250 Mo. 539 | Mo. | 1913
This is a suit for partition of land instituted March 25, 1909, by filing the following petition :
“Frank John Martin, Plaintiff, v. “Elizabeth Martin, Defendant.
“Plaintiff states that John Martin, Jr., died in the county of Cooper, State of Missouri, on or about the 25th day of October, 1908, seized of the north half of the southeast quarter of section twenty-one and the northwest quarter of the southwest quarter of section twenty-two, all in township forty-eight, range eighteen,*541 situated in said county of Cooper and State of Missouri.
“Plaintiff further states that John Martin, Jr., was the husband of the defendant, Elizabeth Martin; that said John Martin, Jr., was married to the defendant in Cooper county, Missouri, May 1, 1865; that the plaintiff is the son of the defendant; he was born June 14, 1864; that before the said John Martin, Jr., and defendant were married said John Martin, Jr., promised and agreed that if the defendant would marry him he would adopt her said child and would make him his heir, and in all manner and respect consider him and keep him as his lawful son, and if any child or children were born of said marriage that plaintiff should share with said child or children thereafter to be born the same as if plaintiff were the natural son of John Martin, Jr.; that after the marriage of the said John Martin, Jr., and the defendant, plaintiff’s name was changed from John Grillett to Prank John Martin, and the said John Martin, Jr., during his lifetime treated plaintiff as his child, introduced him and spoke to others of him as his son, and in all ways treated him as such; that plaintiff was led to believe by the said John Martin, Jr., and did believe that he was a natural son of the said John Martin, Jr., and did not know the contrary until he had grown to manhood; that said John Martin, Jr., called the plaintiff “son” and plaintiff called him “father;” that plaintiff lived with the said John Martin, Jr., in his home until he was over forty years of age, worked on the farm and helped accumulate and pay for whatever estate the said John Martin, Jr., had at the time of his death; that said John Martin, Jr., had no other child or children and left surviving only the plaintiff and defendant; that no other persons have interest in said land, and plaintiff Says that as the adopted, child of the said John Martin, Jr., he is .entitled to share in said real estate in all respects as if he were the natural son*542 of the said John Martin, Jr., deceased. Plaintiff says that he is entitled to an undivided one-half of said real estate and the defendant is entitled to the other undivided one-half thereof in fee simple; that the debts of the said John Martin, Jr.’s estate have been paid and no part of said real estate will be required to pay the debts of the said estate. •
“Plaintiff further states that Said land can be divided in kind between himself and the defendant.
“Plaintiff therefore prays that partition be made of said land according to the respective rights of the parties, and that if it be foqnd that partition cannot be made in kind that said land be sold and the proceeds appropriated according to the respective rights of the parties hereto, and for such other and further relief as to the court shall seem meet and just.”
Mrs. Schenk was afterward, on her own petition, made a defendant, and filed answer stating' that she was the only sister of John Martin, Jr., and his sole heir other than Elizabeth Martin the original defendant; so that the suit became a contest solely between her and the plaintiff.
The appellant, in her brief, admits that John Martin, Jr., died October 25, 1908, the owner of the land described in the petition, that the defendant Elizabeth Martin is the widow, and the defendant Kathryna Schenk his sister, and that the plaintiff is.the illegitimate son of the defendant Elizabeth Martin and was born June 14, 1864, and that his mother was married to John Martin, Jr., on May 1, 1865; so that plaintiff was then about ten and a half months old. It is not questioned that the plaintiff lived with his mother and her husband, working on the farm, until he was forty-two years old, when he married and settled near them. He was always known by the name of Martin, and John Martin, Jr., treated him as and called him his son and the evidence shows that he talked freely with the neighbors about his position in the family. Mr.
Mrs. Pisher, Mr. Martin’s sister-in-law, who had lived with them eleven or twelve months when Prank was about three years old, said that Mr. Martin called him his own son and that hardly anybody knew to the contrary, that he often caressed him and showed affection for him. The witness left the neighborhood when Prank was eight or nine years old, staying away about eight years, then returned, and remained in the neighborhood ten or twelve years, - during which she visited the Martins, staying perhaps a whole week at a time. Prank was always introduced as Mr. Martin’s son — a child of the house. Many times he would take him up and caress him and say he was his own child.
Mr. Gerhardt, another neighbor, said that after Prank was twenty-one years old he heard that he was not Mr. Martin’s own son and asked the latter about it, and was told that he took him as'his son and that whenever he died all that he owned was Ms. He said “whatever we got is Prank’s after my death.”
- Mr. Roe lived in the neighborhood and knew the Martins. He had heard Mr. Martin speak frequently of Prank as his son, and heard him say that when Prank was a young man growing up, boylike he liked to have some times as well as other boys, and thought he was pretty closely confined at work sometimes. He
Barney Martin, a cousin of Mr. Martin, testified that Mr. Martin said that Frank was his son, and that he claimed him as such all the time.
The defendant introduced no evidence. The court found for plaintiff and determined that as heir of John Martin, Jr., he was entitled to share in the distribution of the estate as a child and that the defendant Kathryna Schenk had no interest in the land or any part thereof, and adjudged that the dower and homestead be set off to the defendant Mrs. Martin; that the remainder of the land be vested in the plaintiff; and appointed commissioners to make partition accordingly. This appeal is taken by Mrs. Schenk from the interlocutory judgment.
The defendant Mrs. Martin testified, but her testimony was afterwards excluded by the court on the ground that she was incompetent as a witness. In the light in which we view the testimony her statements were simply cumulative and neither added to nor detracted from its weight.
It has been necessary in the foregoing statement to set forth the p&tition in ¡iaec verba because the difficulties of the case depend upon its form and effect. Had it been drawn with reference to the facts in evidence these would have been eliminated. It appears with great distinctness, however, that the object of the proceeding is partition. The petition states that the plaintiff is entitled to an undivided one-half of the land and his mother to. the other undivided one-half in fee simple. Had the plaintiff seen fit to rest
As we would naturally expect under such circumstances, Mr. Martin having assumed the position of father to the child made no secret of the new relation. He delighted in talking about it. Conversations of which he made it a subject were related or referred to in evidence covering the entire forty years during which the family was together. Pie freely spoke of the promise to the mother. Among the remarks attributed to him in the testimony, were the statements that he wanted Frank to be his own son; that he married the mother with the understanding that he would adopt him and take him as his son; that Frank was his child and he considered him his son; that he took her child for his .own; that he took him as his son and that all that he (the father) owned was his when he died; it is all for Frank; he gets it anyhow when we are done with it; that Frank would get all he had when
The evidence in this case being of such a nature that it leaves no substantial doubt, in our minds, that at the time of the marriage of Mr. and Mrs. Martin it was agreed between them that in consideration of the marriage he would make her child his own, it was his duty to fulfill the obligation so assumed by doing all acts necessary to the accomplishment of that purpose to the fullest extent permitted by law. If it required the execution of a deed of adoption under the provisions of the statute to invest the plaintiff with all the rights of a legitimate child, which we will assume to be the case but find it unnecessary to decide, then it was his duty, in the performance of his obligation, tq execute such deed. Having failed to do so the court, in the exercise of its equitable jurisdiction should, as has been done in this case, enforce the rights growing out of such duty.
“Equity looks upon that as done which ought to have been done.” [1 Story’s Eq. Jur. (12 Ed.), sec. 648.] “All agreements are considered as performed which are made for a valuable consideration, in favor of persons entitled to insist on their performance. They are to be considered as done at the time when, according to the tenor .thereof, they ought to have been performed.” [Ibid.] This maxim has been correctly looked upon as the very foundation of all distinctly equitable property rights, of all equitable estates and interests both real and personal. [1 Pomeroy’s Eq. Jur., sec. 364.] It has been called “a fruitful maxim.” Its application to this case is well illustrated in Frederick v. Frederick, 1 P. Wms. 710. A man had contracted at the time of his marriage, to become a citizen of London, but died before he had done so by taking up his freedom. His widow brought suit for the
So in this case, Mr. Martin having agreed, for a valuable consideration, which has been fully performed, to adopt the plaintiff, that act will be taken in equity as having been done in time and manner contemplated in the agreement. We have carefully examined the cases cited by the appellant, and find nothing in them contrary to the conclusion here indicated.
It follows from what we have said that the judgment appealed from is right, and it is accordingly affirmed, and the cause remanded for further proceedings.
PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.