 Ed.), secs. 248, 249, 157, 158, 162, 165; 1 Greenleaf on Ev. (5 Ed.), secs. 522-523; Cooley v. Warren, 53 Mo. 169. The petition in the foreclosure case asked that the fee simple title be charged with the mortgage debt and the court so found and adjudged; hence, this question was directly, not merely collaterally, considered as in the cases cited (27 Mo. 128, and 45 Mo. 265). And the sale under the decree of foreclosure carried the fee simple and all the interest of all the appellants in the land. Kopp v. Blessing, 121 Mo. 396. The informality of a judgment even to the extent of granting a relief not contemplated by the petition when the parties are before the court, and relief within its jurisdiction, is not void and can not be collaterally attacked. O'Reilly v. Nicholson, 45 Mo. 160. Even if the petition did not lay a foundation for the relief given. Gray v. Bowles, 74 Mo. 423. A court having jurisdiction of the subject-matter of a suit and the parties to a suit has jurisdiction to decide contrary to law, just as great as to decide in conformity to law. Howard v. Railroad, 134 Mo. 479; Miles v. Davis, 19 Mo. 408; Myers v. McRay, 114 Mo. 377; Hagerman v. Sutton, 91 Mo. 519; Hoskenson v. Adkins, 77 Mo. 537; Corley v. McKeag, 57 Mo.App. 415. Appellants, however, contend that because Fritz Kirchoff and his children were not adversary parties in the Tate case, that judgment was not res judicata. The appellants are bound by that judgment because they were parties to it. Fritz Kirchoff in this case stands in the shoes of the Tates, who were the adversaries of the appellants in that action, and is a privy in estate of the Tates, and occupies the same attitude and is entitled to the same rights as the Tates would had they bought. Henry v. Woods, 77 Mo. 281; Young v. Byrd, 124 Mo. 590; Freeman on Judgments (2 Ed.), secs. 165, 162; Horstmeyer v. Connors, 51 Mo.App. 394; Payne v. Masek, 114 Mo. 631.
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 one hundred and twenty 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 three thousand dollars. Kirchoff paid eleven hundred 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 fifteen hundred dollars, 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:
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