Kinzey v. Kinzey
| Decision Date | 08 May 1893 |
| Citation | 22 S.W. 497,115 Mo. 496 |
| Parties | Kinzey, Administrator, Appellant, v. Kinzey et al |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court -- Hon. Richard Field, Judge.
Affirmed.
William Aull for appellant.
(1) A party who by means of the confidential relations between the parties by deceit and imposition obtains property of the other will be compelled, in a proper case, by a court of equity, to restore the same to the party injured. Dickerson v. Dickerson, 39 N.W. 429; Huguenin v Beasley, 14 Ves. 290; Taylor v. Taylor, 8 How 183; Blandy v. Kimber, 24 Beav. 148; Goddard v Carlisle, 9 Price, 169; Boney v. Hollingsworth, 23 Ala. 69. (2) A court of equity will scrutinize the matter from its inception. It is not a forfeiture, but a setting aside because of deceit, imposition and failure of consideration. Murphy v. DeFrance, 101 Mo. 151. (3) The defendant, Theodore A., not being an heir of the body of defendant, C. E. Kinzey, by Christian Kinzey begotten, nor capable of being such, is not entitled to any interest in the real estate under the deed read in evidence, and the court should so declare in doing complete justice in the premises and dispose of the whole matter. Reyburn v. Mitchell, 106 Mo. 365; Sneathen v. Sneathen, 104 Mo. 201. (4) The court erred in rejecting evidence offered by appellant and this court may consider such evidence as received in arriving at a conclusion. Keiser v. Gammon, 95 Mo. 232. (5) This court will consider the evidence in the cause regardless of the finding of the circuit court when the preponderance of evidence is against it, and will render such decree as under the evidence ought to be rendered. Rawlins v. Rawlins, 102 Mo. 563; McElroy v. Maxwell, 101 Mo. 294; Morey v. Staley, 54 Mo. 419.
U. G. Phetzing for respondents.
(1) All transfers of property which were actually executed before the divorce decree continue valid and binding. 2 Bishop on Marriage & Divorce, sec. 705; Flood v. Flood, 5 Bush. 167; Orr v. Orr, 8 Bush. 156. A court of equity never lends its aid to enforce a forfeiture. Messersmith v. Messersmith, 22 Mo. 369; Lasar v. Baldridge, 22 Mo.App. 362. (2) The legitimacy of the child, Theodore, cannot be questioned, and all the evidence as to its illegitimacy was incompetent. Abbott's Trial Evidence, p. 88; 1 Taylor on Evidence [8 Eng. Ed.] p. 129; Starkie on Evidence [6 Am. Ed.] p. 136. (3) In an equity case where the trial court has the witnesses personally before it, and there is abundant evidence to sustain its finding of facts, the supreme court will not interfere and reverse such finding, unless it is clear it should have been otherwise. Judy v. Bank, 81 Mo. 404.
OPINION
On the ninth of April, 1874, the plaintiff Christian Kinzey and the defendant Clara E. Kinzey were lawfully married, and thereafter lived together as husband and wife until the month of November in the year 1888, when they separated. Afterwards in August, 1889, at the suit of the said Christian Kinzey, a decree of divorce was granted him by the circuit court of LaFayette county, on the ground of adultery committed by his said wife, during the marital relation, with one John A. Catron.
It appears from the evidence that at the time of the marriage the said Christian Kinzey was a farmer and a widower with a family of seven children by a former wife, "most of them small." That the said Christian and Clara lived happily together on his farm in said county from the time of their marriage until the spring of the year 1884, when he sold his farm and moved to the town of Higginsville in said county. That during all that time the said Clara was a faithful and industrious wife, kind to him and to his children by his first wife. In April, 1884, Kinzey sold his farm for $ 10,000, in payment of the purchase price for which, he took another farm at $ 5,000, and for the remainder received promissory notes bearing eight per cent. interest, secured by deed of trust on the premises sold; two of them, amounting to the sum of $ 2,450, he had made payable to his wife, the said Clara, and delivered them to her; at this time she had three living children by him born of the marriage, one of whom afterwards died in the year 1887, and the other two, Florence E. and Frank M., are made parties defendant in this suit. These children were of tender years, and it would seem the children of the said Christian by his former wife had then been reared and settled in life apart from their father and his wife, except perhaps the youngest son.
About this time Kinzey bought a lot in Higginsville for $ 25 from one P. M. Gaw, and on the twenty-eighth of March, 1884, had the deed therefor executed by the said Gaw and wife convey the same to his wife, the said Clara, in fee-simple, and erected a small frame house thereon, in which he thereafter lived with his family for a time. Afterwards he bought another lot from one Asbury for $ 300, and on the twenty-fifth of April, 1885, had the deed therefor, executed by the said Asbury and wife, convey the same "to the said Clara Elizabeth Kinzey, and unto the heirs of her body begotten by Christian Kinzey, her present husband, forever."
It appears from the evidence that in the year 1884 and part of 1885, Kinzey had in his employ and boarding with him the said John A. Catron; that in the latter part of the month of May 1885, his wife committed adultery with the said Catron at his home in Higginsville during his absence in New Orleans. And there was some evidence tending to prove that she had been guilty of the same act with Catron on another occasion either in the month of January or February preceding; but the weight of the evidence is, that the adulterous intercourse first commenced in May, and there was evidence tending to prove that it was repeated at intervals afterwards. The plaintiff testified that he "first discovered about their intercourse in May, 1886." He says he then found some letters from John Catron in his wife's trunk which "satisfied" him "of the criminal intercourse of his wife with John Catron." Nevertheless, they continued to live together as husband and wife until November, 1888. In December, 1885, Mrs. Kinzey had another child born to her named, Theodore, who the plaintiff alleges is not his child, and who is made a defendant in this suit. About this time Kinzey commenced the erection of a large and commodious brick house on the Asbury lot,...
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