Preston v. Rickets

• Decision Date: 31 January 1887
• Citation: Preston v. Rickets, 91 Mo. 320, 2 S. W. 793 (Mo. 1887)
• Parties: Preston, Appellant, v. Rickets et al
• Court: Missouri Supreme Court

2 S.W. 793

91 Mo. 320

Preston, Appellant, v. Rickets et al

Supreme Court of Missouri

January 31, 1887

Appeal from Perry Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

Nicholson & Robb and J. W. Nalle for appellant.

J Perry Johnson for respondents.

The matters relied on by the appellant, on the trial of this case, as shown by the record now here, are exactly the same matters set up in his answer in Chadwick v. Ellis & Preston and then relied on to defeat Chadwick in his action, and which were, in that case, decided against the appellant here and are now res adjudicata, and he cannot now be permitted to set them up, even if his pleadings were in a form to justify evidence of these equities, in order to maintain his present action. Verhem v. Schultz, 57 Mo. 326; Hickerson v. City of Mexico, 58 Mo. 64; Chouteau v. Gibson, 76 Mo. 38; Foster v. Evans, 51 Mo. 39.

OPINION

Norton, C. J.

This suit is by ejectment, to recover the possession of certain lands in Perry county. The petition is in the usual form. The answer admits that defendants are in possession of the premises, and avers that they were put in possession by virtue of a judgment and decree of the Wayne county circuit court, and, after denying the other allegations of the petition, sets up as follows:

"The defendants, further answering, and by way of new matter, say that the said pretended title and claim of the said plaintiff in and to said land has been fully tried and adjudicated and settled in a certain cause in the Wayne county circuit court, at the term, 1876, thereof, wherein co-defendant, Thomas G. Chadwick, was plaintiff, and Joseph Ellis, and James Preston, the plaintiff herein, were defendants, said action being a legal and equitable proceeding to try and determine the right to the title to said land. The court adjudged and found the title to said land to be in co-defendant, Thos. G. Chadwick; wherefore defendants here plead said prior adjudication, and trial, and judgment, in bar of this action."

Defendants obtained judgment on the trial, from which plaintiff has appealed, and, among others, assigns for error the action of the circuit court in receiving in evidence the record and proceedings of a suit in the Wayne county circuit court. This is the pivotal and decisive point in the case. It appears from the record that Melina Flynn, who was born September 15, 1830, and intermarried, in 1848, with one Jesse I. Merritt, was the common source of title; that, in 1849, there was born one child, Jesse F. Merritt; that, on the twelfth of February, 1850, the said Melina Merritt, while a minor, joined her husband in a deed conveying the land in controversy to one John F. Burgett; that said Melina Merritt died in 1851, while she was still a minor under the age of twenty-one years, leaving as her only child and heir said Jesse F. Merritt; that said Burgett immediately entered into the possession of the land under his purchase, and remained in the peaceable, undisturbed possession till his death which occurred prior to 1868, and after his death his heirs remained in possession till the third day of February, 1868, when, at a partition sale of the real estate of said Burgett, deceased, one ...