Miller v. Schnebly
| Decision Date | 24 February 1891 |
| Citation | 15 S.W. 435,103 Mo. 368 |
| Parties | Miller, Appellant, v. Schnebly et al |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. -- Hon. B. E. Turner, Judge.
Affirmed.
W. L Berkheimer for appellant.
(1) The husband of Mrs. Miller, the plaintiff's grantor, died during the year 1869, while the homestead law of 1865 was in force. Such being the case, she took a fee simple in $ 1,500 worth of real estate not exceeding one hundred and sixty acres. Scouten v. Wood, 57 Mo. 380. (2) The law in force at the time of the death of the husband determines the rights of the widow in the homestead. Davidson v Davis, 86 Mo. 440. (3) The widow is not estopped by the proceedings in the partition suit, as it was ex parte, and from the evidence in this case, she was wholly ignorant of her rights. Seek v. Haines, 68 Mo. 13; Gragg v. Gragg, 65 Mo. 343. (4) There can be no estoppel where a party is not advised of his rights. Burk v. Adams, 80 Mo. 504; Frederick v. Railroad, 82 Mo. 402; Hull v. Kavanaugh, 6 Mo.App. 143. (5) The court can very easily see, from this evidence, that this defendant and James Miller were the moving parties all through, in order to acquire the title to all of the land, and their action was a fraud upon the widow, who was an old, feeble woman, and her conduct, induced by the fraud of the two Millers, cannot be set up in this suit by them, or either of them, as an estoppel against her, or those claiming under her. Douglass v. Cissna, 17 Mo.App. 44. (6) In an action to divest the legal title, and hold one in whom it is vested as a trustee (as in this case), the evidence must be reasonably clear and satisfactory. Tedford v. Trimble, 87 Mo. 226; Stephens v. Adams, 61 Mo. 453; Sutton v. Shipp, 65 Mo. 297; Shaw v. Shaw, 86 Mo. 594. (7) The partition suit is not res judicata. A matter to be such must be determined. Hickerson v. Mexico, 58 Mo. 61; Lightfoot v. Wilhite, 23 Mo.App. 5; Ford v. Hennessey, 70 Mo. 580. In the partition suit in evidence in this case the parties were not adversary. (8) Parties to a judgment are not bound by it in a subsequent controversy between themselves, unless they were adversary. McMahon v. Geiger, 73 Mo. 145, and cases cited.
Matlock & Hiller for respondents.
(1) The judgment of the probate court setting off the homestead is void. It can be set off only while the administration is pending. R. S. 1879, secs. 2693, 2694; State v. Stephenson, 12 Mo. 178; Miller v. Major, 67 Mo. 247; Goebel v. Foster, 8 Mo.App. 443. (2) The final judgment of partition was conclusive. Hart v. Steedman, 98 Mo. 452; Bobb v. Graham, 89 Mo. 200; Halladay v. Langford, 87 Mo. 577; Forder v. Davis, 38 Mo. 107; Pochman v. Meatt, 49 Mo. 345; Robb v. Timmermeister, 15 Mo.App. 249. (3) Alexander Miller and wife are estopped to claim the land in controversy, for they bought with notice of defendants' equities. Notice is actual when the purchaser knows of the existence of the adverse claim, or is conscious of having the means of knowledge although he may not use them. Sensenderfer v. Kemp, 83 Mo. 581; Meir v. Blume, 80 Mo. 179; Muldrow v. Robinson, 58 Mo. 331; Fellows v. Wise, 55 Mo. 413; Major v. Lisle, 51 Mo. 227; Speck v. Riggins, 40 Mo. 405; Leavitt v. Laforce, 71 Mo. 353. Defendant being in possession, and plaintiff, knowing it, is put on inquiry. Martin v. Jones, 72 Mo. 23. (4) The trial court having found all the issues of fact for the defendant, such finding will not be disturbed unless cogent reasons exist for a departure. Taylor v. Cayce, 97 Mo. 243; Davis v. Kline, 96 Mo. 401; Mathias v. O'Neil, 94 Mo. 520; Robertson v. Reed, 38 Mo.App. 32.
This is a most unseemly contest between a son and son-in-law of an old lady, proved to have been eighty-nine years old at the time of the trial in the circuit court, in regard to her interest in the estate of her deceased husband. In 1869, John Miller died seized of the southeast quarter of section 18, township 66, range 7, west, containing one hundred and sixty acres, and also twenty acres in section 23, township 66, range 8, west, and forty acres in section 5 of the same township and range 7, west. He was living on the land in section 18 at the time of his death. He left a widow, Mary J. Miller, and eight children as his heirs. John D. Miller, one of his sons, was appointed administrator of his estate, and in February, 1872, made final settlement thereof, after having given the notice required by law. At the time of the death of John Miller, John B. Miller, having married a daughter of the deceased, was living in the family with him and continued to live on the farm afterwards. In 1871, John B. Miller (one of the defendants in this case) bought the interests of four, and James Miller, a son of decedent, bought the interests of two of the heirs in all the lands above described. Then John B. Miller and his wife (she being an heir) owned jointly five-eighths, and James Miller (being an heir) owned three-eighths of all these lands, subject to whatever estate the widow, Mary J. Miller, had in them.
In that year (1871), these parties, James Miller, John B. Miller and his wife and Mary J. Miller made an ex parte application by petition to the court of common pleas of Clark county, in which county the property was situated, for the partition of these lands, in which petition it was alleged that the widow, Mary J. Miller, had a dower interest of one-third of the lands for her life, that John B. Miller and his wife owned five-eighths, and James Miller three-eighths of the lands, subject to the dower interest of the widow. A decree of partition was entered according to the allegations of this petition and commissioners were appointed to divide the lands, according to the decree. The commissioners qualified, and about the time they were to proceed to make the partition James Miller and John B. Miller, the former then living on the northern portion of the one hundred and sixty-acre tract and the latter living with the widow in the mansion house, met and agreed how the land should be divided; the terms agreed upon were these: James Miller was to take seventy-one acres off the north end of the one hundred and sixty-acre tract, and the twenty acres in section 23, and John B. Miller was to take eighty-nine acres off the south end of the land in section 18 and the forty acres in section 5; the widow's dower was to be carved out of the eighty-nine acres to be set off to John B. in section 18, and to equalize the division according to their interests John B. was to board the widow and pay her $ 25 per year, and James was to pay her $ 15 annually, these payments to continue as long as she lived.
The commissioners met at the mansion house, and James, John B. and the widow were there together, and the arrangement between James and John B., as set out above, was made known to the widow and she assented to it. There is some discrepancy as to what the widow knew about her rights in the land at that time. James says that Caldwell, one of the commissioners, an old friend of the family, and one in whom the widow confided, informed her that she could take a child's part or dower, while John B. says he (Caldwell) informed her that she had a homestead in the lands in fee or dower, but advised her that it was best for her to take a dower interest; for no one could deprive her of that, while she might be induced to sell her fee estate; and she then said she would take the dower interest. Thereupon the commissioners set off to James the seventy-one acres in section 18, and the twenty acres in section 23; to John B. fifty-four acres in the southeast part of the land in section 18 and the forty acres in section 5, and to the widow thirty-five acres in the southwest corner of the land in section 18. The tracts set off to each in section 18 were all described by metes and bounds.
The commissioners made their report which was confirmed and approved by the court. James took possession of the land assigned to him, and afterwards and prior to 1886 sold the seventy-one acres in section 18 to J. C. Wilson. John B. Miller continued to live with the widow in the mansion house and he took care of the old lady until 1886, paying her the $ 25 and James paying her the $ 15 per annum, as per their agreement. John B. made valuable and lasting improvements on the thirty-five acres set off to the widow, amounting to $ 700 or $ 800, under the belief, as he swears, that he was to be the owner of this thirty-five acres at the widow's death. In 1886, John B. concluded to move to Kansas, and, the widow refusing to go there, a son of hers, David Miller, took her, under an agreement with John B. that the latter would pay her board and the $ 25 per annum as formerly. John B. then went to Kansas. The widow remained with her son David only four months and then was taken to Alexander Miller's, another son of hers.
About the time of John B.'s moving to Kansas, the widow applied to the probate court of Clark county to have her homestead in these lands set off to her, and forty acres were set off to her by commissioners appointed by that court. The report of the commissioners was approved in the summer of 1886, and in September, 1886, the widow conveyed this homestead tract by warranty deed to Eliza Miller, the wife of Alexander Miller, for the expressed consideration of $ 100. The record does not show that anyone was made a party to the proceeding in the probate court, in 1886, to set off the homestead, or that anyone interested in the estate was notified of it in any way.
Alexander Miller brought this action in ejectment against defendant Schnebly who was the tenant of John B. Miller; the latter was, on his own motion, made a party defendant, and answered setting up said partition...
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