Jackson v. Phalen

• Citation: 140 S.W. 879,237 Mo. 142
• Parties: JACKSON et al. v. PHALEN et al.
• Decision Date: 20 June 1911
• Court: United States State Supreme Court of Missouri

140 S.W. 879

237 Mo. 142

JACKSON et al. v. PHALEN et al.

Supreme Court of Missouri, Division No. 2.

June 20, 1911.

Rehearing Denied November 14, 1911.

1. APPEAL AND ERROR (§ 987) — REVIEW — EQUITY CASES.

On appeal from a decree in an equity case, the appellate court will review the evidence.

2. MARRIAGE (§ 40) — PRESUMPTION.

Where a woman was married in 1865, and to another man in 1875, it will be presumed that the first marriage had been dissolved, and that the second was valid.

3. MARRIAGE (§ 40) — PRESUMPTIONS — EFFECT.

The presumption of marriage can only be overcome by clear and cogent evidence.

4. EVIDENCE (§ 67) — PRESUMPTIONS — CONTINUANCE OF IMMORAL RELATIONS.

The presumption of the continuance of immoral relations does not arise, where the parties have since married.

5. MARRIAGE (§ 40) — BURDEN OF PROOF — EVIDENCE — SUFFICIENCY.

In an action to quiet title, where plaintiffs' title depended upon the validity of a marriage, evidence held insufficient to overthrow the presumption of its validity.

6. BASTARDS (§ 4) — LEGITIMACY — BURDEN OF PROOF.

In a suit to quiet title, where defendants, by their answer, affirmatively pleaded that a certain child, who inherited the land from his father, and from whom plaintiffs' grantor inherited the land, was not born in lawful wedlock, the burden was upon defendants to prove his illegitimacy.

7. BASTARDS (§ 3) — PRESUMPTION — LEGITIMACY.

The law presumes children to be legitimate.

8. BASTARDS (§ 6) — LEGITIMACY OF CHILD — — PROCEEDINGS — EVIDENCE — SUFFICIENCY.

In an action to quiet title, where defendants had the burden of establishing the illegitimacy of a child who inherited the land from his father, and from whom plaintiffs' grantor inherited, evidence held insufficient to show illegitimacy.

Appeal from Circuit Court, Iron County; Joseph J. Williams, Judge.

Action to quiet title by Mary A. Jackson and others against Richard Phalen and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This action is to quiet title to certain lands which belonged to Joseph C. Howell at the date of his death. The plaintiffs are the subvendees of Sobrina Howell, who elected as the widow of Joseph C. Howell to take one-half of his estate in lieu of dower. At the time of the death of Joseph C. Howell he also left surviving him a little boy, Howard Russell Howell, whom he and said Sobrina Howell had reared and treated as their child, and asserted that he was born about two years after a marriage ceremony between them. After the death of Joseph C. Howell, this child died leaving no issue, and the said Sobrina Howell claimed the balance of said lands as the heir of said boy. She sold the lands to plaintiffs. She also administered on the private estate of said Joseph C. Howell, and received from one of the defendants, Thomas Howell, as administrator of the estate of a partnership between himself and said Joseph C. Howell, the balance due on final settlement of the partnership estate. The defendants are Thomas Howell, the brother and partner of Joseph C. Howell, deceased, and his children, and one Phalen, to whom said Thomas Howell gave a deed to certain of the lands, whereupon plaintiffs filed this suit against said Phalen as defendant. The said Thomas Howell and his children were subsequently made codefendants. The answer of the defendants avers that Sobrina Howell was not the legal wife of Joseph C. Howell, and that the boy, Howard Russell Howell, was neither their offspring nor adopted by them, and that plaintiffs acquired no title as grantees of Sobrina Howell; that defendants are the next of kin and sole heirs of Joseph C. Howell, whose title to said lands was cast upon them by descent. A reply was filed, containing a general denial, and alleging also matters of estoppel. A demurrer to the reply being overruled, the cause was submitted to the court without a jury.

On the trial the following facts were undisputed: A certificate of the marriage of Wm. Brainard and Sobrina Russell on the 29th of November, 1865, in Benton county, Mo.; a certificate of the marriage of Joseph C. Howell and Sobrina Brainard on the 26th of October, 1875, at Kansas City, Mo.; a certificate of the election in writing on the 29th of March, 1888, of Sobrina Howell, as the widow of Joseph C. Howell, deceased, and mother of his son, Howard Russell Howell, then living, to take a child's part of the lands of said Joseph C. Howell; her application on the 5th of January, 1887, for letters of administration on the private estate of said Joseph C. Howell, stating, under oath, that she was his widow, and together with said Howard Russell Howell were his heirs; that letters of administration as prayed were granted to said Sobrina Howell; that two allowances, $200 and $300, respectively, were made to her as widow by the probate court on February 3, 1887, and on the 26th of April, 1887; that said Sobrina Howell, as guardian of said Howard Russell Howell, suggested his death on the 28th of January, 1889, and was ordered to make distribution of his estate; that defendant Thomas Howell, surviving partner of J. C. Howell, as administrator of the partnership estate paid over certain of said assets to Sobrina Howell, as shown in his final settlement on the 25th of November, 1889; that deeds covering all the lands claimed by Sobrina Howell were made, first, of the half belonging to her as widow, and, second, of the remaining half coming to her as the mother of Howard Russell Howell upon his death; that by subsequent deeds all of said lands were conveyed to plaintiffs; that Howard Russell Howell died without issue before Sobrina Howell, and that she subsequently died; that J. C. Howell was the common source of the titles claimed by the respective parties to this suit; that the defendants are Thomas Howell, the brother, and other collateral kindred of Joseph C. Howell, and the grantees of defendant Thomas Howell; that unless the widow and child, recognized as such by Joseph C. Howell at his death, bore these relations to him, then he died without direct descendants. As to this question, the plaintiffs adduced other evidence than that heretofore stated, which tended to prove that after Joseph C. Howell moved to Cape Girardeau and Stoddard counties, and up to his death in December, 1886, he at all times and in every manner acknowledged Sobrina Howell to be his wife, and the boy, Howard Russell Howell, to be his child by her as his wife; that he showed great affection for said child, and, when dying, besought his brother, Thomas Howell, who was his partner in the stave business, to do the right thing by his wife and child in "straightening up the business," which defendant Thomas Howell promised to do; that the witness who gave this testimony further stated defendant Thomas Howell called on her and sought to prevent her from so testifying; that on the 26th of June, 1891, in a suit of Thomas Howell v. H. H. Bedford, it was alleged in the petition "that the said J. C. Howell departed this life December, 1886, and left as his only heirs at law his widow, the said Sobrina Howell, and his only child, Howard Russell Howell; * * * that on or about the 1st day of January, 1889, Howard Russell Howell, the said minor child of J. C. Howell, deceased, departed this life, leaving as his only heir at law his mother, the said Sobrina Howell;" that during the five or six years the said Joseph C. Howell lived in southeast Missouri, he caused Sobrina Howell to join as his wife in many conveyances of real estate made by him, and in every...