*1 362 Floy Respondents, v.
Albert Ahern et al., M. Matthews Galloway (2d) Appellant. S. W. Waugh, Andrew Burton 377. Two, July 11, Division 1935. Douglas P. R. Terry S. appellant. Jones for *2 Barlcer, Drury, Durham <& Albert T. Ennis and Echo. T. Eversole respondents. for *4 brought
COOLEY, May 1, 1931, C. This action was in the Cir- Washington County partition for the of lands located Court of cuit alleges county. petition The defendants and names nine claims, any, if persons who derive their from there are unknown others) devisees, (and heirs, Josephine as Mary several grantees, etc. ownership claim as nine col-
Plaintiff named defendants intestate in Mary Josephine Waugh, who died heirs lateral of said to the Circuit Court of St. 1930. The cause January, sent change name is appellant, The whose County of venue. Louis designated in his answer Galloway but who is Andrew Burton petition in the a defendant. Galloway-Waugh, is not named A. B. party be made a de- given intervene and leave to He asked answer, an in the record al- pleading, called He filed fendant. question of the lands was sole owner leging that he in substance Mary and her hus- adopted by Josephine been reason being pray- heir, and only Stewart Charles band Waughs alleges that Said adjudge. answer ing court so to tending designed and facts but also states appellant, adopted thereof such adopt performance agreement to an (cid:127)show be that an status to decree equity would court The suf- the facts. pro'of sufficient upon heir son and *5 challenged it be set here, need not so is not answer ficiency of said Matthews, reply a defendant, filed Wes one Plaintiff and out. allegations and “for thereof upon the issue answer, joining said only parties save hereto, all the other behalf of themselves, on adjudge the title court to defendant,” the praying intervening the question the lands in plaintiff be in the and the named de- appellant fendants and that had no interest therein. Plaintiff filed asking a motion court the to hear determine the present- issues by ed appellant’s said answer separately first and from the issues among made as plaintiff the other defendants. That motion and, apparently by sustained consent of all parties, the court proceeded try issues by appellant’s the so raised answer, sаid separate effect as a action between plaintiff on one side and defendants, the other claiming title as tenants in common, on the other. The court found that Galloway- Burton Andrew Waugh was not son of said Mary Charles Stewart and Josephine Waugh them, or either of was not the owner of and had no question interest the lands in and that his claim cast a cloud on of parties the title other were entitled to hav removed, judgment accordingly. and rendered judgment From that Andrew unavailing Burton Galloway-Waugh, after motion for new trial, appealed. only question presented
The appeal, on this far as so con cerns case, sufficiency the merits of the is the of the evidencе. Pre liminary to question, however, consideration of we must de respondents by filed judg termine a motion for affirmance of the alleged insufficiency ment because of the of appellant’s abstract of the record.
Appellant’s abstract of form, states most the evidence narrative only relatively portion being questions small by thereof set out gist respondent’s answers. The of contention as stated in their mo- affirm, tion is: “That of as abstracted whole said evidence is required presented by not to the Court for review as the rules of pre- the court and the statute and that its force effect is not pretended while is served and that set forth in narrative form testimony, is in fact a narrative of but is rather con- not testimony portions by densation certain portion that all or a substantial of the force and effect of the entirely credibility of the bearing witnesses evidence corrupted appear or from said abstract and omitted does going objections by respondents admis- many made to the entirely por- substantial sibility are omitted and that evidence given entirely witnesses is omit- evidence the several tions of the alleged exceptions ted.” is further that the bill of contains It ninety-eight man- exhibits, besides pages, typewritten exclusive matter is condensed into uscript depositions, all of which pages The then eighty-eight pages abstract. motion printed orally all thе witnesses who testified practically states names of bill of pages trial, typewritten number of giving of each and the number exceptions the examination covered *6 368
printed pages abstracting in testimony of the abstract used each. The motion does not show what evidence or exhibits it is Respondents claimed were they omitted. filed also what denominate supplemental they abstract record, which in support offer to motion affirm and also to be considered the merits on of the “if proceed.” Respondents however, case the court elects to say, supplemental complete present said abstract does not abstract exceptions сonjunction appel- of the bill of either alone or in with is 184 supplemental lant’s abstract. The abstract a document of printed pages. by question testimony It sets out answer the respondent’s in the witnesses named motion affirm it is to which abridged appellant’s in Appellant contended is too much abstract. suggestions opposition denying has in affirm, filed to motion to alleging any that he that he had omitted evidence and reduced 7, permitted by form Rule preserving evidence to narrative our comply in bona fide effort rules effect, force and our its reading record, for and to save court time and labor in which says penalized. he be he should not compared appellant’s supplemental abstract
We ab- have in the former we find no material omis- stract with the result that substantially the same the same tes- sions evidence. Where or times, once, is in nar- repeated more stated timony was one or Objections to evidence and'the appellant’s in abstract. form, rative arguments relative to rulings between- counsel court’s thereon omitted, complaint there no proffered generally but is evidence are rulings concerning trial in the admission appeal court’s on this incorporating evidence, necessity is shown for and no or exclusion of appears exhibit, respond- It that one in the abstract. such matters in evidence, copied in is intrоduced not H, which was ents’ Exhibit exhibit, except for name therein stated the abstract but is copied is another, appellant’s Exhibit date, similar is in fact. The name date abstract,- is an admitted and that in the Exhibit in this case. Said are not material omitted exhibit conveyance showing lands later. The deed will referred be marriage license of question Mr. and the in in copied appellant’s ab- not They are introduced. wife were controversy therein, as to is no and there but are described stract disputed they show are not legal effect. The facts or their contents appeal question involved this light on the no it could throw identified but exhibits other There were some us. them before have of thеir con- the nature The abstract shows evidence. offered bearing case. have no could apparent it is tents and the abstract. from omitted They properly were regarding the condensation complaint real Respondents’ condensing it in- by thus abstract testimony setting the material parts by question stead of out thereof and an- present testimony way swer failed to has such credibility this to estimate the properly enable court of the wit- *7 finding make facts, may nesses own of the and its as it in an do constituting In equity printed part case. their statement their of respondents say, bearing credibility brief here “As on the of the respondents brought in up have an indexed witnesses volume the testimony of the witnesses far their all so as relates to credibil- bearing ity.” Thus we before us all the upon have evidence only question presented this appeal. controverted on ¥e have con- respondents’ should cluded that under the circumstances we overrule insufficiency affirm of appellant’s motion to for abstract and deter- on its merits. mine case January March, 1888.
Appellant 9, 1893, About his born him Chil guardian, mother, as sole natural surrendered giving custody Society that institution full Missouri, dren’s Home of him him, authority and of to find home for and con- control with Society De- adoption. sent The records of the show that on to his (Charles 1897, placed C. S. J. Stew- 8, cember he was and M. Waugh. April 13, 1898, Under Josephine) datе Mary art and of following No. 4, Exhibit was entered into be- contract, Society (a Home and the corporation) Children’s tween said Waughs: day AGREEMENT, OF Made and entered this
“ARTICLES HOME D., SOCIETY April A. between the CHILDREN’S of Waugh S. and Josie MISSOURI, part, of the and party OF first C. Point, Washington County of wife, Mineral and of Waugh, husband part. Mo. parties of second and State of placed has party part of the That the
“WITNESSETH, first part at custody parties of the second control of and care, Washington Co., trained, loved Point, to be in Mineral their home life, requirements certain educated, be fitted so as to for name, been child said Galloway Andrew B. child male 9 A. 1888. D., born Jan. leave part agrees that will said child first party “The long they love, so аs shall part the second party of
the care of the child care for said in a suit- properly nurture, educate cherish, they expected be to do manner, as such would Christian able and hereby acknowl- party And the second natural child. were it their they agree part will child, receipt edge said above, named both keep the conditions faithfully perform intent. letter and notify' agree promptly will they further “And Society of Missouri Children’s Home Superintendent State B. of said Andrew Office the death change or of of Post any Galloway in he age case should die he before further, when the child shall age have attained the of 21 years, they give will fifty ($50) good dollars in together money, lawful with аt least good two clothing throughout and sufficient suits of to said Andrew B. Galloway and will allow the said child after 21 years he becomes go age, home, and from their enjoy and to home freely though fully it was their natural child.
“Provided, however, that, Andrew. Galloway B. named above child, prove reasonably shall himself faithful to the interest of C. S. legal and Josie age, until of and does not leave their home of his own volition. When the above named conditions bind- ing upon the CHILDREN’S HOME SOCIETY OF MISSOURI complied C. S. & Josie shall with, be then shall this contract remain in force.” II, above,
Exhibit which we have copied mentioned in appel- Waugh’s abstract, lant’s found in Mrs. effects after her death. *8 “exactly áppellant’s is It said to be similar” to Exhibit No. ex- cept May Butler, “that it is child, made to Bessie a female bom August 12th, 1889, 1st, 1903, November provides dated and agreement 4, signed same as Exhibit by No. the Children’s Home ’’ Society. It respondents purpose was introduced for the of show- ing by Waughs Exhibit No. was not adop- that intended as an long May contract, tion since Bessie Butler remain did not they agreed is home and there no contention that ever or adopt her. dispute appellant evidence shows-without The remained Waugh February, 1914, twenty- home until about when he was Waugh Waugh years six Mr. died 1904. Mrs. continued old. remaining farm, with her. was all appellant reside on the He at Waughs family, working times as a member of the treated being upon place the farm about the аnd sent to school and Sunday receiving the and nurture ren- School and same care dering as children in similar farm homes in the the same services Waughs community. years The been five or six when had married They were and never they appellant took into their home. childless They greatly appel- became attached children their own. had himself them a them and he conducted toward lant and he to expected The would be to do. dutiful, obedient and affectionate son appellant facts. In 1912 dispute as to these indicates no evidence aged years Huff, sixteen, about and for two Ella then married Miss live, young continued to with “Mother his wife thereafter he arrange- farming some rentаl part place under Waugh,” he Waugh Mr. Waugh. well here that may It be to state Mrs. ment with he left his entire estate to 9, 1900, by which will, June a dated left Waugh’s Mr. mentioning time after appellant. Some wife, not death Matthews, John "Waugh, a brother of Mrs. upon moved Waugh thereafter part appears farmed of the lands. It that about April, 1913, disagreement there was some ap- between Matthews and pellant, as a result appellant of which made a settlement of such farming arrangements previously business matters and as had ex- Waugh gave among parties, appellant receipt Mrs. isted reading Waugh Mrs. M. J. as follows:—“Received of the amount 13th, against date, up April for all her this 1913.” At full claims Waugh gave $132 Mrs. cheеk for which his time feed.” evidence that the wife testified was for “some The indicates given receipt Appellant’s $332. was total amount for which was potato crop, her husband’s of. a wife testified that included share arrange- growing logs” work, all “a cut of saw some out operating Matthews were then ments under concerning being papers some served farm. some There is evidence Floy Mat- Respondents’ witness, time. appellant about that upon years old daughter who was about eleven thews, Matthews, John brought thought Waugh some Mrs. had time, testified that she get place. Appellant’s tes- appellant off the wife kind of suit to Waugh” sign she got papers, some kind of “they Mrs. tified that not; Mat- or that John petition whether a in a suit did not know Waugh “got Waugh) Mrs. Berryman (a sister of Mrs. thews and Mrs. not house, Mrs. did but (appellant) out-of the to move Burt Potosi and ‘no’; Matthews went to but John approve of it and said got sign, got up papers write Bversole to signed responsible if really she hysterical she but she was so after mentioned made settlement above it.” It seems actually Appellant filed. that a suit was that. There no evidence thereafter but the exact soon wife left the home and his *9 by testimony appel- leaving except is not shown time of their They Col- 1914. went to in February, it wife, lant’s who said was Except for the subsequently resided. they Illinois, where linsville, indicating was that there just related, there is no evidence episode n ever relations that other- harmonious any in the affectionate and rift ap- between always have existed to appear from evidence wise parents. foster pellant and his neighbors and appellant, friends for
Six witnesses or seven came appellant after he with and associated Waughs, had known who always him called they heard Waugh had home, that testified into the generally Calloway-Waugh, that he was Waugh or Burt Burt n so Galloway- Waugh, others neighborhood; some known know, to equal opportunity equal with number, Waugh. About an they had never heard that respondents deposition for by testified Galloway. It clear seems name than by any other called appellant A changed Waugh. definitely to was not name appellant’s (cid:127)that George appellant’s appears reason for this fact evidence. Mc- A. Donald, lawyer, by appellant years a who had been several consulted Waugh’s gone Mrs. death, before testified that he had to Mineral investigation records, Potosi Point and to make certain seen had Waugh “Why boy Mrs. her your had asked didn’t this take name,” I replied, to “Well an old I she had was maid when got given boy married and if we that after had our name we had him, illegitimate adopted put him in class we would have anything (Appellant did not want to cast on that name.” was born Waughs married.) years Appellant’s several before the werе wife Waugh explained Mrs. testified that to her that the reason she had Waugh changed, not had Burt’s “when call him name she would people Waugh,” him like other called was that “she was an old middle-aged when she married Mr. he a Waugh, past maid was only got Burt, man, they years they married had been five when eight years a have boy past old, and Burt was and would caused with explanations they people when were in conversations and that embarrassing.” Appellant married would be under the name Galloway have since that name. and he and his wife used testimony By seven of six or witnesses it is shown that both Waugh repeatedly appellant as son Mr. and Mrs. referred to adopted son, or their occasions so introduced him. and on several indicating Expressions pride that kind and others and affection having Waugh Mrs. appellant are been made for testified gone Collinsville, appellant and Illinois. Some after his wife had Waugh he his say, testified Mr. about the time heard going him home, adopt wife took into their he was that foregoing there adopted that he him. In addition to the and later had tending very years few strongly to show that within evidence Waugh adoption a deed after into the home taken Waugh, whereby they attempted was executed Mr. and thought legally though adopt they adopted appellant, had instrument been recorded. seems not to have wife, Huff, testified that
Mrs. Edna sister-in-law of neighborhoоd child; once, ap- after in the she lived while, went to the home pellant had been a short she there stay Mr. grandmother, been called there to with her who had town; aged Waugh’s his wife that she while he and went.to mother going Potosi, Waugh say they were coun- Mr. and Mrs. heard taking go, legally adopted; did ty seat, to have “Burt” evening Mr. them; they came home that when Burt with no mother, now have one can “We Burt *10 .to said if she wanted if away us, not even mother to or from him take envelope paper an it tried;” handed with to his that he she they a shelf in a corner the room wife, put “where she on receipts, and etc.” deed tax She said papers and usually kept thought years she and she two and a half older than Burt about years time, at but the was about ten and a half or old that eleven dates of birth herself and show that she must have been fourteen. thirteen or
Appellant’s February, she visited wife testified that about Waugh gave Waugh, home, Mrs. Mrs. latter’s- and while there referring papers,” them “Burt’s with papers, her some strict saying give injunction preserve carefully, them that she would stay them to Burt he don’t at home all the time and therefore “but ’’ way I you; will them that on her to her home in Collins- entrust there three or en- papers; ville she examined that were bundles containing velopes papers, papers” had been one the “church that “Home,” another “contract” sent to Mrs. from the (Exhibit 4), “adoption paрers;” the Home and the other “adoption 4. She paper” that was not Exhibit described quote it adoption appearance; its size and said she could not paper, fulfill exactly, “to educate and provision but that contained writing ú a child” “there was some parent duties of a and that Charles in case of other children that should be born to there about Josephine they equally share in al1 Waugh, shall alike and signed things Galloway. by Mr. Mrs. That was with said Burton Waugh’s name, two witnesses over on the left and then there was She not remember the names of hand side from that.” did Notary part witnesses. She said that “on down was the Public seal, Notary Public’s and then there was Jim Shields’ and with the sign Notary name, Notary it, with the seаl Jim Shields with the on got papers it.” that when home she She testified she showed mother, they witness’s husband Huff, her Mrs. Sarah ex- them; days Whaley, few Mrs. Mrs. amined and read that within a Davis, neighbors friends, read Donnelly Mrs. saw and deed; years paper or that later and several before the adoption con- accompanied her husband to St. Louis to this case she trial of McDonald, papers all the were turned lawyer, Mr. and that sult Mrs. testified Donnelly, Whaley Mrs. Huff over him. Mrs. it, They “adoption paper.” described saw and read the language effect. similarly but as to substance the same All said the not referred to others. Some mentioned details ink yellow. One, Huff, was “kind paper looked Mrs. old and ink;” thought looking ink, pokeberry I likе time purple old if children should be born provision it contained a substance that equal “they in all should share and alike to Mr. and Mrs. things Donnelly Mrs. also Whaley testified whatsoever.” if provision in substance children paper contained a Waughs appellant should such children and should be born to the language Mrs. equally, though they not use the same share did adoption paper bore the names All of these witnesses said the Huff. *11 of appellant, Josephine of Charles as or Charles S. and makers, and of Shields as Notary (It appears James Public. from evidence generally the that Mrs. or Josephine was called Josie it Notary is conceded that Shields Pub- James was then a Potosi.) Whaley liс at Mrs. said that it contained a statement “something way: in this certify I, ‘This that Charles Jose- is to phine something Galloway’; way had Burton in that regard something . . . equally and there was to that he would share, Shields, was and it marked James that is his name was what paper on the bottom ... as it was on the that he should share any family.” other if is heirs there other heirs the All those “adoption paper” witnesses that the was testified referred to 4, not Exhibit which exhibit was -shown Mrs. to them at the trial. Whaley Donnelly and Mrs. Sarah Huff are sisters. Mrs. is related Davis, wife. Mrs. or his who is said to have read the adoption paper, trial, was dead as was James at time Shields, depositions and their had not been taken. many years
Mr. McDonald testified that he was had been for Louis, also, practicing lawyer a in St. since served and had judge Correction; frequently provisional Court of Criminal appellant, accompanied by wife, that his came to his and con- office him; they brought that papers sulted with him “three left distinctly remember,” I Mr. “adoption one of which was an deed.” McDonald is not of counsel this case. For some reason not dis- closed, appellant employed represent other him in this counsel to messenger get action and said counsel sent McDonald in Mc- papers papers which had been left him. The had been by appellant Donald’s office since been left there messenger wife. He turned over to the who called for them all papers except “adoption deed” which could not be found. papers papers” and The which he surrendered were the “church The They 4. the trial. produced contract called Exhibit were sufficiently “adoption for, accounted in the loss deed” was secondary court, its con- opinion of the trial to admit evidence of point tents. As no made the admission of that evidence here on Me authorizing Mr. the facts its not be detailed. admission need the instrument which he referred deed of Donald described gave general appearance; said that it was adoption, its size and ordinary 4; “separate paper” Exhibit was “on an and distinct frоm pen in with adoption form, is filled deed of a sort of form that Gal- time; “Burt ink,” set out that such as was used at therein; loway, Galloway,” party A. was described B. signed not re- Waugh, Mr. but he could was both acknowledged remem- could not or not. He member whether it name signers, thought old man’s “the ber first names of the — August name that.” or some like claiming On of respondents, Ploy Matthews," behalf a defendant, "Waugh, an interest the lands as niece and collateral heir of.Mrs. A orally. part testimony, above, testified of her as indicated re- adjustment lated to matters involved in settlement or made shortly "Waugh before and his wife left the home and to leaving. reason for their She further that liv- testified she was *12 ing "Waugh appellant’s with Mrs. at the timе wife claims have to "Waugh been there and received Mrs. papers to have from the above testimony mentioned. Her Galloway contradicts that of Mrs. as to occurrence. Galloway Floy that Mrs. testified that came Matthews just Waugh given into the room after Mrs. had her papers, the and among to some then conversation which occurred the three. Miss Mat- only not any thews denied that such conversation had occurred but Galloway said that Mrs. was not at there all at or near that time. testimony respondents’ Aside from of that Miss Matthews the of wit- deposition by only nesses was prove that tended the witnesses had never appellant by any heard name called or referred tо other Galloway. them, however, signed than paper, One of had. dated February 3, 1930, deposition taken, before his which he stat- appellant 1896, neighbor- ed that he had known since lived the hood, and knew that Mr. Mrs. appellant held out to everybody as “during acquainted their son all the time I that was parties.” all of the
It is well prior present settled that to the enactment of our providing adoption by statute proceedings, court a court of for equity, proper case, in a adoption was authorized to decree an al though Drake, statutory there been no adoption. had In Drake v. 966, (2d) 328 43 556, Mo. S. W. held that such court has power governed by that present under the statute. This ease is the proof clear, old law. The claim adoption of be must cogent convincing and of character leave sub such as to no ground stantial for reasonable doubt. But while the evidence nec essary agreement adopt adoption an establish or a status of making must indispensable of such character is that be not the of agreement by may contract or be shown direct evidence. It be by acts, shown adopting parents. conduct admissions of “If adopting parents statements and conduct such are as satisfactory agreement. to furnish proof clear and that an adoption existed, agreement must may then the have be found as an Drake, inference frоm that v. 328 Mo. c. evidence.” l. [Drake 975, (2d) 43 S. W. l. c. cases cited.] fully We think up the evidence in the instant case measures argued While, by respondents, rules above indicated. as this findings court will defer upon somewhat to the of the chancellor con flicting his opportunity oral evidence because of to see and hear charged making witnesses, yet duty of our own we are with the
finding is no con- equity in an case. There substantial facts Galloway Miss testimony except Mrs. flict in the as between wife may parties, be Both be said to interested one the Matthews. They claiming adverse interest the land. appellant, the other an from Mrs. dispute each other as to former received relating claims she papers appellant’s status and when she Galloway clear Mrs. or husband received them. But it is her Waugh, papers have those from Mr. or Mrs. must received either produced them papers because Exhibit church were intimately all papers trial. related and were The kept naturally preserved a character would be such Galloway. The together. The tend to corroborate circumstances they had simply testimony respondents’ other witnesses Galloway. by any called than Re- heard other name spondents all of witnesses who assert that testified way-Waugh prevaricated, he had been known as Gallo or testimony Galloway Huff. shown certain of Mrs. and Mrs. Sarah *13 testimony find of those nor the We do not in the ladies elsewhere in charge. Moreover, fact that sweeping record a basis for the definitely changed signifi- great name was is no appellant’s not of Waughs given explanation view reasonable for cance in the having changed Change necessary not it. of name of child is the not 924, v. 223 S. W. 930 (Mo.), to Jackson adoption. (6).] [Craddock any made the We attempt impeach There no of witnesses. was to ab- carefully the as in appellant’s have evidence set out examined abstract, respondents’ by supplemental also shown stract and as by forth, all they say they questions answers, have wherein set bearing credibility In our the witnesses. thе evidence on the of judgment nothing veracity lack on the there is therein to show of part testimony. appellant or to their That of witnesses discredit Waughs by though treated he had been child was as their own by he is is there room for doubt that evidence, shown all the nor discharged child faithfully a his foster well and duties of to by testimony parents. It is which also shown we do not doubt Waugh son, repeatedly Mrs. him as their Mr. and referred to Waugh him, that Mr. that he so introduced had Waugh him. Mrs. in effect also so stated. argue existed
Respondents relations shown to have rendering Waughs, living with appellant and between him, their referable services to them and care and nurture are Society, 4, Home to with the Exhibit contract Children’s Grаnting argument’s adoption for they is an contract. contend not adoption contract nor not an evidence sake that said contract rest appellant’s case not and need not agreement adopt, does an testify. upon Appellant We permitted that instrument. was not must testimony look to the all the for of others and to circumstances acts, the facts. In addition statements and conduct 'of Waughs to, very above referred we are not convinced time long Waugh after had been taken into the home Mr. and Mrs. executed the instrument referred to in the evidence adoption. indicating instrument, deed That some such not only an an attempt adopt appellant legally, intention but doubted, Mr. executed and Mrs. be cannot unless we dis- subject. believe all of the Five witnesses who testified on that tes- McDonald, tified to seen paper: lawyer, and read that —Mr. case, Donnelly, in interested this Mrs. not interested nor related appellant, Galloway’s wife mother-in-law and Mrs. aunt, Whaley. Mrs. The cross-examination .of those witnesses de- veloped no inherent weakness or indication of falsehood their testimony they impeached. were not given statutory
The instrument cannot referred to be effect as a adoption deed of because county not recorded of the makers’ required by residence, 968, R. the statute then force. S. [Sec. evidentiary But it can and does have value. In Kerr v. 1889.] Smiley (Mo.), 501, 239 S. W. an it was held that instrument in the adoption statutory nature of a deed ineffective adoption but as a proper county, evidentiary because not pre- recorded of a agreement parol adopt. also, vious Dillmann v. Davidson [See, (Mo.), (1, S. W. 505 case In this we think the execution 2).] strong adoption significance. of the so-called deed of has Mr. and right already custody had obtained to the and serv- age twenty-one years ices until he should become Society. contract, Exhibit Children’s Home If intended, why they that was all exe- did thereafter wanted *14 attempting adopt him as their son and cute other instrument to heir ? agreement
Respondents say
adopt,
enforce
that an
to
to be
citing
consideration,
in equity,
able
must be based on a substantial
Lynn Hockaday,
111,
could be on part.
After careful consideration of the evidence we are constrained to finding wrong hold that the and decree circuit court are of the appellant. should have been for the
There fact is another that should be in order noticed judgment proper may appears- pleadings be entered. It from the Waugh’s during the administration estate demands were against filed and allowed estate in excess said value personalty that, prevent in order to sale of the real estate for payment protect of such demands and to the interests the own ers, Ahern, plaintiff, paid advanced over to the administrator $6536.10, plaintiff which was so used and for which asks reimburse with ment interest from date of such advancement and that a lien adjudged on the land be in his favor for him. Ap the amount due pellant plaintiff in his answer admits that made such advancement protect estate,” “to said and is reimbursement entitled to and a lien just on the land. That is should and it be so decreed. appears plaintiff’s petition
It from and from certain admissions may made at the trial that there is an or be undivided interest part petition of the lands described which did not descend Waugh Mary Josephine Waugh, from either Charles Stewart or never by them, been owned either of and which therefore would not belong adopted question as son. That was not adjudicated tried or trial on this and the facts relative thereto are fully developed in attempt We record. shall not to deter- hearing mine it but leave it for and determination the circuit court. judgment the reasons stated
For of the circuit court is re- remanded, versed and the cause is with directions said court to judgment entered; adjudg- set aside its heretofore to enter a decree ing appellant, Galloway, Andrew Burton to be son legal Mary Josephine Waugh heir of Charles Stewart and of such and as the owner lands and interests therein described petition which descended from said Charles Stеwart Mary Josephine them; plaintiff, or either Albert to award (cid:127) judgment M. Ahern, against portions and interests of the land belonging petition described in the to said as such son heir, judgment against personal appellant, but not as a for said $6536.10, sum interest, computed court, be six per per February 6, 1931, annum from the date cent money is admitted to have been the amount advanced, so determined paid to be within such such time and on conditions the circuit *15 fix, adjudge and shall court shall determine and to declare and same interests; to be lien proceed, lands opinion, in accordance this with the all un- determination BoihUng, judicated Westhups C’C., ad issues the case. concur. foregoing opinion by Cooley, C., PER CURIAM: —The opinion judges of the court. concur. All Joseph Dempsey, Appellant, M. Horton and Western Union v. G. Telegraph Company, Corporation. S. W. (2d) 621. Two, July 11, 1935.
Division