Blair v. Blair

| Mo. | Dec 24, 1912

GRAVES, P. J.

Action hy plaintiff to divest defendant of the record title to 100 acres of land in Pike ■county, in value at the present time of $5000' to $6000. Petition in three counts. The first count avers that the plaintiff paid for the land in question with his own funds, and seeks to have a resulting trust declared. By the second count an express agreement is alleged hy the terms of which it is stated that the defendant took the title agreeing to hold the same for the use and benefit of the plaintiff. By the third count a receiver is asked for the property.

In appropriate answer the defendant joined issue on all the matters averred in plaintiff’s petition, and as a further defense invoked the ten-year Statute of Limitations. Defendant also answered to the. effect that the purchase price of the land in question was paid out of her individual and separate funds, and that she was in fact and in law the legal owner thereof.

By reply the plaintiff pleaded that there had been an adjudication of the fact as to whose money was used in the payment for the farm in the case of Blair v. Blair, 131 Mo. App. 571" court="Mo. Ct. App." date_filed="1908-05-12" href="https://app.midpage.ai/document/blair-v-blair-8264857?utm_source=webapp" opinion_id="8264857">131 Mo. App. 571. A reading of that case will thrown some side light upon the present, and obviate a lengthy detail of many things in this ease. Upon a hearing nisi the chancellor found against the plaintiff and dismissed his bill, from which judgment of dismissal and costs, he has appealed. There are but two real questions in the case:

(a) Is the plea of former adjudication good?

(b) . "Whose money paid for this land?

Of these in their order.

I. The question of res adjudicata in this case is thus situated. In 1905 the defendant in this case, Annie E. Blair, sued the plaintiff in the present suit, Joseph H. Blair, for divorce, and as an incident thereto asked for alimony. In July, 1906, the circuit court of Pike county heard this divorce proceeding, and entered its decree granting to Annie E. Blair a divorce from Joseph H. Blair, and also giving her alimony in gross in the sum of $2200 and fifteen dollars per month for the support and maintenance of two minor children. From this decree Mr. Blair appealed to the St. Louis Court of Appeals, and in that court the alimony in gross was, for reasons in the opinion stated, reduced to $1000, and with this modification affirmed. Appellant ’s idea of res adjudicata seems to spring from a certain state of the record in the divorce suit. In the petition for divorce, evidently inserted on the idea of giving the court a basis for fixing alimony, Annie E. Blair used this language: “Plaintiff states that her property consists of the residence property in Bov/ling Green, and one hundred acres of farm land, and with that exception she is without means of support for herself and family and without the means for the prosecution of this suit.” It should be noted that no land is described, and the court is not asked to make any decree as to the land. Turning to Mr. Blair’s answer in the divorce suit we find this language: “He further admits that the legal title to the farm mentioned in said petition is in the plaintiff, but defendant denies that she owns the same or any interest therein, and says that the defendant is the owner of the equitable . title to same.” It should be noted that he describes no land and does not ask the court to enter a decree with reference thereto. Mrs. Blair in the divorce suit replied to the answer, and in the course of such reply used this language: “Now comes the plaintiff in the above entitled cause, and for reply to defendant’s answer herein denies each and every allegation of new matter in said answer contained, except those hereinafter admitted to be true.”

Thus stand the portions of the pleadings in the divorce suit relied upon by the plaintiff in the case at bar. His present abstract of record contains this excerpt from the judgment nisi in the divorce suit:

“ The judgment of the Pike county court in said cause, rendered July 2, 1906, which granted plaintiff in said cause a divorce, alimony and support for the minor children, and in relation to the real estate mentioned in said pleadings found the facts to be as follows: That at the date of the institution of the suit plaintiff’s residence was, and for many years prior thereto; had been in the west portion of Bowling Green, and since the year 1880, in the property owned by the plaintiff in her own right, the title to the same standing and being in plaintiff. And just prior to said separation defendant demanded that plaintiff deed to him a certain farm the legal title to which was in plaintiff, and which plaintiff claimed to own in fee as her own property,

“The motion for a new trial in said cause, filed July 5, 1906, and record showing that it was overruled by the court July 13,1906.

“The mandate of the St. Louis Court of Appeals in said cause, and read in evidence that portion of said court’s judgment and decree as to alimony, and the findings of the facts by said court npon which said decree was based, which is as follows.” ■

Snch abstract also contains the following excerpt from the opinion of the St. Lonis Oonrt of Appeals in the divorce case:

“We take up the question of alimony. Whether or not the court’s allowance is reasonable is to be determined on consideration primarily of the property and earning capacity of the defendant, but with reference, too, to the means owned by his wife in her own right, and particularly that portion of her means which had been given to her by him. [Grolding v. Golding, 74 Mo. 123" court="Mo." date_filed="1881-10-15" href="https://app.midpage.ai/document/golding-v-golding-8006855?utm_source=webapp" opinion_id="8006855">74 Mo. 123; 2 Am. & Eng. Ency. Law (2 Ed.) pp. 120 to 123 and citations in notes.] Defendant had invested, say, $3500' of his means in the home place, and the title to which was in his wife. He had also invested the same sum in a farm in the county, which was in her name; that is to say had furnished $7000; if not more, to acquire the properties to which she holds title. Besides this she has some household furniture, cows, and a little money. We estimate his own pos- . sessions as follows: A half interest in three buildings, $900; two-thirds interest in abstract books, $3000; law library, $300; four horses, $300; one note, $260; cash, $800; other personal property, $200; total, $5760'. Such is our maximum valuation of his holdings after careful attention to the testimony bearing on the question. The defendant is fifty-eight years old, utterly broken in health, unable to practice his profession, and the income from the abstract business is very small. In fact, the testimony is that for three or four years past the income has not been enough to pay the expenses of keeping them up — had not been quite four hundred dollars per annum. Defendant is manifestly near the end of his earning capacity and to pay a judgment of $2200 and then fifteen dollars a month for the support of the minor children, will probably be beyond his power. To compel him to raise such a sum will reduce Mm, in our opinion, to absolute penury. Considering tbe property belonging to plaintiff wMch be paid for, it looks too 'harsh to force a payment out of bis present means of $2200'. Tbe allowance of fifteen dollars a month for tbe two minor children is reasonable. It is to be remarked that these children, as well as tbe older ones, were left some means by a relative. Tbe decree will be modified so as to allow plaintiff $1000 in gross and with this modification wifi be affirmed. ’ ’

All those matters were introduced in evidence upon tbe trial of tbe present case in the circuit court, and they furnish tbe basis for tbe claim of res ad judi-cata. We need not discuss tbe question as to whether or not a decree in a divorce proceeding can adjudicate tbe title to land. It is clear from this record that tbe question of tbe title to land was not placed at issue in tbe divorce proceeding. Ownership of land may have been considered in tbe mere incidental matter of alimony, but not in the sense of determining either tbe legal or equitable title thereto. Nor does tbe judgment in tbe divorce ease make any attempt at tbe adjudication of title to the land here in dispute. It is a simple judgment for divorce and alimony. It is, therefore, clear that the decree in tbe divorce case did not undertake to adjudicate tbe rights of either party to the one hundred acres of land incidentally mentioned in tbe pleadings therein. Whether it was tbe land involved in tbe present ease is somewhat a matter of speculation, but however that be, it is clear that neither tbe circuit court nor tbe Court of Appeals undertook to adjudicate land titles, and did not adjudicate land titles.

Plaintiff urges, however, that there is an adjudication of tbe fact that bis money paid for tbe one hundred acres of land mentioned incidentally in tbe divorce case, and that by such adjudication of that fact tbe defendant in tMs case is bound. It may be granted, without deciding the point, that such is the law, yet it would not avail the plaintiff here. The real issue in the divorce case was not tied up with the question of alimony, either temporary or permanent. Alimony is largely incidental to the case, and because the trial court incidentally investigated the property holdings of each party in order to be enlightened upon the question as to what allowance should be made in the way of alimony, it should not be said that the court’s conclusion as to who owns or claims a certain tract of land, should be considered as res adjudicata in a proeeding where that question is one of vital importance, and one going to the very merit of the controversy. So that we say that although it be conceded (a question we do not at this point decide) that under proper issues a decided question of fact may be res adjudicata as to the fact found, yet such rule would have no application in the case at bar. A fact found to be conclusive upon the parties must be a fact “directly in issue’■ in the case decided, and one within the purview of the issues made in such case. [24 Am. & Eng. Ency. Law (2 Ed.), p. 765].

It is clear from the issues stated in the divorce proceeding that the parties were not seriously and forever attempting to settle the fact as to who had paid for the one hundred acres of land incidentally mentioned. As we are impressed, there is nothing in the question of res adjudicata, and that point is therefore ruled against the plaintiff.

II. Reverting now to the fact as to whose money went into this land. Upon this question the evidence is in hopeless conflict as to a. part of the money. As to the major part there is but little dispute that it was Mrs. Blair’s money. Mr. Blair admits this, but says that his wife agreed to let him have this money, because he had paid for the home place which was deeded to her. This Mrs. Blair denies. Mrs. Blair received in all some $8000 from several estates of deceased relatives. Most of it came to her hands prior to the purchase of this land. The trial court was amply justified in finding that all the money came from Mrs. Blair, and we are impressed that the weight of the evidence so shows. At least the trial court had the benefit of seeing and hearing both the parties upon this vital point, and we will yield to his judgment upon the question of credibility. If Mrs. Blair paid the money, her title should not be disturbed, and other ■ questions suggested in the brief can well be omitted. Let the judgment be affirmed. All concur.