Jones v. Park

• Decision Date: 02 June 1920
• Citation: 222 S.W. 1018,282 Mo. 610
• Parties: WILLIAM ZOLLIE JONES et al. v. ELIHU PARK, Appellant
• Court: Missouri Supreme Court

222 S.W. 1018

282 Mo. 610

WILLIAM ZOLLIE JONES et al. v. ELIHU PARK, Appellant

Supreme Court of Missouri, First Division

June 2, 1920

Appeal from Platte Circuit Court. -- Hon. Alonzo D. Burnes, Judge.

Reserved and remanded.

Haff Meservey, German & Michaels, Samuel D. Newkirk and Anderson & Carmack for appellant.

(1) The court erred in admitting in evidence the decree of the Kentucky court construing the will. (a) Because there was no evidence that such court acquired jurisdiction of this defendant or Laura Park or Mary Park, as alleged in the petition. Roach v. Burns, 33 Mo. 319; Sevier v Roddie, 51 Mo. 580. (b) Because the pretended notice to defendant of such suit by letter was not admissible under the pleadings, and such notice was insufficient and of no effect both under the laws of Kentucky and the laws of this State. Murdock v. Hillyer, 45 Mo.App. 287; Preist v. Capatain, 236 Mo. 446; Stanton v. Thompson, 234 Mo. 7; Davis v. Montgomery, 205 Mo. 271; Schell v. Leland, 45 Mo. 289; Myers v. McRay, 114 Mo. 377; Tourville v. Wabash Railroad Co., 61 Mo.App. 527. (c) Because the plaintiffs in this suit were not adversary parties in the Kentucky suit to this defendant and those under whom he claimed. McMahen v. Geiger, 73 Mo. 145; State Bank of St. Louis v. Bartle, 114 Mo. 276; O'Rourke v. Lindell Ry. Co., 142 Mo. 343; 23 Cyc. p. 1279. (d) Because the decision of the Kentucky court cannot determine the title to real estate in Missiouri. Applegate v. Smith, 31 Mo. 166. (2) The court erred in failing to find that Mary Park was seized of a vested estate and that Elihu Park is entitled to an undivided three-eights in the land by inheritance. Sec. 583, R. S. 1909; Cross v. Hoch, 149 Mo. 325; Small v. Field, 102 Mo. 104; Brooks v. Brooks, 187 Mo. 476; Griffith v. Witten, 252 Mo. 627; Sevier v. Woodson, 205 Mo. 202; Roth v. Rauschenbusch, 173 Mo. 582; Cornet v. Cornet, 248 Mo. 184; Tindall v. Tindall, 167 Mo. 218; Deacon v. St. Louis Union Trust Co., 271 Mo. 669; Armour v. Frey, 226 Mo. 646; Waddell v. Waddell, 99 Mo. 338; Chew v. Keller, 100 Mo. 362; Youcum v. Siler, 160 Mo. 281. (3) Defendant is not estopped by the recitals in the deeds. Shields v. McClure, 75 Mo.App. 631; Spurlock v. Sproule, 72 Mo. 503; Blodgett v. Perry, 97 Mo. 263; Crockett v. Morrison, 11 Mo. 3; Hempstead v. Easton, 33 Mo. 142. (4) The court erred in admitting in evidence the laws and statutes of Kentucky offered by plaintiffs. Flato v. Mulhall, 72 Mo. 522; Meyer v. McCabe, 73 Mo. 236. (5) The court erred in refusing to hold that the words, "die without issue," in the codicil, referred only to the death of Laura Park prior to the death of the testator. Dameron v. Lanyon, 234 Mo. 627; 40 Cyc. 1712.

Guy B. Park and A. D. Gresham for respondents.

(1) As an original proposition, the fair and reasonable construction of the will and codicil, so far as it relates to the interests of Laura Park and her daughter Mary Park-Thompson, is that Mary, having predeceased her mother, and Laura having died without issue living, the fee vests in her deceased sisters, or the children of her deceased sisters. R. S. 1909, sec. 2873; Gannon v. Pauk, 200 Mo. 75; Trust Co. v. Kirby, 255 Mo. 416; Collier v. Archer, 258 Mo. 383; Threlkeld v. Threlkeld, 238 Mo. 459; Armour v. Fry, 226 Mo. 646; Gannon v. Albright, 183 Mo. 238; Gibson v. Gibson, 239 Mo. 490; Monroe v. Collins, 95 Mo. 33; Haines v. Tolson, 73 Mo. 320; Cox v. Jones, 229 Mo. 53; Sullivan v. Garesche, 229 Mo. 476; Deacon v. Trust Co., 271 Mo. 669. (2) The defendant cannot question the title given by himself, or hold possession of the land in the face of his own deeds. Moss v. Ardrey, 260 Mo. 611; Orchard v. Store Co., 264 Mo. 563; Steel v. Culver, 158 Mo. 136; Herndon v. Yates, 194 S.W. 48. Nor can the consideration be inquired into by parol testimony. Pile v. Bright, 156 Mo.App. 301. (3) Where reliance is placed on a foreign judgment the presumption is that such court had authority to render the judgment in question, and that the necessary jurisdiction was acquired properly. Leiber v. Leiber, 239 Mo. 48; State ex rel. v. Williamson, 57 Mo. 192; Assurance Co. v. Waldron, 238 Mo. 61; Seymour v. Newman, 77 Mo.App. 578. Appellant apparently misconceives the purpose of the warning order under the statutes of Kentucky. The warning order under the statutes of Kentucky is itself the notice to and the service upon nonresidents, just as publication of notice in a newspaper by the court clerk is service of notice to nonresidents under the laws of this State. Under the Kentucky statutes, this warning order is published by the clerk by writing it on the back of the petition, instead of publishing it in a newspaper. Bank of Kentucky v. Hunt's Heirs, 93 Ky. 75; Hoffman v. Brungs, 83 Ky. 405; Wilson v. Teague, 95 Ky. 47; Irish Bldg. & Loan Assn. v. Clemons, 78 Ky. 82; Brownfield v. Dyer, 7 Bush. 507. As a matter of comity, this court in construing that statute, will follow the rulings from the Supreme Court of Kentucky. Handlin v. Burchett, 270 Mo. 118. (4) Defendant and those under whom he claims having adopted the decree of the Kentucky court construing the will and having acted thereon and in accordance therewith, defendant cannot now question its validity, force or effect. McCune v. Goodwillie, 204 Mo. 306; State ex rel. v. Homer, 164 Mo.App. 354; Cochran v. Thomas, 131 Mo. 277; Gulick v. Huntley, 144 Mo. 249. (5) The title of Laura Park to the Platte County lands was acquired by funds from the sale of the 138 acres deeded to her by the master commissioner, appointed by the court in the Kentucky suit, and by the money distributed to her by the trustee appointed by the court in that suit. Through them, her grantors, she acquires title. One claiming title to land is bound by a decree rendered against his grantor in a former suit, as to all matters of fact and law which were in issue in the former case. Foote v. Clark, 102 Mo. 394. If a party cannot make out a title, but by a deed or other instrument which leads him to a knowledge of another fact, he shall be deemed to have knowledge of that other fact. Loring v. Groomer, 110 Mo. 641; Hagerman v. Sutton, 91 Mo. 533.

GOODE J. Woodson, J., absent.

OPINION

GOODE, J.

This action was instituted against eight defendants besides the appellant Elihu Park, for the partition of 445.76 acres of land in Platte County, Missouri. As all the other parties submitted to the judgment of the court below, the appellant will be spoken of as the defendant, and as he acquiesced in the judgment in so far as it affected twenty-nine acres of the total number of acres involved, that parcel will be understood as not included, unless specially mentioned, when we speak of the lands affected by the judgment.

Elihu Park was the husband of Laura Park, who died June 6, 1916, owning the lands in suit. They were married in Kentucky, where Mrs. Park resided, November 8, 1871, and immediately thereafter came to Platte County, Missouri, where they lived until 1914. One daughter, Mary Park, was born to them October 4, 1874. She married Stuart Thompson, and died June 4, 1900, in the lifetime of her mother, leaving no children or descendants surviving her. Before her marriage Laura Park was Laura Ragan (or Regan: the name is spelled both ways in the record), one of the eight daughters of William Ragan, of Montgomery County, Kentucky, who died in 1881, leaving a last will, which was admitted to probate in the County Court of Montgomery County, December 21, 1881. The will was signed, published and witnessed September 2, 1867; but a codicil was added April 20, 1871. The eight daughters, who were the only children of the testator, were living at the dates of the will and of the codicil; and six of them were then married; but Laura (after November 8, 1871, Laura Park) and Anna Eliza (later Anna E. Burchett, were unmarried. Portions of the will are not relevant to the points involved in the present appeal, except that they show the intention of the testator was to equalize the distribution of his estate among his daughters, and, with that statement of their effect, they will be omitted. The material parts are as follows:

"2nd. It is my will that my children Louisa Patterson, Mary C. Reid, Elizabeth Everett, Willie Benton Sarah Bridges, Fannie Jones, Laura Ragan, Anna Eliza Ragan, shall have equally all my real and personal estate, but the lands shall belong to them and their children for their own separate use and benefit not subject to the control, debts or liabilities of their said husbands; and the same shall belong exclusively to my said daughters. It is my will that if any of my daughters should die, before or after I do, the portion so coming to my daughter to come to and belong to her child or children. . . .

"I will that my personal estate consisting of money, stock, bank stock, etc., shall be sold by my executors and be equally divided among my heirs, but the same shall be laid out in land by my executors, and the lands so purchased, with said money, shall belong to my daughters and their children for their separate use and benefit, but it is my will if my daughters Laura and Anna Eliza, or either of them are unmarried at my death, their portion of my personal estate shall not be invested in land, but the same put to interest by my executors, who shall manage the same and the interest paid annually to my said daughters, and this with their portion of my real estate (the rent thereof) I deem sufficient for their support, but after my said daughters' marriage, or before if they so desire, the said fund shall be vested in land as before named, my executor shall execute this trust, and the land so purchased shall belong to my said daughters exclusively, for their own use and benefit and their children.

"It is...