McAnaw v. Clark

• Decision Date: 19 February 1902
• Parties: McANAW v. CLARK.<SMALL><SUP>†</SUP></SMALL>
• Court: Missouri Supreme Court

67 S.W. 249

167 Mo. 443

McANAW v. CLARK.^†

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

EJECTMENT — SECOND TRIAL — TITLE TO REAL ESTATE.

1. Where the only difference between a former action in ejectment determined adversely to plaintiff and a subsequent action between the same parties is the evidence of one witness to a certain fact, which is clearly disproven, the judgment, which is the same as in the former action, will be affirmed.

2. The guardian of an insane person, whose ward conveyed certain real estate before he was adjudged insane, cannot recover the property in ejectment without the deed being first set aside in equity, as the right of possession is the only question to be determined in ejectment, and will be determined only on the record title.

Appeal from circuit court, Clinton county; A. D. Burns, Judge.

Ejectment by John J. McAnaw against Margaret A. Clark. From a judgment in favor of the defendant, plaintiff appeals. Affirmed.

F. J. Porter and H. T. Herndon, for appellant. Thos. E. Turney and James E. Goodrich, for respondent.

MARSHALL, J.

This is an action to recover possession of lots 10 and 12 in city block No. 57, in Cameron, Clinton county, Mo. It is a second suit in ejectment for the same land, between the same parties, based upon precisely the same title and upon the same evidence. The former suit resulted in the same rulings of the trial court, followed by the nonsuit of the plaintiff and his appeal to this court, where the judgment below was affirmed, in an elaborate and exhaustive opinion by Burgess, J. McAnaw v. Tiffin (Mrs. Clark being the only real party to that suit, as she is the only party to this), 143 Mo. 667, 45 S. W. 656. The title, the facts and the testimony are fully set out in the opinion in that case, and they are the same as are presented by this record, and hence need not be restated here. The only difference even intimated by the plaintiff between the testimony then and now adduced is that the guardian testified in this case that he notified Samuel Matthis, Jr., and his wife, Ada L. Matthis, to vacate the rooms they occupied in the hotel on the premises in controversy, and that they did so; but the guardian is manifestly in error in this regard, for the lessee of the hotel testified that they did not vacate at any time during the existence of the guardianship, nor until they conveyed the property to Tiffin, on the 6th of January, 1892. The guardianship terminated with the death of ...