Perkins v. Goddin
| Decision Date | 07 March 1905 |
| Citation | 85 S.W. 936,111 Mo.App. 429 |
| Parties | PERKINS, Appellant, v. GODDIN, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Warren Circuit Court.--Hon. H. W. Johnson, Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.
This suit is for the conversion of certain wheat valued at $ 262.18 1-2. The wheat is alleged to be rent for the use of certain lands in Warren county. The facts are, Edward A Muier, who owned certain lands in Warren county, Missouri died on December 24, 1872, leaving as his sole heirs at law his brother, Gustavus H. Muier, and his sisters, Harriet A Goddin, Margaret E. Grey and Virginia A. Muier. In 1892 Virginia A. Muier died, leaving no issue. In 1898 Harriet A Goddin died, leaving surviving her, her son Benj. H. Goddin the defendant in this case, and Hugh and Arch Goddin and Nettie Taylor, nee Goddin. For two years immediately after the death of Edward A. Muier, his brother, Gustavus H. Muier, occupied the lands, then by an arrangement in the family turned the same over to his three sisters to occupy or to have the rents therefrom. Afterwards, as above stated, in 1892, Virginia A. Muier having died leaving no issue, the rents and profits were enjoyed by the two remaining sisters, Margaret and Harriet. In 1898 Mrs. Goddin died, thus leaving the rents and profits to be enjoyed by Mrs. Grey and the children of Mrs. Goddin, among whom is defendant, Benj. H. Goddin, who occupied the lands as tenant under an arrangement whereby he was to pay one-third the crops as rental, after deducting therefrom certain amounts to pay taxes, insurance, clover, grass seed, etc., the crops to be marketed by him, and after paying out the expenditures above indicated he was then to pay his aunt, Mrs. Grey, one-half the rents, or one-sixth the net proceeds of the crops after such expenditures, and the remaining half he was to pay to himself and his brothers and sisters who had succeeded to his mother's rights therein. Under this arrangement, which had been a continuous one for some years, the farm, in 1902, was largely, if not wholly, in wheat. On July 12, 1902, Mrs. Grey departed this life, in Boone county, Missouri, leaving surviving her, as her sole and only heirs, her children, Gustavus H. Grey and Ida M. Perkins, who is the wife of the plaintiff administrator in this suit. In 1902, at the date of Mrs. Grey's death, the wheat had been harvested and was being threshed on July 12th, the very day of Mrs. Grey's death. Defendant Goddin sold the wheat, one-third of which brought six hundred and thirty-four dollars, and paid certain amounts which he was authorized to pay for taxes, insurance, clover seed, etc., leaving a balance on hand of $ 524.37, which was, under the arrangement that had been in vogue among them for several years, due as follows: one-half, amounting to $ 262.18 1-2 to Mrs. Grey's estate, and one-half, amounting to $ 262.18 1-2 to defendant himself and his three brothers and sisters.
On August 4th, 1902, a petition to partition said lands was filed in the office of the clerk of the circuit court of Warren county. The parties plaintiff were this defendant, Benj. H. Goddin, and his brothers and sister, Arch and Hugh Goddin and Nettie Taylor, all the children and heirs at law of Harriet A. Goddin, deceased, against their cousins, the children and heirs at law of their aunt, Mrs. Margaret E. Grey, deceased, to-wit, Ida M. Perkins and John T. Perkins, her husband, and Gustavus H. Grey, defendants. On October 27, 1902, the plaintiffs in this partition suit filed an amended petition making their uncle, Gustavus H. Muier, a party defendant, thus bringing before the court all interests in said lands and interests in certain bequests arising out of a will made by one Talbot, an ancestor, long years before. Thereafter the following stipulation, signed by counsel representing all the parties to the suit, was filed in said cause:
It is to be noted that the last line of this stipulation provides, "rents now due to be paid over to sheriff on account," as these rents are the bone of contention in the case at bar.
On January 7, 1904, at an adjourned term of the Warren County Circuit Court, the court entered a decree in the partition suit. The decree is very long, takes up and disposes of all matters pertaining to the lands and certain bequests. That portion of it which deals with the rents involved in this suit is as follows: "And the court further finds that since the death of Mary E. Grey, plaintiff Benj. H. Goddin has occupied the said Warren county lands as tenant at rentals which amount to the sum of $ 534.37, and that said sum, $ 131.09 1-4, is now due from him to each of his coplaintiffs herein and unpaid; and that on account of said bequests there is now due to each of the plaintiffs herein a balance of $ 1,236.11 1-3. The court further found Ida M. Perkins and her brother, Gustavus H. Grey, on account of said bequests, the sum of $ 2,472.22 1-2 with interest from the date of their mother's (Mary E. Grey) death, but does not make any finding of a portion of these rents in favor of the defendants Ida M. Perkins and Gustavus H. Grey.
There was $ 524.37 rent money in the hands of defendant Benj. H. Goddin to be disposed of one-half of this should have gone to the estate of Mrs. Grey. The court ordered $ 131.09 1-4 paid to each of the coplaintiffs. There were three of them, brothers and sisters of Benj. H. Goddin, he making the fourth. Four times $ 131.09 1-4 equals the entire rent, $ 534.37. It seems that Goddin and his brothers and sisters were decreed all of this rent to the exclusion of Mrs. Ida M. Perkins and her brother Gustavus H. Grey, who were the children of Mrs. Grey to whom one-half of the rent was due. During the trial of the case at bar Benj. H. Goddin, defendant, said, in answer to a question by the court: "I have paid it to my brothers and sisters as directed by the court, part of it, I have not paid it all yet but part of it I have."
Up to this time there had been no administration upon the estate of Margaret E. Grey, deceased. The plaintiff in the case at bar is the husband of Ida M. Perkins, daughter of Mrs. Grey. He was duly appointed and qualified by the Boone County Probate Court as administrator of Mrs. Grey's estate, prior to the commencement of this suit. His wife, Ida M. Perkins, was one of the parties defendant to the partition suit mentioned and, in fact, Perkins himself was a party to the original petition therein but does not seem to be a party to the amended petition upon which the case was tried and disposed of. Perkins testified that his wife was a party to that suit; that he was at the court at the time it was disposed of but was not the administrator of Mrs. Grey's estate at that time; that he employed Judge Booth to represent his wife in that case; that Judge Booth did represent his wife's interests therein and he (Perkins) was present in court and heard the decree read. After plaintiff (appellant here) was appointed administrator of Mrs. Grey's estate, he began this suit in conversion, in the Warren Circuit Court, against defendant Benj. H. Goddin, seeking to recover for the estate of his decedent $ 262.18, the value of Mrs. Grey's share of the rental wheat.
The answer was a general denial. "And further answering, the defendant says that the matter herein sought to be litigated was fully litigated, passed upon and adjudged and decided at the last regular term of this court, in the matter of Goddin et al. v. Muier et al., and has become and is now res adjudicata and defendant now pleads said former adjudication as a complete defence to this action."
A jury was impaneled. At the trial plaintiff's evidence showed that he was the administrator of Mrs. Grey's estate; that defendant owed $ 262.18 1-2 as Mrs. Grey's share of the rents that had never been paid to her nor to her estate. Defendant admitted the same facts, but insisted that he was standing on the decree in the partition suit; that he had paid part of the amount to his brothers and sisters as directed by the court in the partition suit and intended to pay the remainder. All this testimony was objected to by appellant and exceptions saved to the action of the court in admitting it. Defendant introduced in evidence, over plaintiff's objections, and exceptions, the amended petition, the stipulation and the decree in the partition suit, and stood upon the proposition that the matter had been fully and finally adjudicated in the partition suit. The trial court took the same view.
The plaintiff asked the court to instruct the jury as follows:
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