Fromholz v. McGahey

120 Ark. 216 | Ark. | 1915

Hart, J.

In 1909 Gertrude II. McGahey and Agatha Beisen instituted this action in the chancery court against Fred and Bernard Fromholz asking for a partition for certain lands in Lonoke County, which they claim that they with the defendants own as tenants in common. The defendants filed a cross-complaint against the plaintiff in which they disk for recovery of part of the proceeds of land in Nebraska which was sold by Gertrude H. McGahey. The facts 'are as follows:

In the year 1884 Fred W. Fromholz moved from Platte County, Nebraska, to Lonoke County, Arkansas, rand died 'there in June, 1891. Prior to his death he had acquired about five hundred .acres of 'land in Lonoke County and also owned two hundred lacres of land in Nebraska. He left surviving him his wife, Mlarie Fromholz, two daughters, Agatha Keisen, Gertrude MlcGahey, 'and three sons, Fred, Ewald .and Bernard Fromholz. The first three had become adults and left home before he moved to Lonoke County. , The last two children, Bernard iand Ewiaild, were living with their parents in Lonoke County at the time their father died.

By his will Fromholz devised to his wife his Nebraska land; to Ewald, 120 acres of land in Lonoke County, and to Bernard land Ewald 'the remainder of his land in Lonoke County. He also bequeathed to his wife and to his son, Ewald, certain personal property. He stated in his will that he had already made advancements to Ms three older children. Ewald died in Lonoke County in 1895.

Prior to his death, ihe conveyed Ms interest in the Lonoke County land to Ms brother, Bernhard. The widow lived with her son, Bernhard, in Lonoke County until 1901, when .she went to another State to reside with her daughter, Gertrude. In 1902 she conveyed, by deed, to ■her daughter, Gertrude H. McGahey, the lands in Nebraska Which her husband had devised to her. In 1903 she executed another deed conveying the land to her daughter, Gertrude. In the fall of 1904 a guardian was appointed for Marie Fromholz as an insane person, and suit was at once brought by Mm in the district court of Platte County, Nebraska, against Gertrude H. McGahey amid Agatha Eeisen. The object of the isnit was to set aside the two deeds executed by Marie Fromholz to Gertrude H. McGahey, conveying her two hundred acres of land in Platte 'County, Nebraska.

Marie Fromholz died in 1905. Fred and Bernhard Fromholz were substituted as plaintiffs. The allegations of the complaint were that Marie Fromholz iat the time she executed the deeds to her daughter, Gertrude H. Mc-Gahey, was mentally incompetent.to transact business and that the execution of the deeds was procured by the undue influence of her said daughter. An answer was filed iby the defendants denying the allegation of the plaintiffs. A great deal of testimony was taken by both sides. The court found for the defendants and the complaint of the plaintiffs was dismissed at their cost. The decree recites that the cause Came on for hearing on the 10th day of February, 1908, upon the amended and supplemental petition of the plaintiffs, upon 'answer of the defendants and upon the evidence.

(1) An appeal was taken to the Supreme Court of the State of Nebraska (by the plaintiffs and the appeal was dismissed iby the court. The object of the taction instituted by the plaintiffs against the defendants in the Lonoke Chancery Court in 1909, was for the partition of the lands in Lonoke County, the plaintiffs, Gertrude H. McGahey and Agatha Eeiseu, claiming to own ,an interest therein as heirs of their deceased brother, Ewald. As above stated, the 'defendants, Bernard and Fred Fromholz, filed a cross-complaint against the plaintiffs and asked for a recovery of a part of the proceeds of the Nebraska lands which had been sold by Gertrude H. McGahey. They sought to set aside the deeds from Marie Fromholz to Gertrude H. McGahey on account of the mental ineompetenoy of Marie Fromholz and the undue influence practiced upon her by Gertrude H. McGahey at the time the deeds were executed. An answer was filed to the cross-complaint in which Gertrude H. McGahey and Agatha Eeisen denied the allegation of the cross-complaint and also entered a plea of res ad judicata. The court sustained the plea of res adjudicata and dismissed the cross-complaint for want of equity. The cross-complainants have duly prosecuted an appeal to this court. The decree of the chancery court was correct. The issue to be determined in the Nebraska .suit was whether or not Marie Fromholz wais mentally incompetent at the time she executed the deeds to the Nebraska lands to her daughter, Gertrude H. McGahey, and whether or not said deeds were procured by undue influence exerted upon her by her siaid daughter. The same persons who instituted that action filed a cross-complaint in the present suit, and the issues in the two suits were identically the same. To maintain the plea of res adjudicata not only was a certified ¡copy of the judgment of the Nebraska district court introduced, but also a certified copy of the amended ¡and .supplemental complaint and answer were introduced. The plaintiffs prosecuted .an appeal to the Supreme Court of Nebraska ¡and the court dismissed 'their ¡appeal. The mandate of the Supreme Court was also introduced to ¡sustain the plea of res adjudicata in the present suit. So it will be seen that the complete record of the Nebraska suit was introduced to sustain the plea of res adjudicata in the present action. That is to say, a certified copy of the judgment in the Nebraska .suit, together with all the pleadings on which the judgment was founded were produced at the hearing in the present suit. It will be noted that the judgment in the Nebraska suit recited that thé cause was heard upon the amended and supplemental complaint, upon the answer, land upon the evidence. This was sufficient to ¡sustain the plea of res adjudicata. McCarthy v. Troll, 90 Ark. 199, and cases cited; Hallum v. Dickinson, 47 Ark. 120.

(2) After the cause had been submitted to the .chancellor and taken under ¡advisement by him, the defendants to the cross-complaint asked that they be permitted to introduce a certified copy of the answer in the Nebraska suit, winch was done. The action of the chancellor in this regard is assigned as error calling for a reversal of the decree. It was within the discretion of the chancellor to allow a certified copy of the answer in the Nebraska ■suit to be introduced and to set .aside tbe submission of tbe cansé for that purpose. It follows that the decree will be affirmed.