Matthews v. Austin

• Decision Date: 30 July 1927
• Docket Number: 26833
• Parties: Charles D. Matthews, Jr., v. Charles E. Austin, Successor in Interest of John W. Greer, Appellant
• Court: Missouri Supreme Court

297 S.W. 366

317 Mo. 1021

Charles D. Matthews, Jr., v. Charles E. Austin, Successor in Interest of John W. Greer, Appellant

No. 26833

Supreme Court of Missouri

July 30, 1927

Appeal from Mississippi Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

John T. McKay for appellant.

(1) This court on the former appeal did not decide any issue in this cause except that plaintiff had a right to apply to the county court for a patent to the land in controversy; and this is more clearly shown by what the court said in the closing paragraph of its opinion, which is: "Though the conclusion reached in the preceding paragraph be rejected yet the decree is wrong. At the least, appellant had the equitable title and is entitled to a patent from the county." Mathews v. Greer, 206 S.W. 53. (2) The plaintiff not having made application for and procured a patent for the land is in the same condition with reference to this appeal as he was before. He is without any title whatever. Wheeler v. Reynolds Land Co., 193 Mo. 291; Bayless v. Gibbs, 251 Mo. 492; Senter v. Lumber Co., 255 Mo. 602; Rutledge v. Presbyterian Church, 278 Mo. 323; Stillman v. Clardy, 256 Mo. 323. (3) A patent issued in the name of a deceased person is void and passes no title. Collins v. Brannin, 1 Mo. 540; Thomas v. Wyatt, 25 Mo. 24; Norfleet v Russell, 64 Mo. 178; Galloway v. Finley, 12 Pet. 297; McGrew v. Byrd, 255 F. 759, 257 F. 66. (4) The cause having been reversed and remanded generally, the defendant was entitled to the formalities of a trial and to have the issues submitted to a jury or waiving a jury to have the issues submitted to the court, and the court's judgment on the motion is reversible error. Secs. 1397, 1398, R. S. 1919; Lee v. Conran, 213 Mo. 404; Houser v. Murray, 256 Mo. 84; Toler v. Edwards, 249 Mo. 159. The issues in this cause are not res adjudicata, because where a judgment is reversed and the cause remanded the cause is remanded for a new trial. Howell v. Sherwood, 242 Mo. 513.

J. M. Haw, Bailey & Bailey and Oliver & Oliver for respondent.

(1) Every point made by appellant in his brief in this case, as to the validity or invalidity of the several conveyances and instruments offered in evidence, was made on the former hearing of this case. The ruling then is the law of this case. The trial court followed that ruling. There is not a single syllable of new evidence offered in this record from that offered on the former trial. Plaintiff's title is adjudicated. Winner v. Hoyt, 32 N.W. 128, 130; Matthews v. Greer, 260 S.W. 53. (2) Appellant cannot be heard to complain here of the procedure followed in the trial court. He made no objection. He recognizes that the proceedings had before the trial court were, for every reasonable purpose and intent, "a trial." Where a judgment is reversed and cause remanded and the case goes back, it must be proceeded with in accordance with the ruling of this court as expressed in the opinion. This was done, for at the conclusion of the evidence, appellant prayed the court for instructions, just as is ordinarily done at the close of the evidence. (3) No objection having been made in the court below to the procedure followed, none can be heard here. He cannot try his case on one theory in the lower court and on another here. Sec. 1512, R. S. 1919. (4) It was the duty of the trial court to follow the rulings of this court in this case. This court held that the patent to William Pruett, under which plaintiff holds, was, under the Act of 1857, sufficient to pass the title. Matthews v. Greer, 260 S.W. 53. (5) This court will not reverse the judgment of any trial court, unless this court believes that error was committed against the appellant materially affecting the merits of appellant's case. Sec. 1513, R. S. 1919. (6) This action can be maintained without regard to the nature of the estate or interest, whether legal or equitable, held by plaintiff. Sec. 1970, R. S. 1919; Utter v. Sedman, 170 Mo. 284. (7) It is manifest from an examination of this record that this appeal is for vexation and delay. Every question discussed now was discussed on the previous trial. This court's former opinion constitutes and forms the law of this case. That finding was binding on the trial court. We are, therefore, invoking the penalty provided for in the statute for the prosecution of appeals for vexatious delay. Sec. 1515, R. S. 1919.

Atwood, J. All concur, except Gantt, J., not sitting.

OPINION

ATWOOD

This suit was originally instituted in the Circuit Court of Dunklin County, Missouri, by Byrd-Matthews Investment Company against John W. Greer, for the purpose of determining the title under Section 1970, Revised Statutes 1919, to twenty acres of land situated in that county. Charles D. Matthews, Jr., having acquired by deed the title of Byrd-Matthews Investment Company, was substituted as party plaintiff. The first trial below resulted in a judgment for defendant John W. Greer, from which plaintiff appealed. The Supreme Court reversed the judgment and remanded the cause the case being reported in 260 S.W. 53. Thereafter and before retrial Charles E. Austin acquired whatever interest John W. Greer had in the property and he was substituted as party defendant. On retrial judgment went for plaintiff. Defendant appealed therefrom, and the abstract of the record filed here reads, in part, as follows:

"And on the 24th day of October, 1924, said cause coming on for trial on the same petition, answer and replication as before, respondent filed the following motion, caption and signatures omitted:

"'Now on this day this cause coming on to be heard the plaintiff announces ready and the defendant announces ready. Thereupon the plaintiff prays the court for an order to enter judgment herein in accordance with the findings and mandate of the Supreme Court in this case, holding that plaintiff was and is entitled to the relief prayed for in his petition herein; and that the court entered its findings and judgment accordingly.'

"And after offering the testimony taken on the former trial and the mandate of the Supreme Court and after the declarations of law offered by the defendant were refused and given, the court rendered judgment in favor of the plaintiff and against defendant."

At the close of all the evidence defendant offered the following declarations of law:

"1. The court declares as a matter of law that the patent offered in evidence in this cause merely conveys the equitable title, if any, and will not support a finding for the plaintiff in this cause.

"2. The court declares, as a matter of law, that before plaintiff can recover in this action he must apply for and obtain the legal title from Dunklin County, Missouri, the county in which the land in controversy lies.

"3. The court declares the law to be that under the decision of the Supreme Court rendered in this cause and the mandate this day filed in accordance with this decision, the plaintiff only has the equitable title, if any, and the legal title is vested in Dunklin County, Missouri, and that before plaintiff is entitled to recover he must first procure from Dunklin County the legal title and offer the same in evidence.

"4. The court declares the law to be that this action pending between plaintiff and defendant is an action at law to determine title, and even though the court should find from all the evidence adduced and from the former opinion of the Supreme Court rendered in said cause, that the plaintiff has equitable title in the land in controversy, yet unless it further finds that plaintiff has obtained from Dunklin County, Missouri, the county in which the land in controversy lies, the legal title, he cannot recover in this action."

The trial court refused instructions numbered 1, 2 and 3, gave instruction numbered 4, and entered the following judgment and decree for plaintiff:

"Now on this 24th day of October, 1924, this cause coming on to be heard, the plaintiff announces ready for trial and the defendant announces ready for trial.

"Thereupon said cause was taken up on plaintiff's motion for judgment, and by consent and agreement of both parties this cause is submitted to the court on the testimony heretofore offered and on the opinion and mandate of the Supreme Court in this case, and the court having seen and heard said testimony, and having fully considered the same, and the findings and directions of the Supreme Court, doth sustain said motion.

"Thereupon the court finds from the testimony that the plaintiff is, and was at the time of the institution of this suit, the owner in fee of the south half of the northwest quarter of the southwest quarter of section thirty-two, township seventeen north, of range eight east, in Dunklin County, Missouri. The court further finds that the defendant, Charles E. Austin through his predecessor in this suit, John W. Greer, claims some title in and to said land, bottomed upon a quitclaim deed dated November 22, 1916, and recorded in book 67, at page 121, of the deed records of Dunklin County, Missouri, from John T. McKay and wife, purporting to convey their interest in said land to John W. Greer, the original defendant herein, and that said claim, so asserted, was and is adverse and prejudicial to the plaintiff and should be and is set aside and for naught held as a cloud upon plaintiff's title. The court further finds that plaintiff dereigns his title through a regular line of conveyances to a patent issued by Dunklin County, Missouri, to William Pruett, on the 20th day of August, 1867.

"It is, therefore, considered, ordered, adjudged and decreed by the court that plaintiff be and he is adjudged and decreed the owner in fee of the south half of the northwest quarter of the southwest quarter of section...