Keith v. Johnson

• Decision Date: 14 March 1892
• Citation: 18 S.W. 1142,109 Mo. 130
• Parties: KEITH et al. v. JOHNSON.
• Court: Missouri Supreme Court

18 S.W. 1142

109 Mo. 130

KEITH et al. v. JOHNSON.

Supreme Court of Missouri, Division No. 1.

March 14, 1892.

APPEAL — MANDATE TO COURT BELOW — FOLLOWING DIRECTIONS.

Testator, a resident of Kentucky, devised land in Missouri to his son, but the will was never recorded in the latter state. The son mortgaged the land to defendant, and, in an action for partition, the lower court held that the mortgage was a valid lien, and, no appeal-bond having been given, the land was sold, and the proceeds applied on defendant's debt. On appeal the supreme court held that, as to defendant, the decedent died intestate, and the son was only entitled to his share of the land as one of the heirs at law. The case was remanded, and the lower court found that the interest of the son would have been one-seventh, and awarded such an interest in the proceeds of the sale to defendant; but, finding that he had already received from the sale more than such proportionate part, awarded restitution of the amount in excess to the other heirs. Held, that the judgment of the lower court was in accordance with the decision of the supreme court.

Appeal from circuit court, Lafayette county; JAMES E. RYLAND, Special Judge.

Suit in partition by Perrie Keith and others against John Johnson. Decree for complainants. Defendant appeals. Affirmed.

Graves & Aull, for appellant. Wallace & Chiles, for respondents.

BRACE, J.

This case is now before us for the third time. It is a suit for partition. The facts are fully stated, and the questions of law determined, in the two opinions heretofore rendered herein, (80 Mo. 125; 97 Mo. 223, 10 S. W. Rep. 597,) and neither need now be restated or reviewed. When the case was last here we held that, "so far as defendant, Johnson, is concerned, James W. Keith is to be deemed to have died intestate, and the deed of trust (appellant's) will hold whatever interest James M. Keith would have as an heir at law of James W. Keith; what that interest is does not appear." 97 Mo. 230, 10 S. W. Rep. 597. When the case was remanded there was but one thing for the circuit court to do, so far as the interest of appellant was concerned, in the premises, and that was to ascertain, as matter of fact, what the interest of the said James M. Keith would have been, as heir at law aforesaid, in that part of the premises sold in the proceeding that was covered by appellant's mortgage, and award him such proportionate part of the proceeds of such sale. This the court did;...