Overshiner v. Britton

• Decision Date: 18 June 1902
• Parties: OVERSHINER et al., Appellants, v. BRITTON et al
• Court: Missouri Supreme Court

69 S.W. 17

169 Mo. 341

OVERSHINER et al., Appellants, v. BRITTON et al

Supreme Court of Missouri, First Division

June 18, 1902

Appeal from St. Clair Circuit Court. -- Hon. W. W. Graves, Judge.

Affirmed.

Rechow & Pufahl for appellants.

(1) This case in all its essential features was before this court in the case of Wheelock v. Overshiner, 110 Mo. 100 except that upon all the points upon which that case was decided adverse to defendants' contention, the facts in the case are much stronger. This court having once passed upon all the questions involved in this record, will not review the same. Bank v. Taylor, 62 Mo. 338; Chouteau v. Gibson, 76 Mo. 38; Gaines v Fender, 82 Mo. 497; Forester v. Railroad, 26 Mo.App. 123; Bevis v. Railroad, 30 Mo.App. 564; McKinney v. Harrell, 30 Mo.App. 338; Wilson v Beckwith, 140 Mo. 359; Chapman v. Railroad, 146 Mo. 481. (2) Plaintiffs' grantors had acquired a fee simple by limitation as to all the lands in controversy and the judgment should have been for plaintiffs as to all the land. Wheelock v. Overshiner, supra; Gray v. Yates, 67 Mo. 601. (3) A married woman can make a valid deed when abandoned by her husband, who abides in another State. Phelps v. Walther, 78 Mo. 322; Rose v. Bate, 12 Mo. 30; Gallagher v. Delargy, 57 Mo. 29; Musick v. Dodson, 76 Mo. 628; Fairchild v. Chriswell, 109 Mo. 39. (4) A married woman may sue and be sued when her husband is out of the State or has abandoned her. Phelps v. Walther, supra; Wood on Limitations, p. 479, sec. 240; Tyler on Ejectment, pp. 151, 934; Gallagher v. Delargy, 57 Mo. 30; Musick v. Dodson, 76 Mo. 624; Tyler on Infancy and Coverture, p. 753; Dicey on Parties to Actions, marg. p. 172. (5) The deed of Mrs. Britton to Richards, under the circumstances, clearly conveyed an equity and she will not be permitted to hold both the money and the land. Shroyer v. Nickell, 55 Mo. 269.

J. H. Childers and Adiel Sherwood for respondents.

(1) This case comes to this court "in short form," and under section 813, Revised Statutes 1899. (2) Unquestionably the deed of a married woman in which her husband does not join, and where she does not possess an equitable separate estate, does not convey anything. Flesh v. Lindsey, 115 Mo. 13; Dyer v. Wittler, 89 Mo. 81; Meriwether v. Howe, 48 Mo.App. 148; Arnold v. Willis, 128 Mo. 145; Barnes v. Bullock, 129 Mo. 119. (3) Assuming that the finding of facts is before the court, the trial court does not therein find sufficient to presume the death of Britton. Flood v. Growney, 126 Mo. 264. (4) The court might well have found the deed from Mrs. Britton to Merideth Richards void upon the ground of fraud, under the facts alleged in her answer. (5) The judgment of the trial court was for the right party and ought to be affirmed. (6) The trial court does not find that Britton was a non-resident of the State of Missouri. (7) At the death of Young M. Pitts his widow, now Mrs. Britton, took a common-law title to the homestead, subject to the possessory right of the children; and when she intermarried with Britton, her interest could not be conveyed without the joint deed of the husband and wife. (8) The issues in the case of Wheelock v. Overshiner, 110 Mo. 100, are not res judicata in this case, for clearly the parties were different so far as this record shows, and the issues unquestionably were different, because, assuming that there is anything before the appellate court for consideration, the finding of facts shows that there was no equitable defense set up in the case of Britton v. Wheelock, and therefore no res judicata. The principle of law is clearly established that there is no bar unless the issues are the same and the parties the same. State ex rel. v. St. Louis, 145 Mo. 567.

OPINION

MARSHALL, J.

The petition is in two counts. The first count is a bill in equity for a lien for $ 468, with interest from July 7, 1877, on the southeast quarter of the southeast quarter of section one, in township thirty-five, range twenty-two, in Hickory county, for the purchase price paid by Meredith Richards to Mrs. Elenor Britton, on July 7, 1877, for said land, and asking that the land be sold to satisfy the lien so established by the judgment asked, or that the deed from Mrs. Elenor Britton to Meredith Richards be declared valid and binding and that its effect was to pass the legal title to Richards, and that the interest of the defendant James Pitts, be set aside and he be forever barred from asserting any title to the land, and for general relief. And the second count is in the ordinary form of a petition in ejectment for the same premises, the ouster being laid as of May 2, 1893.

The answer of Elenor Britton is a general denial, a plea of a homestead right to the premises, and a special plea that Meredith Richards procured from her a deed to the premises by false representations, and that she was a married woman when she made the deed and that her husband did not join therein, and therefore the deed is void; and further that long before the commencement of this suit she sold her interest in the land to the defendant Pitts, and she asks an injunction against the plaintiffs from further actions against her.

The case is here upon a certified copy of the judgment, as provided for by section 813, Revised Statutes 1899. The abstract of the record contains only the pleadings, the special findings of fact made by the circuit court at the request of the parties, the judgment, the motion for a new trial, and the appeal. The evidence adduced at the trial is not preserved, so that the finding of facts must be taken to be the facts in the case.

The facts found by the court cover all the facts stated in the equity count of the petition, and, therefore, it is only necessary to set out that finding here to afford a correct understanding of that count of the petition. The finding of facts is as follows:

"SPECIAL FINDING OF FACTS.

"In the case of Laura A. Allen et al. v. Elenor Britton et al and also in the case of Laura A. Allen et al. v. Benjamin Olinger, at request of plaintiff, the court makes the following finding of facts.

"That the common source of title is Young M. Pitts; that Young M Pitts died intestate in Hickory county, Missouri, in May or June, 1871; that he left surviving him a widow, defendant Elenor Pitts and ten children -- four adults and six minors; that at the time of his death, he, with his wife and minor children, resided upon and occupied the southeast quarter of section 1, township 35, range 22, less fourteen acres off the east side, as his homestead; that at the time of his death the same did not exceed in value the sum of fifteen hundred dollars; that there was a forty-acre tract in Polk county, adjoining or cornering with this tract in Hickory, but just how it was used during the life of Young M. Pitts does not satisfactorily appear. That in 1872, Elenor Pitts, now Elenor Britton, commenced suit in the circuit court of Hickory county for the assignment of dower and the southwest quarter of the southeast quarter of section 1, township 35, range 22, was set off to her as her dower. There is some testimony that all, or a part of, or some interest in, this forty acres in Polk county was set off to her at the same time as part of her dower, but the evidence is not such as to justify such a finding. Whether this dower was set off under the proceedings in court or otherwise, is not exactly clear, but in my judgment is clear enough to find that it was set off under such proceeding; that the widow at once had the southwest quarter of the southeast quarter of section 1, above mentioned, separated by fence from the remainder of the southeast quarter of said section, having with her the minor children. That, at this time, and while Mrs. Pitts was single, the adult heirs, for themselves, and the minors, by their guardian, W. A. Pitts, took the exclusive, open and notorious possession of the other three forties under a claim of ownership and with the knowledge and apparent consent of the widow, but the said widow was at the time ignorant of her homestead right. That, after the assignment of dower, and on August 12, 1873, Elenor Pitts, the widow, married one Nathan Britton; that Nathan Britton lived with her for a year or more, but less than two years, when he left her and lived in Arkansas for a time, whether permanently as his home or temporarily, does not appear. Britton then visited his brother in Missouri for a few hours and left for Colorado, where he was last heard from, November 23, 1877, at both of which times he was in delicate health. Whether he left Missouri for Colorado to change his domicile and make Colorado his home and his residence, does not appear from the testimony. The evidence discloses that the last permanent residence of Britton was in Missouri, and does not disclose the exact character of his residence out of this State. That, soon after the assignment of dower, the heirs commenced an ex parte action for partition, to which action Mrs. Britton was not a party. In this action all the lands were ordered sold at the November term, 1874, of the Hickory Circuit Court, and were sold at the May term, 1875, at which sale Meredith Richards became the purchaser and received a deed therefor, and immediately took possession of all, except the southwest forty of the 146 acres, being the three fractional forties held by the heirs; that Richards held the open, notorious, exclusive and adverse possession of the three forties until July 7, 1877, when he obtained a deed from Elenor Britton, warranty in form, conveying her dower interest in the forty set off to her as dower, for which he paid her the sum of $ 480; that after the making of this deed Richards took the possession of this forty and continued in the...