Fishback v. Prock

• Decision Date: 22 December 1925
• Docket Number: No. 25090.,25090.
• Citation: 279 S.W. 38
• Parties: FISHBACK et al. v. PROCK et al.
• Court: Missouri Supreme Court

279 S.W. 38

FISHBACK et al. v. PROCK et al.

No. 25090.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Appeal from Circuit Court, Lafayette County; R. M. Reynolds, Judge.

Action in ejectment and partition by Whitsitt P. Fishback and others against Ida F. Prock and husband. Judgment for defendants, and plaintiffs appeal. Affirmed.

See, also, 242 S. W. 962.

Aull & Aull, of Lexington, for appellants.

Lyons & Ristine and Horace F. Blackwell, all of Lexington, for respondents.

Statement.

BAILEY, C.

On December 19, 1919, there was filed in the circuit court of Lafayette county, Mo., a petition in two counts wherein Whitsitt P. Fishback et al. are plaintiffs and appellants, and Ida Fant Prock and Ben Prock are defendants and respondents. The first count is ejectment to recover possession of the undivided seventeen-eighteenths interest in 160 acres of land, more or less, located in Lafayette county, Mo., and described as follows, to wit: The east half of the southeast quarter of section 3, the northwest quarter of the southwest quarter of section 2, and the southwest quarter of the northwest quarter of section 2, all in township 49 of range 29. The date of ouster is stated as September 21, 1918, and the monthly value of the rents and profits of said premises is $100. Said count alleges, and the evidence shows, that the above-named respondents are in possession of of said land.

The second count is an action for the partition of said land.

The above-named defendants appeared to the action, and filed joint and separate answers to each count of petition. They admit that they are husband and wife, but deny all other allegations in both counts of petition. The answer avers that Ida Pant Prock claims title to the land aforesaid, by virtue of an oral adoption of herself, as the child and heir of James E. Fishback, about the year 1890, and also by virtue of an oral contract entered into between said James E. Fishback and said Ida Fant Prock in the latter part of 1912, or the early part of 1913, by the terms of which, said James E. Fishback agreed that, inasmuch as Ernest Fishback, brother of Ida Fant Prock, who had been living in the home of said James E. Fishback ever since he was about 7 years old, and whose adoption also is claimed, was on his deathbed with consumption, and said James E. Fishback, who was then a widower and childless, was about to be left on said farm alone and in ill health, if she (said Ida Fant Prock) and her husband, Ben Prock, would give up their then plans, and move to his home with their children, and if she (said Ida Fant Prock) would take care of and nurse him the balance of his days, he would give her the above farm, alleging that there was full compliance on the part of said Ida Fant Prock and her husband, Ben Prock, with the terms of said agreement, but that said James E. Fishback failed to make a will or deed vesting record title to said land in said Ida rant Prock, and asking that the court decree that Ida Fant Prock was the legal owner of said farm.

Plaintiffs, for reply to the new matter contained in said answer, denied generally and specifically the claims of respondents, and set out in detail their version of the relationship which existed between defendants and said James E. Fishback, and which were inconsistent with any theory of adoption or special agreement relied on by respondents.

The Evidence.

We have been favored with able oral arguments, and exhaustive briefs in this case. We have carefully read, and fully considered, the facts contained in the abstract of record, as well as those found by the trial court in its decree. We are of the opinion that the finding of facts made by the trial court is sustained by clear and convincing evidence, and we hereby adopt the same as follows:

"Now come the parties hereto by their respective counsel and the argument of this cause is resumed, and, the argument being completed and the cause being submitted to the court, and all and singular the pleadings being Been and read and fully heard, and all the evidence being fully considered, the court finds that James E. Fishback late of Lafayette county, Mo., departed this life at said county on or about the 20th day of September, 1918, leaving no widow, and leaving defendant Ida Fant Prock, who is a daughter of his brother, Thomas B. Fishback, commonly called Blakey Fishback, who died before his death, his niece and his daughter by adoption, and that the said Ida Fant Prock was and is his only heir at law.

"The court further finds that, when defendant Ida Fant Prock was about the age of 18 months her Mother died, and that shortly thereafter she was placed by her father in the home of said James E. Fishback; that at this time all the children of the said James E. Fishback were dead, and the said James E. Fishback and his wife were childless; that they desired the companionship and company of children, and expressed a desire to adopt the said Ida Fant Prock, and also to adopt her brother, Ernest Fishback, who was about the age of 7 years; that, a few few months after she had been placed in the home of the said James E. Fishback by her said father, the said James E. Fishback and her father verbally agreed that said James E. Fishback could have said Ida Fant Prock and should also have her brother Ernest Fishback as his children, and should adopt them and make them his own children, and that at his death they should inherit from him as fully and to the same extent as if they were his own children; that about 18 months after the death of her mother said Ida Pant Prock's father died, and from that time until the marriage of Ida Fant Prock in 1905, and the death of Ernest in 1913, the said Ida Fant Prock and the said Ernest Fishback remained in the home of James E. Fishback as his children; that, during the time the said children were in the home of the said James E. Fishback, the said Ernest Fishback was an obedient and dutiful child, and that the said Ida Fant Prock yielded to the control of the said James E. Fishback and rendered him obedience, and felt for him and towards him a strong affection, and that she did his household work and looked after him and waited on him and cared for him as his child, and that at the death of Ernest Fishback in 1913 said Ernest Fishback left no children; that during his lifetime the said James E. Fishback was seized in fee simple and was the owner of the following described real estate, situated in Lafayette county, Mo., to wit: The east half of the southeast quarter of section 3 and the northwest quarter of the southwest quarter of section 2, and the southwest quarter of the northwest quarter of said section 2, all in township 49, range 29.

"The court further finds that, on or about the 9th day of February, 1899, the wife of said James E. Fishback died, and that, in the latter part of the year 1912 and the early part of the year 1913; the said James E. Fishback was living on the land described and was in feeble health; that on or about December 25, 1912, defendants were and had been for several years living on what is known as the John T. Renick farm in Lafayette county, Mo., some distance from where the said James E. Fishback was living on the land above described; that the said James E. Fishback greatly desired the company and affection of the defendant Ida Fant Prock and her children, and desired the personal services, care, and attention of the said Ida Fant Prock, and he proposed and said orally to her that, if she would move to his farm and would nurse him and attend to his wants and wait on him and care for him the balance of his life, he would give her his farm, meaning thereby the land above described; that on or about January 1, 1013, defendant Ida Fant Prock accepted the proposition of said James E. Fishback, and shortly thereafter she and her husband had a sale of the personal effects on said Renick farm, and in February, 1913, moved from said Renick farm to the farm of said James E. Fishback above described, and remained there until his death; that defendant Ida Fant Prock entered the home of the said James E. Fishback and took possession of same and of his said farm, and that during all the time aforesaid she nursed the said James E. Fishback and waited on him and cared for him and attended to all his wants up to the date of his death, and that in doing so she was subjected to great personal inconvenience, and was compelled to and did perform services menial, arduous, and disagreeable; that the said Ida Pant Prock has in all things fully performed all the conditions on her part to be performed, but that, notwithstanding such complete performance, said James E. Fishback failed to adopt her by paper writing executed according to the forms of law, and did not make a will, and did not make a deed or any other conveyance conveying to her the land above described, and that no adequate or sufficient relief in the premises can be had at law."

We will consider the law questions arising in the case in the opinion which is to follow.

Opinion.

I. This case was formerly before Division 1 of this court, and will be found reported in 242 S. W. 962, and following. It appears from the opinion of Judge Ragland in said cause that the trial court had excluded, at the instance of plaintiffs, a certain portion of the proffered testimony of Mrs. Mary E. Mabry, a witness for defendants. The latter then made an offer of proof to show by said witness:

"That Mrs. Fishback, when on her deathbed, told Mrs. Mabry that she wanted her to see to it that Mr. Fishback carried out the promise which he (Mr. Fishback) had made at the time Mrs. Prock and Ernest Fishback came to their house, namely, that he would take them as his own children and make them his heirs, and that, when he died and his wife died, they should have all of their property, and that the deceased, Jim Fishback, was present, and heard the request of his wife, and the reasons given for...