Martin v. Martin

• Decision Date: 31 May 1913
• Citation: 157 S.W. 575
• Parties: MARTIN v. MARTIN et al.
• Court: Missouri Supreme Court

157 S.W. 575

MARTIN v. MARTIN et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. PARTITION (§ 12) — PROPERTY AND ESTATES SUBJECT TO PARTITION.

Equitable interests in land may be partitioned in an appropriate proceeding for that purpose.

2. PARTITION (§ 34) — FORM OF REMEDY.

While a proceeding to partition equitable interests in land is called an equitable one in distinction from the statutory action at law, the practice is regulated by the statutory provisions so far as applicable.

3. TRUSTS (§ 44) — PAROL TRUST — SUFFICIENCY OF EVIDENCE.

Where, in a suit to partition equitable interests in land, it is sought to establish a trust or other equitable title by parol evidence, the proof must be clear and convincing and must leave no reasonable doubt as to the existence of the facts upon which the equity depends.

4. TRUSTS (§§ 17, 18) — PAROL TRUST.

The consideration is the foundation of parol trusts and other equitable titles sought to be established by parol evidence, and, where equity intervenes to remove the inhibition of the statute of frauds, it is usually upon the ground that one who has received the consideration of the transaction is guilty of fraud if he refuses to render the thing for which it was paid.

5. ADOPTION (§ 17) — AGREEMENT TO ADOPT — EVIDENCE OF ADOPTION.

Where it was shown that, during the 43 years between a marriage and the husband's death, the wife's illegitimate son was a member of the family and treated as such, that during the whole period the husband spoke freely of his promise to take the child as his son, declared that he considered him as his son, and made other similar declarations, and stated that he would give him all his property when he died, an alleged promise by him to adopt such child, based upon the meritorious consideration of marriage and his moral obligation to assist his wife in relieving the child of the stigma of illegitimacy, was sufficiently proved, notwithstanding his failure to use the technical word "adopt," and a declaration by him, when asked if he had made any provision for the child, that he did not feel it necessary; this not necessarily being a denial of his obligation to execute an act of adoption, but being consistent with a belief that no further act than his public recognition of the relation was necessary, which was excusable in view of the Supreme Court's apparent approval of the holding of a federal court that under the statute of this state the recognition by a husband of the illegitimate children of his wife is conclusive evidence of their legitimacy.

6. ADOPTION (§ 6) — EQUITY (§ 57) — ACTS CONSTITUTING — FAILURE TO EXECUTE DEEDS OF ADOPTION.

Where a husband in consideration of marriage agreed to adopt his wife's child, equity, under the maxim that equity looks upon that as done which should have been done, would enforce the child's right as if a deed of adoption had been executed if such deed was necessary to accomplish the adoption.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Suit for partition by Frank John Martin against Elizabeth Martin and Kathryna Schenk. From a judgment for plaintiff, defendant Schenk appeals. Affirmed and remanded.

W. V. Draffen and Williams & Williams, all of Boonville, and Jeffries & Corum, of St. Louis, for appellant. John Cosgrove and Daniel W. Cosgrove, both of Boonville, for respondent.

BROWN, C.

This is a suit for partition of land instituted March 25, 1909, by filing the following petition: Frank John Martin, Plaintiff, v. Elizabeth Martin, Defendant. Plaintiff states that John Martin, Jr., died in the county of Cooper, state of Missouri, on or about the 25th day of October, 1908, seised of the north half of the southeast quarter of section twenty-one (21) and the northwest quarter of the southwest quarter of section twenty-two (22), all in township forty-eight (48), range eighteen (18), situated in said county of Cooper and state of Missouri. Plaintiff further states that John Martin, Jr., was the husband of the defendant Elizabeth Martin; that said John Martin, Jr., was married to the defendant in Cooper county, Mo., May 1, 1865; that the plaintiff is the son of the defendant; he was born June 14, 1864; that before the said John Martin, Jr., and defendant were married, said John Martin, Jr., promised and agreed that if the defendant would marry him he would adopt her said child and would make him his heir, and in all manner and respect consider him and keep him as his lawful son, and, if any child or children were born of said marriage, that plaintiff should share with said child or children thereafter to be born the same as if plaintiff were the natural son of John Martin, Jr.; that after the marriage of the said John Martin, Jr., and the defendant, plaintiff's name was changed from John Gillett to Frank John Martin, and the said John Martin, Jr., during his lifetime treated plaintiff as his child, introduced him and spoke to others of him as his son, and in all ways treated him as such; that plaintiff was lead to believe by the said John Martin, Jr., and did believe, that he was a natural son of the said John Martin, Jr., and did not know the contrary until he had grown to manhood; that said John Martin, Jr., called the plaintiff `son' and plaintiff called him `father'; that plaintiff lived with the said John Martin, Jr., in his home until he was over 40 years of age, worked on the farm and helped accumulate and pay for whatever estate the said John Martin, Jr., had at the time of his death; that said John Martin, Jr., had no other child or children and left surviving only the plaintiff and defendant; that no other persons have interest in said land, and plaintiff says that as the adopted child of the said John Martin, Jr., he is entitled to share in said real estate in all respects as if he were the natural son of the said John Martin, Jr., deceased. Plaintiff says that he is entitled to an undivided one-half of said real estate and the defendant is entitled to the other undivided one-half thereof in fee simple; that the debts of the said John Martin, Jr.'s, estate have been paid and no part of said real estate will be required to pay the debts of the said estate. Plaintiff further states that said land can be divided in kind between himself and the defendant. Plaintiff therefore prays that partition be made of said land according to the respective rights of the parties, and that if it be found that partition cannot be made in kind that said land be sold and the proceeds appropriated according to the respective rights of the parties hereto, and for such other and further relief as to the court shall seem meet and just."

Mrs. Schenk was afterward, on her own petition, made a defendant, and filed answer stating that she was the only sister of John Martin, Jr., and his sole heir other than Elizabeth Martin, the original defendant; so that the suit became a contest solely between her and the plaintiff.

The appellant, in the brief, admits that John Martin, Jr., died October 25, 1908, the owner of the land described in the petition, that the defendant Elizabeth Martin is the widow, and the defendant Kathryna Schenk his sister, and that the plaintiff is the illegitimate son of the defendant Elizabeth Martin and was born June 14, 1864, and that his mother was married to John Martin, Jr., on May 1, 1865; so that plaintiff was then about 10½ months old. It is not questioned that the plaintiff lived with his mother and her husband, working on the farm, until he was 42 years old, when he married and settled near them. He was always known by the name of Martin, and Mr. John Martin, Jr., treated him as and called him his son, and the evidence shows that he talked freely with the neighbors about his position in the family. Mr. Mann, one of the old neighbors, said that he had heard him talk about it may be a hundred times — about Frank being his son and that he wanted him to have everything he had; that he married Mrs. Martin with the understanding that he would adopt him and take him as his son. The last talk this witness had with Mr. Martin was only three or four years before the trial. He asked Mr. Martin if he had made any provision for Frank, and he said he did not feel it was necessary, that Frank was his child, and he considered him his son. He said that he had promised the priest that he would treat Frank as his own son.

Mrs. Fisher, Mr. Martin's sister-in-law, who had lived with them eleven or twelve months when Frank was about three years old, said that Mr. Martin called him his own son, and that hardly anybody knew to the contrary; that he often caressed him and showed affection for him. The witness left the neighborhood when Frank was eight or nine years old, staying away about eight years, then returned, and remained in the neighborhood ten or twelve years, during which she visited the Martins, staying perhaps a whole week at a time. Frank was always introduced as Mr. Martin's son — a child of the house. Many times he would take him up and caress him and say he was his own child.

Mr. Gerhardt, another neighbor, said that after Frank was 21 years old he heard that he was not Mr. Martin's own son and asked the latter about it, and was told that he took him as his son, and that whenever he died all that he owned was his. He said, "Whatever we got is Frank's after my death."

Mr. Roe lived in the neighborhood and knew the Martins. He had heard Mr. Martin speak frequently of Frank as his son, and heard him say that, when Frank was a young man growing up, boylike he liked to have some times as well as other boys, and thought he was pretty closely confined at work sometimes. He said that Frank thought he had a pretty hard time, but "it's all for Frank anyhow; Frank gets it all when we are done with it, and I think I will let him do some of the work." Frank remained continually on the farm and worked until he married, and the witness lived on adjoining...