Taylor v. Heitz

• Decision Date: 31 October 1885
• Citation: 87 Mo. 660
• Parties: TAYLOR, Administrator, Plaintiff in Error, v. HEITZ.
• Court: Missouri Supreme Court

87 Mo. 660

TAYLOR, Administrator, Plaintiff in Error,

v.HEITZ.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Marion Circuit Court.--HON. THEODORE BRACE, Judge.

AFFIRMED.

Edward McCabe for plaintiff in error.

(1) The purported transcript of judgment of the circuit court of Adams county, Illinois, was not admissible in evidence. It is nowhere certified that Adams county is in the sixth judicial district, of which John H. Williams is judge. If the county of Adams is in the sixth judicial circuit of the state of Illinois that fact could have been proved and made to appear from the record in this case. As the record is silent on that subject it should not have been introduced in evidence. (2) The general doctrine is, that where matters could have been proved in a former action, the presumption is that they were proved, but this presumption may be rebutted. Freeman on Judgments, par. 273, 274; 24 How. 333; 5 Wallace, 580. A former judgment is not necessarily conclusive as to all the facts arising upon the record; parol evidence is admissible for the purpose of showing whether or not a question was determined in a former suit. Hickerson v. Mexico, 58 Mo. 61; Armstrong v. St. Louis, 3 Mo. Ap. 100. Parol evidence may be introduced to show that certain items and matters as to which the record is silent were not adjudicated. Sweet v. Maupin, 65 Mo. 65. The plea of former recovery is ever equitably and liberally construed by the courts; if the subject matter of the two suits is different, and the same question was not in fact litigated, and no evidence offered concerning it, the merits of the case may be investigated in the second suit. Spadling v. Conway, 51 Mo. 51. And where the record does not positively show what was passed upon, parol evidence may be resorted to. Ibid. The court erred, therefore, in excluding the testimony of McFall, who could have testified as to whether or not the rents, after the final judgment of March 27, 1877, had been estimated and included in the recovery.

Muldrow & Hart for defendant in error.

RAY, J.

This was a suit begun by attachment in the Marion circuit court, November 22, 1881, on the ground of non-residence. There was no issue on the affidavit in attachment. The object of the suit was to recover of the defendant, Heitz, the sum of eight hundred dollars, alleged to have been due the estate of the deceased, Thomas Redmond, by reason of a breach of a covenant against incumbrances, in the sale of land by Heitz to the deceased, Thomas Redmond. It appears that on the fourth of March, 1876, the defendant, Heitz, sold to Redmond, who was a resident of the city of Quincy, in the state of Illinois, a certain farm in Marion county, Missouri, in consideration of the sum of $6,400, and covenanted to and with the purchaser that the said farm or real estate was at the time clear and free of all incumbrances done or suffered by the grantor or those under whom he claimed. The facts were, and it is admitted in the answer, that at the time of the sale, March 4, 1876, John F. Renshaw and William A. Bamber were in the actual occupation of said lands described in the deed to Redmond (and referred to in the covenant), as tenants under a written lease executed by Heitz to them February 1, 1875, and leasing said premises to the said Renshaw and Bamber for the term of five years from the date of the lease, the lease expiring by its terms on the first of February, 1879. The lessees, Renshaw and Bamber, refused to yield possession during the lifetime of Redmond, the plaintiff in error. John R. Taylor procured letters of administration on the decedent's estate in Missouri and instituted the suit, as aforesaid, to recover damages for the breach of the covenant as above recited. The defendant admitted the execution of the lease to Renshaw and Bamber, the fact of their possession and their refusal to yield possession of the demised premises to the purchaser, and pleaded in defence a record of the circuit court of Adams county, in the state of Illinois, to show that the damages for the breach of the covenant had been inquired into, settled and adjusted in a former suit, wherein the decedent in his lifetime was plaintiff and Heitz defendant.

On the trial the plaintiff introduced evidence tending to prove that the reasonable value of the rents and profits of the farm sold to Redmond and let to Renshaw and Bamber was for each of the years 1876, 1877 and 1878, one hundred and ninety-two dollars per year. The defendant then offered in evidence the record of the Adams county court above mentioned, the court permitting the same to be read, to which action of the court the plaintiff at the time excepted. The plaintiff then introduced as a witness in rebuttal Thomas W. McFall, who stated as follows: “I was in 1876 and 1877, an attorney at law, engaged in the active practice of my profession in the city of Quincy, Adams county, Illinois, where I then resided and now reside. I am the same person named...