Heger v. Bunch
| Decision Date | 31 December 1928 |
| Docket Number | 27127 |
| Citation | 12 S.W.2d 459,321 Mo. 758 |
| Parties | Frederick Heger and Augusta Heger v. Kate G. Bunch and Harrison K. Bunch, Appellants |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. W. H Falkenhainer, Judge.
Affirmed.
P A. Griswold for appellant.
(1) Prior to 1846 a ceremonial marriage was not necessary to the validity of a marriage in Missouri. Mary Jones was the common-law wife of Thomas Jefferson Payne when she signed the marriage contract November 10, 1846. Cargile v Wood, 63 Mo. 501; Holabird v. Ins. Co., 12 Am. Law Reg. (old series) 566; Adger v. Ackerman, 115 F. 124; Nelson v. Jones, 245 Mo. 579; Plattner v. Plattner, 116 Mo.App. 405; Dyer v. Brannock, 66 Mo. 391. (2) A subsequent ceremonial marriage is not inconsistent with a prior common-law marriage. Adger v. Ackerman, 115 F. 124; Betzinger v. Chapman, 88 N.Y. 487; Starr v. Peck, 1 Hill (N. Y.), 270; Shank v. Wilson, 33 Wash. 612. (3) The marriage contract signed by Mary Jones and Thomas Jefferson Payne, on November 10, 1846, was ineffectual to convey the real estate of Mary Jones to the children of Thomas Jefferson Payne, or to prevent Elizabeth Jones and her brother from inheriting any portion of their mother's estate. Sec. 39, chap. 32, R. S. 1845; Sec. 39, chap. 32, R. S. 1855; Sec. 681, R. S. 1879, p. 112; Brown v. Dressler, 125 Mo. 589; O'Reilly v. Kluender, 193 Mo. 576; Hoskinson v. Adkins, 77 Mo. 537; Shaffer v. Kugler, 107 Mo. 58; Bartlett v. O'Donoghue, 72 Mo. 563; Shroyer v. Nickell, 55 Mo. 264. (4) A decree in partition is void as to the interest of any person in the subject-matter of the partition suit who is not made a party to the suit nor served with process therein. Sec. 4, chap. 152, G. S. 1865, p. 611; Sec. 4, chap. 104, Wagner's Statutes 1872; Sec. 1998, R. S. 1919; Hiles v. Rule, 121 Mo. 248; Fogle v. Pindell, 248 Mo. 65; Carson v. Hooke, 282 Mo. 580; Harper v. Hudgings, 211 S.W. 63; Lilly v. Menke, 126 Mo. 190. (5) The deed from Elizabeth Adair and husband to H. K. Bunch, offered in evidence, was a valid contract and vested in defendant an undivided one-third interest in the estate of her mother, Mary Jones Payne. 2 C. J. 231, 234, 235, sec. 5; 4 Blackstone, 435; Breeden v. Ins. Co., 220 Mo. 327; Story's Equity (14 Ed.), sec. 1412; Gillman v. Jones, 87 Ala. 691; Moore v. Ringo, 82 Mo. 468; Kelleher v. Henderson, 203 Mo. 498; Powell v. Bowers, 279 Mo. 280.
Jeffries, Simpson & Plummer for respondents.
(1) This action was a suit at law and the general finding of the trial court must be affirmed if it is supported by substantial evidence. Frowein v. Poage, 231 Mo. 82; Thompson v. Stillwell, 253 Mo. 89; Pearson v. Heumann, 242 S.W. 946; Saucier v. Kremer, 297 Mo. 461; R. S. 1919, sec. 1970; Journey v. Vikturek, 8 S.W.2d 976. (2) Defendants, alleging a common-law marriage existed, had the burden of proving it by substantial proof. Randazzo v. Randazzo, 236 S.W. 1061; Adair v. Mette, 156 Mo. 496. (3) To constitute common-law marriage there must be a contract followed by cohabitation. 38 C. J. 1316; Perkins v. Silverman, 284 Mo. 238. (4) Where there is no direct, clear, and positive evidence of present contract of marriage, then to prove a common-law marriage there must be shown not only cohabitation but as well a reputation of marriage. Arnold v. Arnold, 267 S.W. 950; Topper v. Perry, 197 Mo. 531; Randazzo v. Randazzo, 236 S.W. 1061; Adair v. Mette, 156 Mo. 496. (5) Adverse possession is available to prove title in suits to quiet title although parties may claim through common source. Peper v. Union Trust Co., 281 Mo. 562; Fulkerson v. Mitchell, 82 Mo. 13; Watson v. Huffman, 204 S.W. 184; Saucier v. Kremer, 297 Mo. 461. (6) Possession by a person under deed absolute in form granting full interest is adverse to the entire world. 2 C. J. 149; Sell v. McAnaw, 138 Mo. 267; Saucier v. Kremer, 297 Mo. 461. (7) Conveyance by one tenant in common of entire tract is ouster of his co-tenants. 2 C. J. 185; Long v. Stapp, 49 Mo. 506. (8) Adverse possession for ten years confers an independent title on the possessor. R. S. 1919, sec. 1305; Waddell v. Chapman, 238 S.W. 481; Franklin v. Cunningham, 187 Mo. 184.
Suit to quiet title to land described in the petition, as follows:
"A lot of ground in blocks 4099 and 4102 of the city of St. Louis, State of Missouri, having a front of three hundred and eighty-five (385) feet on the north line of Magnolia Avenue by a depth northwardly of three hundred and eighty (380) feet to the south line of Botanical Avenue, and bounded east by a line five hundred and twenty-five (525) feet, more or less, west of the west line of Alfred Avenue, or by property now or formerly of John A. Busch and Ada Busch, his wife, on the west by property now or formerly owned by William Remmert, together with improvements thereon, known as 4601 Magnolia Avenue."
The petition is conventional. The answer is a denial of an interest in plaintiffs and an allegation of ownership in the defendants. The reply is a denial of an interest in the defendants and a plea of the statutes of limitations. Judgment was for plaintiffs, and defendants appealed.
Pending the appeal, the defendant Harrison K. Bunch died, and thereafter defendant Kate G. Bunch purchased the alleged interest of Harrison K. Bunch in the land from his heirs. Thereupon she was substituted as appellant in lieu of Harrison K. Bunch, deceased, and the appeal is prosecuted by her as appellant and as successor of her co-appellant.
The facts are as follows:
Mary Jones, a widow with two children -- John G. Jones and Elizabeth Jones -- cohabited in St. Louis County with Thomas Jefferson Payne, a widower with one child -- Benjamin Howard Payne -- from 1840 to 1846. During this time Thomas Jefferson Payne, Jr., and Bryan Mullanphy Payne were born to them. Thereafter, and on November 10, 1846, they entered into a written contract to marry, and were ceremonially married on November 16, 1846. It was agreed in the contract, among other things, "that the real and personal property and all interest therein in law and equity in any and all parts of the State of Missouri that may be, belong to, or be owned by the said Mary Jones at the time of her death shall, after the death of said Mary Jones and not before, go to, belong to, be owned by and vested in Benjamin Howard Payne (son of Thomas Jefferson Payne), Thomas Jefferson and Bryan Mullanphy (sons of Mary Jones) and to such child or children as may be born during said future marriage and to their heirs and assigns forever in equal parts." And "that John Jones (son of Mary Jones) and Elizabeth Jones, her daughter, shall not, under any circumstances whatever, inherit or take any interest either in law or equity in any real and personal estate that the said Mary Jones now has or may have at any time during her lifetime in any part of the State of Missouri." The contract was signed "Thomas J. Payne," and "Mary Jones." They made acknowledgment as single persons.
Edward Howard Payne was born to Thomas Jefferson Payne and Mary Jones Payne after the ceremonial marriage. Their son Bryan Mullanphy Payne died in infancy. Mary Jones Payne died in 1853, the owner of the land involved in this litigation and leaving as her only heirs Thomas Jefferson Payne (her husband), Elizabeth Jones and John G. Jones (her children by her former husband), Thomas Jefferson Payne, Jr., and Edward Howard Payne, her sons by Thomas Jefferson Payne. John G. Jones died in 1866, leaving no child or descendants of a deceased child. Thomas Jefferson Payne died in 1867. Benjamin Howard Payne (son of Thomas Jefferson Payne by his first wife) died a few days thereafter, leaving as his heirs Adelia R., Alfred, Nellie L., Robert H., Jefferson and Fannie F. Payne.
On June 30, 1870, an ex parte partition suit was filed in the Circuit Court of St. Louis County by Thomas Jefferson Payne, Jr., Edward Howard Payne, and the children of Benjamin Howard Payne to partition land then located in St. Louis County and now located in the city of St. Louis, which said land included the land described in plaintiffs' petition herein. Petition was decreed, and the land described in plaintiffs' petition herein as in city block 4099 was set off and awarded to Thomas Jefferson Payne, Jr., and the land therein described as in city block 4102 was set off and awarded to Nellie L. Payne. Elizabeth Jones was not made a party to the partition suit -- no doubt for the reason that under the marriage contract she was excluded from inheriting any property belonging to her mother. Elizabeth Jones married William Adair, and, with her husband, on August 20, 1889, conveyed to appellant Harrison Bunch an undivided one-third interest in all of the land she claimed to own as an heir of Mary Jones.
Mary Jones Payne is the common source of title. Appellant claims an interest in the land by deed from Elizabeth Jones Adair and her husband, who claimed Elizabeth to be the owner of the land by inheritance from her mother, Mary Jones Payne.
Respondents claim to own the land by mesne conveyances from Thomas Jefferson Payne, Jr., and Nellie L. Payne, who, with other parties to the partition suit, claimed to be the owners of the land under the marriage contract.
Appellant contends that at the time of the execution of the marriage contract Thomas Jefferson Payne and Mary Jones were husband and wife under the common law; that her estate in the land described in the petition being a legal estate and not a separate equitable estate, the marriage contract was ineffectual to convey her land or any interest therein, for the reason the certificate of acknowledgment to the contract did not set forth that Mary Jones was made acquainted with the contents of the instrument, nor that she...
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