Jones v. Patterson

271 S.W. 370, 307 Mo. 462, 1925 Mo. LEXIS 715

• Court: Supreme Court of Missouri
• Decided: March 19, 1925
• Status: Published

Opinions

This suit was instituted January 15, 1917, to partition 445.76 acres in Platte County. This is the second appeal. The facts developed at the first trial are clearly stated in the opinion by GOODE, J., in 282 Mo. 610 (222 S.W. 1018). In the state of the record the court was unable to decide the case on its merits. It involved a collateral attack upon the judgment of the Circuit Court of Montgomery County, Kentucky, construing the will and partitioning the lands of William Ragan, deceased. Elihu Park, Laura Park, his wife, and Mary Park, their daughter, then a minor, were joined as codefendants in that action. They were non-residents of Kentucky and were living in Platte County, Missouri, when that suit was commenced. The judgment recites that they were duly summoned in the action. This recitation is based on a warning order authorized by the Kentucky statutes. [See page 620.] Judge GOODE, near foot of page 627, said:

"This method of notifying non-residents of litigation to which they are parties, took the place in Kentucky, at the time of the suit in Montgomery County, of notice by an order of publication, and the steps prescribed must have been followed substantially for the notice to be effective. [Carr's Admr. v. Carr,92 Ky. 552.] Sections 57, 58, 59 of Bullitt's Code of 1883, were proved; but Section 60, which the Kentucky decisions hold fixes and determines the moment when jurisdiction is completely acquired by following the steps prescribed to notify a non-resident, was notproved. Nor were any of the decisions of the Kentucky Court of Appeals, which have adjudicated the effect of said statute, put in evidence, or their doctrines otherwise proved; and no stipulation was made that the relevant law of Kentucky might be noticed without proof of it. The question whether there was notice to the Missouri defendants of the suit, if it should be decided without the aid of the omitted Kentucky law, would be answered in the negative."

After the reversal, the plaintiffs filed a second amended petition, and certain sections of the Kentucky statutes and decisions of the Court of Appeals of that State, relevant to the issues, were pleaded by the plaintiffs and the defendants. There was also additional evidence offered at the trial. The court found the facts as they were found at the first trial; that is, that the plaintiffs, and the defendants, other than the appellants, Elihu Park and Stuart Thompson, were the owners of the 416.76 acres; that this land was bought with a trust fund and conveyed to Laura Park upon the terms, conditions and limitations prescribed in the will of her father, William Ragan, deceased, and that upon her death, June 6, 1916, without leaving issue surviving her (her daughter, Mary Thompson, having died without issue on June 4, 1900), the title passed to her sisters or their descendants according to the terms of the will as construed by the Circuit Court of Montgomery County, Kentucky.

In referring to the order to Mitchell, the trustee, to re-invest the shares of Laura Park in real estate, the former opinion uses the words "without having issue." According to the corrected transcript offered at the second trial, the order reads, "without leaving issue," so that the clause reads, "but in the event of the death of Laura Park, without leaving issue, then the title to her share," etc. [See page 622.]

At the opening of the second trial it was stipulated that either party may offer in evidence any relevant statute or decisions of the Kentucky Court of Appeals. It was also stipulated in this court that such statutes and decisions need not be printed, nor abstracted in the appellants' abstract of the record, but it shall be sufficient to refer to them in the usual manner and they may be considered by this court as if printed in full in the abstract.

In addition to the evidence referred to in the former opinion, it was shown at the second trial that on March 24, 1883, Elihu Park and Laura Park filed a petition in the Circuit Court of Platte County praying the appointment of Elihu Park as trustee for Laura Park, to receive the money and personal property due her from her father's estate in Montgomery County, Kentucky. It was averred that said fund was to be invested in real estate conveyed to said Laura Park as her separate estate for her life, with remainder in fee to her issue, if there be any, but if she dies without leaving issue, to vest in her surviving sisters in fee, etc., as directed by the will and as construed in the decree of the Kentucky court. The order was accordingly made, and bond given by Elihu Park as trustee for Laura Park. His final account as trustee shows four payments received from William Mitchell, trustee in the State of Kentucky, beginning April 21, 1883, and ending January 19, 1885, aggregating $7,695.94. It shows $6,227.99 paid out for 204 acres, and various sums for improvements on the land and other expenses. This does not include money received for the sale of the 138 acres.

The transcript of the record of the proceedings in the Circuit Court of Montgomery County shows that on June 9, 1883, the administrators of William Ragan, deceased, filed an amended petition, reciting they had received rents from the real estate since the death of the testator, amounting to about $5,000, and prayed instructions about its distribution; that on June 11, 1883, Elihu Park and wife, by J.B. Peters, attorney, entered their appearance to said amended petition, and that the court ordered the rents be distributed equally as to the eight daughters and their trustees for re-investment, as directed by the will "and no parts thereof belong to the said eight devisees absolutely."

The transcript also shows that on December 16, 1884, Elihu Park and his wife filed a cross-petition, signed "Peters for Park and wife." It averred that Elihu Park had been appointed trustee for his wife by the Circuit Court of Platte County, and prayed that Mitchell, trustee, be removed and the money in the hands of the administrators due Mrs. Park be paid over to Elihu Park as trustee. This cross-petition was withdrawn on December 18, 1884. Park testified that neither he nor his wife authorized Peters to appear for them in the Kentucky case; that he first learned of the suit in the Circuit Court of Montgomery County, Kentucky, after his daughter died in June, 1900.

Plaintiffs offered in evidence Sections 57, 58, 59 and 60 of Article II of Bullitt's Civil Criminal Code of Practice of Kentucky, revised in 1883, corresponding to Sections 88, 89, 90 and 91 in force prior to 1882, and also Section 38 of the Code.

Section 60 (91) reads: "A defendant against whom a warning order is made and for whom an attorney has been appointed shall be deemed to have been constructively summoned on the thirtieth day thereafter, and the action may proceed accordingly."

Section 38 reads: "1. No appointment of a guardian ad litem shall be made until the defendant is summoned, or until a person is summoned for him, as is authorized by Section 52; nor until an affidavit of the plaintiff, or of his attorney, be filed in court, or with the clerk, or presented to the judge during vacation, showing that the defendant has no guardian, curator, nor committee, residing in this State known to the affiant."

I. Numerous decisions construing these statutory provisions are referred to in the pleadings and briefs of counsel. In Northern Bank of Ky. v. Hunt's Heirs, 93 Ky. l.c. 75, theJurisdiction: court said: "There is no command to any officerWarning Order. to execute this order, but it stands executed when an attorney is appointed to correspond, and a judgment in rem will be rendered — the facts authorizing it — if the defendant fails to answer within the time prescribed by the Code."

"The words, if the defendant be constructively summoned, mean only the making of the order of warning against him." This last quotation is from Irish Bldg. Loan Assn. v. Clemons, 78 Ky. 79, l.c. 82.

The decree of the Kentucky court construing the will of William Ragan, was rendered May 30, 1892. The transcript of the record thereof was duly authenticated October 30, 1920, twenty-eight years after the rendition of the judgment. The warning order and the clerk's certificate that it is mutilated and torn, in the corrected transcript, are the same as they appear in Judge GOODE'S opinion at page 620.

Appellant's learned counsel contend there is no evidence in the record that there was a warning order or that the warning attorney performed his duty to notify the non-residents.

In Meddis v. Dellinger, 112 Ky. 500, 66 S.W. 185, not even a scrap of the warning order could be found. The Court of Appeals said: "Is the judgment rendered in 1878, at the instance of Floyd Frye — case Number 32754 — void by reason of the fact that the warning order written out by the clerk does not appear in the record or papers on file? In our opinion this does not render the judgment void. Aside from the question whether the non-residents therein were necessary parties to the suit, we are of the opinion, and so hold, that the mere failure to find the written warning order made by the clerk will not authorize the court, at this remote period of time, to declare the judgment void. The record leaves no doubt that a warning order was made. The clerk so certifies on the petition, and also makes such memorandum on his docket book. . . . After the lapse of more than twenty years, the court must conclude, in the absence of a contrary showing, that this certificate of the clerk is true, and that the warning order was made. The report or answer of the warning-order attorney is on file, and, as this is a jurisdictional fact, we are authorized to presume in favor of the jurisdiction, rather than against it. It may not have been possible or practical to write the warning order on the petition. If it had been written on a separate piece of paper, and attached to the petition, it would have been sufficient. It could not be that, if it was detached from the petition, and lost, the judgment would be destroyed. We must presume that it was written as the clerk certifies, and has been lost out of the papers, which presumption upholds the judgment, rather than ignores the certificate, and the docket entry, and the other facts apparent from the record, and from the mere failure, after twenty years, to find the warning order in the records, declare a solemn decree of a court of general jurisdiction void."

In Ball v. Poor, 81 Ky. 27, the warning-order attorney simply wrote a letter to a non-resident defendant. The court said: "The report of the attorney appointed to defend for appellant as a non-resident in the case of the city of Covington, shows that he merely wrote a letter to her, and delivered it to her agent in the city of Cincinnati, Ohio, instead of making `diligent efforts to inform the defendant by mail concerning the pendency and nature of the action,' as required by law. But as by Section 60 of the Civil Code `a defendant against whom a warning order is made, and for whom an attorney has been appointed, shall be deemed to have been constructively summoned on the thirtieth day thereafter and the action may proceed accordingly,' the judgment in this case cannot be regarded as rendered prematurely, because the attorney failed to perform the duty required."

From the record in the instant case there can be no doubt that a warning order was made and, as said in Northern Bank v. Hunt's Heirs, supra, the order "stands executed when an attorney is appointed to correspond."

In view of the order reversing and remanding the case, "in order that the parties, if they desire, may make proof of any Kentucky statutes or decisions which bear upon the questions involved," and of the proof at the second trial of the statute and decisions of the Kentucky Court of Appeals, supra, we do not think it necessary to cite other decisions or further pursue this branch of the case. We must conclude that the record shows that the Circuit Court of Montgomery County acquired jurisdiction in the premises and that its judgment is good as against a collateral attack.

II. Furthermore, the proof is conclusive that Elihu Park and his wife accepted the 138 acres allotted to Mrs. Park and her share of the personal estate upon the terms, conditions and limitations of the decree, if they did not, in fact, by intervention, become parties to the proceedings, andEstoppel. are estopped to question or attack the decree for want of jurisdiction as to them. They not only accepted the trust fund; Mary Park Thompson, when of full age, on December 31, 1897, also accepted it by joining with her father, mother and husband in the conveyance to Anna R. Burchett of the 138 acres allotted to her mother, Laura Park, for the purpose of converting the land into money for re-investment; the trust funds realized from the 138 acres were accepted and invested in the land in controversy at the instance and request of herself and mother, in accordance with the terms and conditions of the decree. On the plainest principles of justice they may not accept the benefits and repudiate the judgment through which they acquired the 138 acres of William Ragan's estate. [Lindsley v. Patterson, 177 S.W. (Mo.) 826, 832 (13); Lynch v. Jones, 247 S.W. (Mo.) 123, 127 (4).] In my humble opinion, Mary Thompson, as well as her father, mother and husband, recognized and ratified the judgment of the Montgomery County Circuit Court, and are therefore estopped to question the jurisdiction of that court in the premises. They cannot play fast and loose, blow hot and cold, or accept and retain title to the land and repudiate the judgment through which they acquired title.

III. Plaintiffs pleaded Section 9, Chapter 63, Article I, of the General Statutes of Kentucky, in force since the year 1851, which reads:

"Unless a different purpose be plainly expressed in the instrument every limitation in a deed or will contingent upon a person dying without heirs, or without children or issue, or other words of like import, shall be construed a limitation to take effect when such person shall die, unless the object on which the contingency is made to depend be then living, or if a child of his body, such child be born within ten months next thereafter."

This statute is substantially the same as our Section 2268, Revised Statutes 1919.

In Phoenix Third Nat. Bank v. Cassell, 224 S.W. 1073, decided in 1920, the Kentucky Court of Appeals construed a will quite similar to the one in question. There the testator devised an estate for life to Telitha Randall, with remainder to her children. "In the event she dies without issue, the real property mentioned herein as devised to her for life, with remainder to her children, shall go to and be equally divided among my brothers and sisters who shall be living at the time, except Thomas G. Randall and A.P. Randall." Telitha was unmarried at the time of the testator's death, but afterwards married Thomas L. Cassell. The court said:

"On the other hand, it is argued for the appellant that the language of the will referred to can only mean without issue (i.e., a child or children) living at the time of Mrs. Cassell's death; in other words, that only in the event of her survival by a child or children would the latter become vested with an indefensible fee in the property. We think this contention sound and find that it is supported by ample authority. There can be no difference in meaning between the words `in the event she dies without issue' used in the will of Charles S. Randall, and such words as `if she dies without leaving a child or children.' In either case, the title devised subject to such contingency would be a defeasible fee. The only question to be considered in construing such language as `die without issue,' `without leaving issue,' `without issue surviving,' or `living at the death,' etc., is as to what time the testator intended the `death without issue' to take effect, for this is important in determining whether the first devise is defeated by such event and the limitation over made effective. Manifestly the expression `in the event she dies without issue,' contained in the will under consideration can only mean a definite, as opposed to an indefinite, failure of issue, and must therefore be held to mean the non-existence of issue at the death of Telitha Cassell.

"An excellent illustration of our meaning will be found in Moore v. Moore, 12 B. Mon. 651, in which the devise was a tract of land to the testator's daughter, Martha, with remainder, `if she should depart this life without issue,' to the testator's brothers and sisters. It was held by the use of the above language the testator meant issue living at the time of the daughter's death, and not an indefinite failure of issue."

And again: "The opinion in Kennedy v. Arthur, is largely made to rest upon certain provisions of the will in that case, which are wanting in the will in the instant case; and as Fisher v. Lott involved land the title to which was in part passed on in Kennedy v. Arthur, the court in deciding it felt bound by the opinion in that case. We think it clear from a reading of the entire will in that case that the testator did not intend that the property devised to Mrs. Cassell should pass to strangers in blood; hence he provided in his will that, if she should die unsurvived by issue, the property should go to his brothers and sisters living at the happening of that event."

We think it clear, therefore, that the words "die without issue" or "die without leaving issue" were properly "construed a limitation to take effect when such person (that is the life tenant) shall die," as expressed in the Kentucky statute. From a reading of the entire will we also think it is clear that the testator did not intend that the property devised to his daughter, Laura Park, for life, should pass or descend to strangers in blood in the event she died without leaving issue surviving her at the time of her death.

IV. The appellant Elihu Park complains in his brief that the court erred in holding that he was not the owner of an undivided interest in the ninety-one acres. [See former opinion, page 624.] This refers to a deed dated March 1, 1886, by Elihu Park, conveying a separate estate for life to Laura Park,Vendor's with remainder in fee to her issue should there be any;Lien. but if she dies without leaving any issue, to vest in her surviving sisters, etc. The consideration recited is $5,000. The deed recites: "The consideration paid for this deed is a part of a trust fund arising from the will of William Ragan, . . . who was the father of said Laura Park and by the terms of said will, said land is her separate estate for life, without remainder in fee to her issue, should there be any; but if she dies without leaving any issue, to vest in her surviving sisters in fee," etc.

Over the objection of respondents that Park was incompetent to testify to the transaction with his wife who was dead, he testified in substance that his wife gave him her one-day note, dated March 1, 1886, for $5,000 for the purchase price of the land; that she paid, March 1, 1886, $718.94; March 22, 1886, $1902.60; April 5, 1886, $600 and that on January 1, 1894 she paid him $300 out of her individual fund, and that no further payments were made. It is contended that about three-eighths of the purchase price was paid from the trust fund, and that the remaining five-eighths is not impressed with the trust; that Laura Park must be held to have owned that interest in her individual right, and that appellant acquired five-sixteenths by inheritance, and is entitled to curtesy in the other five-sixteenths.

This claim rests entirely on the evidence of the appellant, Elihu Park. He is so thoroughly impeached that the chancellor probably gave little, if any, credence to his testimony. Respondents insist that he is an incompetent witness to transactions with his deceased wife who died more than twenty-two years after the date of the last payment. See Miller v. Slupsky,158 Mo. 643. But, waiving that, it is clear that appellant's remedy, if he had any, was an action on the note to enforce his vendor's lien, which, it would seem, was barred by limitation. Furthermore, we are of the opinion that the appellant cannot assert this claim against the explicit recitations and covenants of his deed, after the death of the grantee and the lapse of so many years. [Orchard v. Store Co., 264 Mo. 554, 563; Herndon v. Yates, 194 S.W. (Mo.) 46, 48.] This contention is without merit.

Appellant Park also claimed in his answer that immediately after Laura Park purchased the land described in the petition he and she moved on it, and, believing that he and his wife had good title, he made substantial improvements amounting to more than $5,205, which enhanced the value of the land and for which he claims reimbursement. He erected a dwelling house, barn and other buildings on the land which he subsequently conveyed to his wife, but some of the improvements were on her other land, as he testified. He consulted eminent counsel who construed the Ragan will as vesting a life estate in Laura Park with remainder in fee to Mary Park. Counsel cite no authorities in support of their contention. The principal improvements for which appellant claims reimbursement were on his own land, which he subsequently conveyed to his wife, as hereinbefore stated.

We are unable to see on what principle appellant is entitled to be reimbursed for improvements in an action against his grantee or her heirs, or for improvements made on his wife's land, in the absence of a special agreement to compensate him therefor. The case was well tried and the judgment was for the right parties. It is accordingly affirmed. Railey, C., concurs.