Perdue v. Perdue

• Decision Date: 30 May 1904
• Citation: 81 S.W. 633,107 Mo.App. 500
• Parties: MARGARET PERDUE, Administratrix, Respondent, v. MARK PERDUE, JR., Appellant
• Court: Kansas Court of Appeals

81 S.W. 633

107 Mo.App. 500

MARGARET PERDUE, Administratrix, Respondent, v. MARK PERDUE, JR., Appellant

Court of Appeals of Missouri, Kansas City

May 30, 1904

Appeal from Jackson Circuit Court.--Hon. A. F. Evans, Judge.

Judgment affirmed.

J Allen Prewitt for appellant.

(1) Under the statement made in the final settlement, and the allegation in the objections thereto, there was only one point for the court to decide in the case, to-wit: Did the judgment in partition adjudicate this appellant's right to his share of the surplus in this case? A judgment is a conclusion upon matters submitted to the court by the pleadings. Orvis v. Elliott, 15 Mo.App. 96; Lumber Co. v. Nickey, 89 Mo.App. 288; Barkoefer v. Barkoefer, 93 Mo.App. 373. Consent will not confer jurisdiction over subject-matter. Davison v. Hough, 165 Mo. 573. (2) A decree can not be based on facts or affect a subject-matter not pleaded. Needles v. Ford, 167 Mo. 496; Newham v. Kenton, 79 Mo. 382; Maddock v. Lance, 94 Mo. 283; Muenks v. Bunch, 90 Mo 500; Spurlock v. Railroad, 76 Mo. 67; State ex rel. v. Branch, 134 Mo. 605; Young v. Byrd, 124 Mo. 590; White v. Rush, 58 Mo. 105; Clements v Murphy, 40 Mo. 121; State ex rel. v. James, 82 Mo. 510; Ridgly v. Stillwell, 27 Mo. 128; Hickerson v. Mexico, 58 Mo. 65; Offutt v. John, 8 Mo. 125; Bank v. Doran, 109 Mo. 52; McNair v. Biddle, 8 Mo. 267; Mead v. Knox, 12 Mo. 287; Schneider v. Patton, 175 Mo. 684; In re Tyler, 40 Mo.App. 386; Mason v. Summers, 24 Mo.App. 174; Owens v. Link, 48 Mo.App. 538; Dawson v. Quillen, 61 Mo.App. 672; Brown v. Weldon, 34 Mo.App. 378; 8 Ency. P. and P., 933, 941; Freeman on Judgments, art. 257, 271 and 272; McFadden v. Ross, 108 Ind. 576; 2 Ency. P. and P., 868 and 869; Fahey v. Mchg. Co., 44 Am. St. 554. (3) Parol evidence is only admissible in explanation of a judgment where on the pleadings, it is susceptible of more than one construction. Fehey v. Mch. Co., 44 Am. St. 562; St. Joseph v. Railroad, 116 Mo. 645; Spradling v. Conway, 51 Mo. 51. A court speaks only by its record which can not be disputed in a collateral proceeding. Davison v. Hough, 165 Mo. 574; 11 Ency. P. and P., 868-869; 8 Ency. P. and P., 944-945; Reed v. Bott, 100 Mo. 62; Bank v. Doran, 109 Mo. 52; Hickerson v. Mexico, 58 Mo. 65; Schneider v. Patton, 175 Mo. 684; Milner v. Shepley, 94 Mo. 106; McNair v. Biddle, 8 Mo. 267; West v. Moser, 49 Mo.App. 207. (4) Mark Perdue, Jr., is not estopped by the judgment in partition, or any agreement therein, from taking his share of this surplus. Estoppels of record can not be maintained by argument or inference; they must be certain.

John W. Clements for respondent.

(1) Where the merits of a matter in dispute are not passed on, the judgment therein will be no bar to another action; and where the record does not positively show what was passed on, parol evidence may be resorted to. Spradling v. Conway, 51 Mo. 51; Wright v. Salisbury, 46 Mo. 26; Hickerson v. Mexico, 58 Mo. 61. (2) Appellant claims that his attorney had no authority to represent him in the partition suit in any matters except those mentioned in the petition and answers of co-defendants, to-wit, the real estate and the advancements; and that for this reason the appellant is not bound by said decree, even if it does attempt to adjudicate his interest in such other personal estate. If this position is correct, and appellant is not bound by said decree, then it necessarily follows that we are not bound by it. "If it is not binding on both, it binds neither." Bell v. Hoadgland, 15 Mo. 360. And if it is not binding on either, then respondent had a right to show by parol evidence, the advancements to appellant in bar of his claim to this surplus in the hands of administratrix. (3) "The scope of the estoppel created by the first judgment can not be extended beyond the points and issues necessarily determined by it." St. Joseph v. Railway, 116 Mo. 646; 2 Black on Judgments, sec. 574. (4) "The record of a judgment in a former suit between the same parties to constitute an estoppel must show that the same subject-matter had been passed upon and adjudicated in that suit." Clemens v. Murphy, 40 Mo. 122.

OPINION

ELLISON, J.

This case is an appeal from the order of distribution at final settlement of the administratrix. The judgment was for her.

It appears that Mark Perdue died leaving surviving him, as his widow, the administratrix herein and eleven children, among whom is this appellant, Mark Perdue, Jr. The estate consisted of lands and personalty. The deceased had, from time to time, made advancements to several of his children of $ 1,100 each, including this appellant, and the latter had borrowed money from deceased at different times, for which he gave his notes with interest. He had also agreed with deceased to care for and protect an afflicted sister, in consideration of which the deceased allowed him the use, without interest, of $ 1,025. Appellant after a time surrendered back the charge and care of his sister and executed a note to deceased for the $ 1,025.

Afterwards, the appellant cast up what he owed his father with interest and added thereto the $ 1,100 advanced to him, making a total of $ 4,289.23. The deceased surrendered to appellant the notes for borrowed money and appellant executed to him an instrument in the form of, and what is termed, a deed. The instrument is an awkward and singular paper, whereby the appellant acknowledged the receipt of the sum of $ 4,289.23. It contains the following:

"Witnesseth, that the said parties of the first part, in consideration of the sum of ten dollars and other valuable consideration to us paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part his heirs and assigns the following described lots, tracts or parcels of land lying, being and situate in the county of Jackson and the State of Missouri, to-wit:

"All my interest in all the lands in Jackson county, Missouri, or in any other county in said State of Missouri and also all my interest be the same real, personal or mixed and to or in anywise pertaining to the estate of Mark Purdue, Sr. The object and intent of this deed is to convey to the heirs other than myself all my interest in said estate, the consideration being the sum of ten dollars and the further consideration of advancements amounting to the sum of $ 4,289.23; by the execution of this indenture we acknowledge ourselves owing at the time of the settlement of said estate the sum of forty-two hundred and eighty-nine dollars and twenty-three cents. And it is agreed and understood by and between myself and father that no interest is to be charged up against me at the time of the settlement of my father's estate that the amount herein set forth shall be deducted from my distributive share of said estate and be distributed among the other heirs as my father may direct by his last will and testament."

Whatever else may be said of the paper, it is plain that it, at least, acknowledged that appellant should be charged with the sum of $ 4,289.23, at the future settlement of the father's estate.

Upon the death of deceased, the widow aforesaid was duly appointed to administer the estate; and afterwards a partition suit was brought by one of the heirs and this appellant, being then a non-resident, entered his appearance and took leave to answer. Before the case came to trial, or indeed, before appellant filed his answer, the parties having in view, in...