Phillips v. Wilson

• Decision Date: 06 April 1923
• Docket Number: No. 23282.,23282.
• Citation: 298 Mo. 186,250 S.W. 408
• Parties: PHILLIPS et al. v. WILSON et al.
• Court: Missouri Supreme Court

250 S.W. 408

298 Mo. 186

PHILLIPS et al. v. WILSON et al.

No. 23282.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Ejectment by Lattie Phillips and others against Doyle Wilson and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Gregory & Holtzendorff, of Hazen, and Cope & Tedrick and E. G. Hammons, all of Poplar Bluff, for appellants.

Henson & Woody, of Poplar Bluff, for respondents.

SMALL, C.

I. Appeal from the circuit court of Butler county. Ejectment for 171½ acres of land in said county. Answer a general denial, except admission that defendants are in possession. Further answering, defendants state that they and the plaintiff Luella Williams are the owners in fee simple, subject to the dower interest of defendant Dovie Wilson, of said property; that plaintiffs Lattie Phillips and J. F. Holtzendorff claim adversely, but have no rights in said property; wherefore defendants pray the court to determine and quiet title between the parties, according to the statute in such cases made and provided.

The case was tried before the court without a jury. No instructions were asked or given. The court found a verdict, and rendered judgment that defendants and plaintiff Luella Williams were the owners of the property, as claimed by defendants, and the other plaintiffs had no interest therein. Plaintiffs duly appealed to this court.

The evidence showed that both parties claimed through Warren Wilson as a common source of title. He acquired ownership by deed dated March 27, 1902, and recorded March 11, 1904.

Plaintiffs' evidence tended to show that Warren Wilson moved onto said farm in October, 1902; that he was accompanied by the defendant Doyle Wilson, who lived with his as his wife; that they lived together as husband and wife, and always claimed privately and publicly, to be husband and wife, and were so reputed generally in said community, from the time they moved there in 1902 until the time of his death in 1915; that when they moved to said farm they had no children, but afterwards five children were born to them, the oldest of whom was 18 years old at the time of the trial, and the youngest 8 years, the oldest being married to Henry Wisecarver. The children were all born and raised on this farm, and all of them, except the married one, lived with their mother on the farm at the time of the trial. No one in the neighborhood, until this suit was instituted, ever questioned that they were man and wife, and always referred to and treated them as such.

The plaintiff Lattie Phillips testified for plaintiffs, and It was admitted by defendants that she was married to Warren Wilson in 1895 in Prairie county, Ark.; that the plaintiff Luella Williams was her daughter and the daughter of Warren Wilson, as the fruit of that marriage. Said Lattie Phillips then testified:

She and her husband, Warren Wilson, lived in Prairie county, Ark., and separated in 1902, when Wilson went to Missouri. The separation took place in June, 1902. Before the separation Wilson sold all the live stock and personal property he had on the farm. He also took all the household goods, except a sewing machine, cookstove, and some old chairs, which the witness received. He also gave her $10 in money, and she went back to reside at her mother's home in said county. Wilson realized about $900 from the property he sold. Wilson left their home in Arkansas with Samanthia Johnson (defendant Dovie Wilson). "She is my niece, and I have known her ever since she was a little baby. She has visited with us, but never lived with us. She was at our home when my husband and I separated, and was still there when I came back after my things. There was familiarity between her and my husband before our separation. They were all the time together, off to themselves, always with one another; they were out with each other. I was away about a week. I was at Little Hock during the first part of June, staying with my mother. Some one stayed with him. She was at my home when I went to my mother's, and they stayed there alone until they left in the fall. She was also there when I got back from my mother's, although she did not say she was there during my absence. I was never divorced from Warren Wilson, nor was I ever served with process incidental to his getting a divorce. I never knew or heard of him getting a divorce. We had four children. Three of them died in infancy."

On cross-examination the witness testified:

"I was married to J. G. Phillips by a man named Sanders, who was a justice of the peace in Prairie county, Ark., in 1904, and have lived with him as his wife ever since. We have lived in Prairie county, Ark., in the same county where Warren Wilson and I lived, since 1904. Warren Wilson and I agreed to separate in May, 1902. I went to my mother's at Little Bock to wait on her. I came back and then left again in June. She [defendant Dovie Wilson] came to our house in February on a visit, and when I went to wait on my mother she stayed there until I came back. The day he took me to the railroad station he told me that he didn't intend to live with me any more, and I went to my mother's in Little Hock, as I had no other place to go. He lived there at the same place where we had both lived after I had gone to live with my mother. That was in the spring of 1902. He left early in that fall, and I only saw him twice before he left. I went there to get what he was to let me have, which was one time, and Samanthia was there with him; and the next time I saw him was just a little while before they left and moved up here. He at that time tried to get my cookstove. A few years ago he came back to Arkansas after some tools and other things I had taken to my mother's with me through mistake. He came back after the box of tools, and told me where to send the rest of the stuff, which I shipped to him to Williamsville, Mo., where he told me. After our separation, when I went back, the defendant Doyle Wilson and he were living together; no one else living there with them. Warren Wilson came back on a visit a year or two before he died, and I saw him then. My daughter was married; she was at my house, and he came to see her. He said nothing about his Missouri home. All knew about his living in Missouri with Doyle Wilson was what her brother told me. She wrote to her brother all the time. He wrote to her as Samanthia Wilson. I knew nothing of her and Warren Wilson having a family of children, except that I saw a picture of her and her five children which she sent to her brother."

The deposition of F. L. Grady was taken and read on behalf of the plaintiffs. He testified that he was county clerk of Prairie county, Ark., and had charge of the marriage records of that county; that such records contain a marriage license of J. Warren Wilson to Lattie Raper; that exhibit A attached to his deposition is a certified copy of that record. Said Exhibit A contained copies of four separate documents, to wit: (1) A marriage affidavit; (2) a bond for marriage license; (3) a marriage license; and (4) a certificate of marriage. They showed that on the 8th of September, 1895, there was a ceremonial marriage before a justice of the peace of Prairie county, Ark., between Z. Warren Wilson, age 40 years, and Miss Lattie Raper, age 26 years.

The deposition of G. C. Stock was read by plaintiffs. He testified that he was chief deputy clerk of the circuit and chancery courts of Prairie county, Ark., and as such had charge of the records of said courts; that he examined the divorce records of said courts, going back over a period of 30 years, and found that no suit was ever instituted for a divorce by. Warren Wilson against Lattie Wilson or by Lattie Wilson against Warren Wilson, and no decree of divorce ever entered for or against either of said parties, according to the records of said courts; that the chancery court was the court which had jurisdiction in divorce cases.

Several other witnesses, relatives of the parties, testified for plaintiffs that Warren Wilson and Samanthia Johnson lived a short time together at Wilson's former home in Arkansas, and then left together.

Allye Macon testified for plaintiffs:

"I am deputy circuit clerk of this [Butler county, Mo.] county, and as such have charge of the divorce records of the county. I have made an examination of such records from 1902 to the present time, and find no record of divorce having been granted to Warren Wilson from Lattie Wilson."

Defendants here admitted that there was no record in said Butler county of any marriage between Samanthia Johnson or Doyle Johnson and Warren Wilson.

Defendants, to sustain the issues on their part, offered in evidence a certified copy of the marriage certificate of J. G. Phillips and Lattie Wilson, certified by the county and probate clerk of Prairie County, Ark., under his band and official seal. This certificate contained four documents: (1) An affidavit; (2) a bond for marriage license; (3) a marriage license; and (4) a certificate of marriage. It showed a ceremonial marriage before a justice of the peace of Prairie county, Ark., on the 11th day of September, 1904, between J. G. Phillips, age 50, and Mrs. Lattie Wilson, age 38. The "affidavit of marriage" was as follows:

"Certificate of Marriage.

"State of Arkansas, County of Prairie, Southern District—ss.:

"In the Office of the Clerk of the County Court of said County.

"Marion Floyd, of the county of Prairie and state of Arkansas, being duly sworn, deposes and says that J. G. Phillips, who has this day applied to me for license of marriage, and that he has arrived at the age of 50 years, and that Lattie Wilson has arrived at the age of 38 years; that they, the parties for whom said application is made, are now single and unmarried, and may lawfully contract and be joined in marriage. Marion Floyd.

"Sworn to and subscribed before me this 10th day of ...