Keaton v. Jorndt

• Decision Date: 23 June 1914
• Parties: C. L. KEATON, Appellant, v. EMMA JORNDT et al
• Court: Missouri Supreme Court

168 S.W. 734

259 Mo. 179

C. L. KEATON, Appellant, v. EMMA JORNDT et al

Supreme Court of Missouri, Second Division

June 23, 1914

Appeal from Butler Circuit Court. -- Hon. W. S. C. Walker, Judge.

Affirmed.

J. L Fort, W. C. Keaton and Phillips, Lentz & Phillips for appellant.

(1) The first question that presents itself on this appeal is whether the former decision of this court is res adjudicata and therefore binding upon the court in the present appeal, as contended by the defendants. The rule of law is that questions of law determined on a former appeal are concluded only when considered thereafter with reference to the same state of facts. If the essential evidence is thereafter supplied upon a new trial, and a new state of facts appear, the prior ruling is by no means conclusive. Rutledge v. Railroad, 123 Mo. 131; Parker-Washington Co. v. Transit Co., 147 S.W. 191; Williams v. Butterfield, 214 Mo. 427; May v. Crawford, 150 Mo. 525; Bird v. Sellers, 123 Mo. 32; Crispen v. Hannovan, 86 Mo. 187; Timber Co. v. Railroad, 145 S.W. 195; Strottman v. Railroad, 128 S.W. 195; Finnigan v. Railroad, 149 S.W. 628; Smith v. Adams, 130 U.S. 167; Gardner v. Railroad, 150 U.S. 349; Bucher v. Railroad, 125 U.S. 555; Coal Co. v. Patting, 210 Ill. 344; Railroad v. Bentz, 108 Tenn. 670. If the judgment and opinion of this court in the former appeal is conclusive of the rights of the party it must be on the principle of res adjudicata. A judgment of an appellate court, which reversed the judgment of the court of original jurisdiction and remanded the cause to this court for further proceedings, is not a final judgment. A judgment of reversal is only final when it also enters or directs the entry of a judgment which disposes of the case. Smith v. Adams, 130 S.W. 167; Gardner v. Railroad, 150 U.S. 349; Bucher v. Railroad, 125 U.S. 555; Coal Co. v. Patting, 210 Ill. 342; Paving Co. v. Field, 132 Mo.App. 636; Railroad v. Bentz, 108 Tenn. 670; Garrett v. Greenwell, 92 Mo. 120. In the former opinion in this case, the court neither entered a judgment, nor directed the trial court to enter a judgment, which disposed of the case. On the contrary, it expressly directs the trial court to ascertain what the interests of the several parties in the land are. This is one of the vital issues in the case at bar, both when the case was in this court on appeal, and the circuit court. The circuit court is required to find what interest the several parties had in and to the land in controversy. This can only be done by a retrial of the case. The will of Nathan T. Thurber was before the court and the construction to be placed upon that will was one of the vital issues in the case as presented, on the former appeal. Yet the court failed entirely to give a construction of that will or to in any manner declare what the effect of that will was. Consequently, the question of the effect of that will upon the title to the land in controversy, was not passed upon by this court, and the whole question is still open for review. (2) The will of Nathan T. Thurber gives to Carrie E. Thurber a life estate, with the added power to sell and dispose of the fee at any time during her natural life. She did exercise the power, and sold the entire estate, her life estate as well as the fee, to Campbell. The deeds to Campbell conveyed to him the estate in fee, and effectually cut off and extinguished the estate in remainder. So that whenever she saw fit to and did exercise the power given to her by the will, whether before or after the tax judgment sale, it extinguished the estate in remainder whether held by the children of Nathan T. Thurber, or by the grantees in the tax deed. 24 Am. & Eng. Ency. Law (2 Ed.), 449; Grace v. Perry, 197 Mo. 562; St. Louis L. & B. Ass'n v. Fuller, 182 Mo. 104; Garland v. Smith, 164 Mo. 15; Evans v. Folk, 135 Mo. 403; Greffet v. Williams, 114 Mo. 120; Lewis v. Pittman, 101 Mo. 291; Harbison v. James, 90 Mo. 425; Russell v. Eubanks, 84 Mo. 86; Reinders v. Cappleman, 68 Mo. 490; Rube v. Barnett, 12 Mo. 6. (3) The sale and deed made in pursuance of the tax judgment did not, and could not, give to the purchaser any further or greater interest than the children of Nathan T. Thurber had in and to the land. The purchaser, even if the sale had been valid, stepped into the shoes of the defendants and took just what interest they had in the land, which was an estate in remainder, which was liable to be defeated if the holder of the life estate saw fit to exercise the power of sale given to her by the terms of the will. Watt v. Donnell, 80 Mo. 197; Powell v. Grantstreet, 95 Mo. 15; Allen v. Ray, 96 Mo. 415; Machine Co. v. Bowers, 200 Mo. 230. (4) The judgment of the court disregarded the will. There was no evidence to sustain the finding of the court, which must have been that Nathan T. Thurber died intestate. This will, when probated, passed the title to the devisees from the date of the death of Thurber. Rodeny v. Landon, 104 Mo. 646; Drake v. Curtis, 8 Mo. 646; Broadstreet v. Kinsola, 76 Mo. 66; Haile v. Hill, 13 Mo. 618; Bright v. White, 8 Mo. 426. And this is so whether the will was recorded in the State or not.

Wammack & Welborn for respondents.

(1) The taxes for which this land was sold became delinquent during the lifetime of Nathan T. Thurber, the common source of title. It is true he left a will, but that will was not recorded in Stoddard county, until six years after this tax judgment had been obtained. The officers of the county, charged with the enforcement of this tax lien, cannot be held to have any knowledge of this will in the absence of it being recorded in Stoddard county. They had no notice that there was a will, and therefore sued the widow and the heirs of Nathan T. Thurber. R. S. 1909, secs. 567, 568. Before a foreign will can be admitted in evidence or become a muniment of title, a certified copy of said will and the probate thereof, must be recorded in this State in accordance with the law governing domestic wills. Stevens v. Oliver, 200 Mo. 513; Keith v. Keith, 97 Mo. 228; Vansykel v. Bean, 110 Mo. 593; Fenderson v. Tie & Timber Co., 104 Mo.App. 290; Graves v. Ewart, 99 Mo. 17. (2) Where special directions have been given to the lower court by the appellate court upon remanding a cause, it is out of the power of the lower court to open the cause for a new trial. Allen v. Chouteau, 74 Mo. 56; Bridge Co. v. Stone, 194 Mo. 175; Spratt v. Early, 199 Mo. 491; Smith v. Kiene, 231 Mo. 215. (3) When the tax proceeding was brought, and the land sold to satisfy the judgment, so far as the land records of Stoddard county show, Nathan T. Thurber had died intestate, the title to the property then undoubtedly rested in Carrie E. Thurber as the widow and her three daughters as tenants in common. The officer who brought the tax suit, and the purchaser at the tax sale, cannot be charged with constructive notice of a will which had only been recorded in Michigan. Then whatever title these various parties had to the land under the law in 1897 passed by the tax suit, if they were properly brought before the trial court. Carrie E. Thurber and Katie A. Viger were properly brought before the court, and their interests passed by the tax deed; the other parties were not before the court, according to the opinion of the Supreme Court, and their interests did not pass. Now then, what interest did pass? Minus the will, Carrie E. Thurber had the widow's dower, and Katie A. Viger an undivided one-third interest in fee, and that is what the trial court has found the defendants entitled to in this case. The revenue laws require the collector to sue the owner of land for the enforcement of the tax lien, and the courts have uniformly held that the purpose of this statute is satisfied by a suit against the apparent record owner. Where a non-resident land owner dies and no will is recorded in this State, then presumptively his heirs, according to the laws of this State, are the record owners of his property lying within this State, and they are the parties to be sued for the enforcement of the State's lien for taxes.

FARIS, J. Walker, P. J., concurs; Brown, J., not sitting.

OPINION

FARIS, J.

This is an action to determine interest under the provisions of section 650, Revised Statutes 1899 (now section 2535, Revised Statutes 1909), in the following described land situated in Stoddard county, Missouri, to-wit: The northeast quarter, the east half of the southeast quarter, the east half of the northwest quarter, and the east half of the southwest quarter of the southeast quarter, of section 4, in township 23, range 12 east.

This is the second appeal to this court in this case. A full report of all the facts, so far as it is necessary to consider them here, will be found in 220 Mo. 117, to which reference for such facts as are not herein set forth may be made.

In the former appeal the judgment below was for plaintiff, finding him to be the owner in fee of the whole of the land embraced in that action and described above herein. Upon a hearing had in Division Two of this court the judgment of the court nisi was reversed with directions, in the following language:

"The judgment of the circuit court, so far as it affects the title to the interests acquired by the purchaser of the interests and estates of Carrie E. Thurber and Katie A. Viger, is reversed, with directions to the circuit court to enter up a judgment for defendants vesting in them the title to the interests and shares of Carrie E. Thurber and Katie A. Viger in said lands acquired by them by virtue of said sheriff's deed under said tax judgment, and to enter a further decree in favor of plaintiff for whatever interest he may have acquired by deeds of conveyance in the shares or interests of Mary A. Lemen and ...