Henderson v. Henderson

• Decision Date: 21 February 1910
• Citation: 126 S.W. 203,141 Mo.App. 540
• Parties: G. L. HENDERSON et al., Appellants, v. HELEN R. HENDERSON et al., Defendants
• Court: Kansas Court of Appeals

126 S.W. 203

141 Mo.App. 540

G. L. HENDERSON et al., Appellants, v. HELEN R. HENDERSON et al., Defendants

Court of Appeals of Missouri, Kansas City

February 21, 1910

Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.

AFFIRMED.

Judgment affirmed.

C. W Prince and C. B. Adams for appellant.

(1) Allowance to widow by probate court and affirmance thereof on appeal to circuit court were not res adjudicata on question of validity of marriage. Probate court has no equitable powers. Church v. McElhinney, 61 Mo. 543; Butler v. Lawson, 72 Mo. 227; Church v. Robertson, 71 Mo. 326; Conley v. Truitt, 63 Mo.App. 356; Johnson v. Jones, 47 Mo.App. 237; Burkhardt v Helfrich, 77 Mo. 376; Ivie v. Ewing, 120 Mo 523; Railroad v. Lowder, 138 Mo. 523; St. Louis v. Hollnah, 175 Mo. 85; In re Glover & Shepley, 127 Mo. 153; Patterson v. Barth, 103 Mo. 402; Brown v. Cole, 136 Mo. 201; Johnson v. Jones, supra; State v. Jones, 53 Mo.App. 207; Burkhardt v. Helfrich, 77 Mo. 376; Butler v. Lawson, 72 Mo. 227; Akes Appeal, 74 Pa. 116; Brian v. Fleming, 135 Mo. 597; Smith v. Gilmore, 13 Mo.App. 155; Smith v. Gilmore, supra; Rifle v. Land Co., 71 Mo.App. 617; Rick v. Downer, 72 Mo.App. 571; Zall v. Sceper, 75 Mo. 460; Merry v. Freeman, 44 Mo. 518; Wagner v. Queen, 67 Mo.App. 617; Cole Co. v. Stover, 56 Mo.App. 107. (2) A judgment of the probate court, affirmed on appeal to the district court is not a bar to an equitable proceeding respecting matters of which the former court had not equitable jurisdiction requisite to determine the facts and adjudge the relief to which the parties were entitled. Gordon v. Kennedy, 36 Iowa 167; Mayor v. Tudor, 74 Tex. 47; Sweeney v. Warren, 127 N.Y. 426; Neilly v. Neilly, 89 N.Y. 352; Reese v. Murman, 5 Wash. 373; Golden v. Whiteside, 109 Mo.App. 519; Purdy v. Gault, 19 Mo.App. 191; Wonderling v. Lafayette Co., 150 Mo. 650; Stevens v. Fitzpatrick, 114 Mo.App. 497; Klent v. Winter, 23 Kan. 492. (3) A court of equity will entertain jurisdiction to annual a void marriage. Weightman v. Weightman, 4 Johns. Ch. ___; Powell v. Powell, 18 Kan. 379; Waymire v. Jetmore, 22 Oh. St. 274. (4) Such a marriage may be annulled after the death of one or both of the parties. Pongree v. Tilden, 41 Vt. 46; Orchardson v. Caffield, 171 Ill. 14; Gathings v. Williams, 27 N. C. (5 Ired.) 487; Bishop, Marriage and Divorce (5 Ed.), sec. 105; Chapline v. Stone, 77 Mo.App. 579; Higgins v. Breen, 9 Mo. 497. (5) The test of mental capacity. Ward v. Dulaney, 23 Miss. 410; Chapline v. Stone, 77 Mo.App. 523; Crump v. Morgan, 38 N. C. (3 Ired. Eq.) 91; St. George v. Biddeford, 76 Me. 593; True v. Rannee, 21 N.H. 53; Browning v. Beane, 2 Phill. Eccles. Rep., 69; Cole v. Cole, 5 Sneed 57; Kern v. Kern, 51 N.J.Eq. 574; Smith v. Smith, 47 Miss. 211; Foster v. Means, 1 Speers Eq. 569; Middleborough v. Middleborough, 12 Mass. 364; Lewis v. Lewis, 44 Minn. 124; Concord v. Rumney, 45 N.H. 423; Ward v. Dulaney, 23 Miss. 410; Bishop on Mar. & Div., sec. 134 Portsmouth v. Portsmouth, 1 Hog. Ec. 355, Eng. Ec. 154; Browning v. Reame, 2 Phillim, 69 Eng. Ec. 190; Orchardson v. Schofield, 40 L.R.A. 265. (6) Where confidence is necessarily reposed by one in another, such relationship is a fiduciary one which invites the watchful and jealous care of a court of equity and renders any transaction between the parties thereto presumably invalid. Cadwallader v. West, 48 Mo. 483; Garvin v. Williams, 44 Mo. 465; Yosti v. Laughran, 49 Mo. 594; Maddox v. Maddox, 114 Mo. 35; Harvey v. Sullens, 46 Mo. 147; State v. Grass, 62 Mo. 226; Rankin v. Patton, 67 Mo. 221; Bridewell v. Swank, 84 Mo. 467; Gay v. Gillillian, 92 Mo. 250; Haglay v. Head, 126 Mo. 619; Lewis v. Lenhart, 127 Mo. 271; Carl v. Gabel, 120 Mo. 283; Lee v. Pearce, 68 N.C. 76; Dingman v. Romine, 141 Mo. 466. (7) The relationship existing between a nurse and an invalid is a fiduciary relationship. Bayliss v. Williams, 6 Cold. (Tenn.) 442; Willard, Eq. Juris., 503; Annot. notes to Hageman v. Basely, 4 My. & Cr. 277; 2 H. L. Cas. 750; Adams Eq. 185. (8) Where a settlement is made on the basis of representations which are fraudulent it may be set aside. Wonderling v. Lafayette Co., 150 Mo. 650; 14 Am. and Eng. Ency. Law, 69; Ruynall v. Sprye, 1 De Gax M. & G. 708; Hayes v. Delzell, 21 Mo.App. 679; Wainell v. Kem, 57 Mo. 492; Cottrell v. Krum, 100 Mo. 397; Judd v. Walker, 114 Mo.App. 140; Bigelow on Fraud, p. 528; Anthony v. Boyd, 15 R. I. 495; Jones v. Chappell, 20 Ky. (5 T. B. Mon.), 422; Converse v. Blumrich, 14 Mich. 109; Mosby v. Leeds, 3 Call (Va.) 439; Ross v. McLauchlan, 7 Grat. 86; Spahr v. Hollingshead, 51 Ky. (12 B. Mon.) 426; Adie v. Prudhomme, 16 La. An. 343; Peter v. Wright, 6 Ind. 183; Dyer v. Jessup, 11 Iowa 118. (9) Although the parties were married in Arkansas, they intended to live in Missouri, and their contract should be governed by the Missouri law. Bishop, Mar. & Div., sec. 404. (10) Even under Arkansas law the marriage was void. Sec. 4906, 4910, Ark. Stat.; Bishop, Marriage, Div. & Sep., sec. 634. (11) Admissibility of opinions of non-expert witnesses as to mental capacity. State v. Klinger, 46 Mo. 229; State v. Erb, 74 Mo. 205; Crowe v. Peters, 63 Mo. 434; Sharp v. Railroad, 114 Mo. 94; Farrell v. Brennan, 32 Mo. 328; Appleby v. Brock, 76 Mo. 314; Baughman v. Baughman, 32 Kan. 538; Stubbs v. Houston, 33 Ala. 555; Chickering v. Brooks, 61 Vt. 554; Foster v. Dickerson, 64 Vt. 233; Moore v. Moore, 67 Mo. 192; Clary v. Clary, 2 Ired. 78.

Jos. S. Rust, T. A. Frank Jones and L. H. Waters for respondents.

(1) The compromise of a doubtful claim is a good consideration for a contract. Reilley v. Choquette, 18 Mo. 226; Wood v. Tel. Co., 123 S.W. 15; Livingston v. Dugan, 20 Mo. 102; Dalkine v. Lume et al., 122 S.W. 776; 1 Parsons on Con. (6 Ed.), p. 438, sec. 4. (2) All who are present at and participate in a settlement and share in its proceeds are bound as to all matters included therein and are estopped from repudiating such settlement. Combs v Sullivan Co., 105 Mo. 235. (3) The compromise was merged in the judgment of distribution. Crim v. Crim, 162 Mo. 544; Freeman on Judgs., secs. 215, 623; Townville v. Railroad, 148 Mo. 623. (4) The effect of an order of distribution by express statute is to settle the claims of the distributees. R. S. 1899, 244, 278, par. 4; Hadley v. Bernero, 103 Mo.App. 558; Cox v. Boyle, 152 Mo. 582; Tilly v. Menke, 126 Mo. 220; Ladd v. Stephens, 147 Mo. 320. (5) The order of distribution was a final judgment. State v. Babb, 77 Mo.App. 280; Freeland v. Wilson, 18 Mo. 380; Price v. R. E. Co., 101 Mo. 116. (6) If the judgment of distribution is ever attacked it must be for fraud in the very act of procuring it. Smith v. Hager, 150 Mo. 444; Hamilton v. McLean, 139 Mo. 685; Hamilton v. McLean, 169 Mo. 58-73. (7) An order of distribution may be read in evidence as an estoppel or in bar without being pleaded. Garton v. Botts, 73 Mo. 278. (8) The order of distribution stands as a judgment against them until a court of equity shall set it aside because obtained through fraud, in a direct proceeding brought for that purpose. Covington v. Chamblin, 156 Mo. 587; Burkharth v. Stephens, 117 Mo.App. 432. (9) Under the contract entered into between the parties, Mrs. Ressor had a right to request or demand that the doctor should comply with the contract, and could not be charged with undue influence had she done so. Cole v. Holliday, 4 Mo.App. 98; Broyhill v. Norton, 175 Mo. 199; Baldrick v. Garvey, 66 Iowa 14; Bank v. Sneed, 97 Tenn. 120. (10) A marriage celebrated in other States and countries if valid by the laws of the State or country where celebrated, is valid in this State. Bank v. Galbraith, 149 Mo. 536; Johnson v. Johnson, 30 Mo. 85; Story on Con. of Laws, secs. 114-119. (11) Under the Arkansas statutes, 1894, section 4910, a marriage procured by fraud is voidable and it becomes void only from the time it is declared void by a proper court. Valleau v. Valleau, 6 Page 207; Gall v. Gall, 114 N.Y. 109, 120; Taylor v. Taylor, 71 N.Y.S. 413; Taylor v. Taylor, 65 N.E. 109; Charles v. Charles, 42 N.W. 935. (12) Where consent was given under duress the marriage is voidable. Willard v. Willard, 65 Tex. 297; Heneger v. Lomas, 44 N.E. 462. (13) A marriage in contravention of a statute prohibiting marriage by an epileptic and providing a punishment is voidable and not void. Gould v. Gould, 78 Conn. 242; Pearsoll v. Chapin, 44 Pa. 9; Mitchell v. Parker, 25 Mo. 34; Wiser v. Lockwood, 42 Vt. 720. (14) A voidable marriage can only be inquired into by a direct proceeding between the parties and during their joint lives. 2 Nelson M. & S., page 534, sec. 569. (15) Marriages are voidable, which are obtained with imperfect consent, as where there is fraud, error, duress or the party is incapable of giving consent from want of age or mental incapacity. And they are good for every purpose until avoided. 2 Nelson M. & S., sec. 569; Clark v. Field, 13 Vt. 460; Schouler on Dom. Rel., sec. 14; 1 Bishop M. & D., sec. 292; 19 Am. and Eng. Ency., p. 1210; Jackson v. Jackson, 94 Cal. 446. (16) The validity of the marriage was sustained by a great preponderance of the credible evidence in the case. Slois v. Slois, 9 Mo.App. 97; Elzey v. Elzey, 1 Houston (Del.) 319; 1 Bishop on Mar. & Div., sec. 599, 600; Payne v. Burdette, 84 Mo.App. 337. (17) A contract made with a person of unsound mind, but not under guardianship is only voidable; and if land is purchased of such a person in good faith and no advantage has been taken, it will be upheld. Blount v. Spratt, 113 Mo. 55; McKenzie v. Donnell, 151 Mo. 455-458; Wells v. Benefit Assn., 126 Mo. 637; 1 Bishop on M. & D., sec. 603; Hughes v. Rader, 183 Mo. 630. (18) The most reasonable test is believed to be the ability to understand the nature of the marriage contract and not...