Peniston v. Schlude

• Decision Date: 24 December 1902
• Parties: PENISTON et al. v. SCHLUDE.
• Court: Missouri Supreme Court

71 S.W. 146

171 Mo. 132

PENISTON et al. v. SCHLUDE.

Supreme Court of Missouri, Division No. 1.

December 24, 1902.

DESCENT AND DISTRIBUTION—HEIRS—EVIDENCE—FINDINGS—REVIEW.

1. A finding of the trial court, based on conflicting evidence, will not be reversed on appeal.

2. In an action to recover land, evidence held sufficient to justify a finding that the ancestor of plaintiff's grantors died before, and not after, the date of the death of the owner of the land from whom it was alleged such ancestor acquired title, and therefore that he took no interest in the land as the owner's heir.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by Thomas Peniston and others against Christian Schlude. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Ejectment for lot No. 1 of city block No. 4,037 in the city of St. Louis, fronting 155 feet on the south line of Pattison avenue, by a depth of 170 feet, and bounded west by Macklind avenue. The suit was begun on November 16, 1897. The petition is in the usual form, and lays the ouster as of December 1, 1892. The answer is a general denial. The case was tried by the circuit court, a jury being waived. No instructions were asked by either party, but at the request of the plaintiffs the court made a special finding of facts, which is as follows: "In compliance with a request for a finding of facts in the above-entitled cause, the court finds the facts to be as follows: First. That Frances E. Sublette (daughter of Solomon P. Sublette and Frances S. Sublette, née Hereford) died single and unmarried on May 16, 1861, and that at the time of her death she was seised in fee of the property in controversy, and at said time she left no children or their descendants, nor father, mother, brother, or sister, nor their descendants, her surviving. She left surviving her one maternal grandmother and six maternal uncles and aunts, through whom defendants claim title. Second. The plaintiffs claim title to a portion of one undivided eighth of said property as heirs at law of Pinkney W. Sublette, who was a paternal uncle of the said Frances, daughter of Solomon P. Sublette. Third. The court finds that the said Pinkney W. Sublette died long prior to May 16, 1861, and left no descendants him surviving. It follows, as a matter of law, that plaintiffs are not heirs of said Frances E. Sublette, and have no title to the premises in controversy under the statute of descents and distribution. Judgment for defendants. Horatio D. Wood, Circuit Judge." From the judgment the plaintiffs appealed. The evidence adduced at the trial is very voluminous, and covers over 300 printed pages. In the view herein taken of the case, it is not necessary to state it here. So much as is essential to the determination of the case by this court will be referred to in the course of the opinion.

Thos. B. Crews, Wm. S. Shirk, and G. W. Barnett, for appellants. Bryan & Christie, for respondent.

MARSHALL, J. (after stating the facts).

This is an action at law. No instructions were asked by either party. The case went off on a simple and single question of fact in the lower court, to wit, whether or not Pinkney W. Sublette, under whom the plaintiffs claim, survived his niece, Frances E. Sublette, who died on May 16, 1861, and under whom the defendant claims title. The trial court found as a fact that Pinkney W. Sublette predeceased Frances E. Sublette, and that finding of fact will not be reviewed by this court, if there is any substantial evidence to support it. James v. Association, 148 Mo. 1, 49 S. W. 978. The only question, therefore, open to review is whether there is any substantial evidence to support the finding of facts. The controversy is this: In 1857 Solomon P. Sublette died intestate seised of the property in suit, together with other property, leaving his wife and two children, Frances E., aged about 4 years, and William Hugh, aged about 14 months. The widow survived him for only about one month, and the infant son, William Hugh, died about two months after the widow. Thus Frances became the owner of the property. She died on May 16, 1861, aged about nine years, of course intestate, and without issue. She left surviving as her nearest of kin her maternal grandmother and six uncles and aunts on the maternal side. So far as was then known, she had no living relatives on her paternal side. The grandmother, uncles, and aunts had the property partitioned, and the property in suit is part thereof, and is now owned by the defendant, who acquired it by mesne conveyances. Nothing was heard of any claim to it until November 16, 1897, when this suit was begun, and then for the first time it was asserted that Solomon P. Sublette had a brother named Pinkney W. Sublette, who had lived in the far West, among the Indians, nearly all his life, and that he was alive when Frances died in 1861, and consequently was entitled, as her uncle on the paternal sile, to share in her estate with the grandmother, uncles, and aunts on the maternal side, and in this way was entitled to a one-eighth interest in the property; that Pinkney died in 1865, at Fontenelle, Wyo., and that the plaintiffs are the grantees of the next of kin of said Pinkney. On the other hand, the defendant claims that Solomon had a brother Pinkney, but that he predeceased Frances, and hence was not one of her heirs, and that the Pinkney W. Sublette who died in Wyoming in 1865 was not the brother of Solomon, but some one else of the same name.

At the trial the plaintiffs undertook primarily to prove that Pinkney was alive in 1861. when Frances died. In support of their claim they adduced the following testimony: John R. Clopton, of Sedalia, testified that he went west in 1864, and at a crossing of the Yellowstone river he met a white man with a band of Indians, whom his guide called Pinkney Sublette, and others called Bill Sublette; that they were together five or six hours; that he had never known him before, and never met him afterwards. James S. McKinney, formerly of Callaway county, testified that he went west in 1863, and had spent much of his time there since; that in 1865 he was working for a Mr. Brown, who lived on Green river, and owned a ferry between Fontenelle and La Barge creeks; that he met there a man who said his name was Pinkney Sublette, and who further said he was a brother of William, Solomon, and Andrew Sublette; that the man was sick; that he died about a mile and a half above the mouth of the Fontenelle; that he did not attend the funeral, but saw the grave afterwards. (The plaintiffs showed that William...