Foster v. Petree

• Court: United States State Supreme Court of Missouri
• Citation: 149 S.W.2d 851
• Docket Number: No. 37314.,37314.
• Parties: CORA WAGNER FOSTER, Appellant, v. FRANK PETREE, Administrator of the Estate of GEORGE WAGNER ET AL.
• Decision Date: 18 April 1941

149 S.W.2d 851 CORA WAGNER FOSTER, Appellant,
v.
FRANK PETREE, Administrator of the Estate of GEORGE WAGNER ET AL. No. 37314. Supreme Court of Missouri. Division One, April 18, 1941.

Appeal from Nodaway Circuit Court. — Hon. Ellis Beavers, Judge.

REVERSED AND REMANDED (with directions).

Horace Merritt and L.F. Randolph for appellant.

(1) Replying to respondent's Point 1 that appellant's cause of action is barred by Statute of Limitations we stand on our brief and the authorities cited by him are not in point. (2) Plaintiff cannot, he says, maintain this action without returning the amount paid her in settlement of former suit on same cause of action.

J.R. Eiser, Pettijohn & Eiser and Petree & Wright for respondents.

The court held that the attack on the settlement and release would have been barred but for the fact that the original cause of action was not barred, and, under the provisions of Section 654, Revised Statutes 1899 (Sec. 782, R.S. 1929), authorizing the defense of fraud in the procurement of any release or settlement set up as a defense to any action sued on, the Statute of Limitations would not run in favor of such release or settlement until the original cause of action was barred.

DOUGLAS, J.

[1] This suit for fraud went from Holt to Nodaway County on a change of venue. The trial court held three petitions insufficient on demurrer. It rendered a judgment dismissing plaintiff's suit and assessing treble costs against her, in conformity with Section 948, R.S. 1939, Mo.

149 S.W.2d 852

Stat. Ann., sec. 796, p. 1046. Plaintiff then appealed to the Kansas City Court of Appeals which court transferred the case here upon the dissent of one of the judges, who believed the majority opinion in conflict with a ruling of this court. [Foster v. Petree (Mo. App.), 141 S.W. (2d) 131.] Despite this procedure we rehear and determine the case the same as if we had received it by ordinary appellate process. [Const. Amend., Art. VI, Sec. 6.]

The case being before us on a demurrer to the petition, we are necessarily limited to the averments of the petition for the facts. Such as are well pleaded must be considered as true.

The petition is very long and the issues are confused. We will state the facts briefly. When the plaintiff was two years old and after the death of her father, her mother made a contract with George Wagner, the deceased, by which her mother gave plaintiff to Wagner and renounced all her rights in plaintiff. Wagner agreed to take plaintiff into his home and to adopt her as his heir. Plaintiff was taken by Wagner into his home and to all intent she became his natural daughter and took his name and performed all the duties of a natural child. However, Wagner "neglected and failed to make or cause to be made a deed of adoption or to put into legal execution on his part his promise and consideration in said contract between him and plaintiff's mother contained."

Wagner died in 1919 leaving a will in which plaintiff was not named. She filed suit in 1923 while Wagner's estate was in the process of administration against Petree, the administrator with the will annexed, and others named as beneficiaries in the will, seeking to be declared Wagner's adopted child and his pretermitted heir and for a decree that Wagner, as to her, had died intestate.

Before that suit was tried Petree, who was representing himself and the other defendants, admitted that plaintiff was entitled to a decree declaring her to be the adopted daughter of Wagner but advised her that $60,000 of notes held by the estate were valueless and the net worth of the estate was only $10,000, and by such misrepresentation induced her to accept $5,000 as her share as a pretermitted heir of Wagner's estate. A decree was to be entered declaring her to be Wagner's adopted daughter but instead, because of artifice on the part of Petree, her petition was dismissed.

In April, 1932, plaintiff discovered...