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defend said cause, and in procuring deposi- | against said Fanny and defendants, her chil

tions and witnesses from many parts of the country; that on the 18th day of March, 1889, said cause was called for trial, and defendants again dismissed said cause without a trial; that the defendants threaten to again sue plaintiff for possession of said lands, unless he will make to them what they call a "fair proposition" to buy from them a quitclaim of their alleged rights in and to said lands; that defendants mean thereby that plaintiff must either consent to pay them a large sum of money for their worthless deed to said land, or they will continue to harass him with vexatious and inconsequent litigation, such as the two cases which they have already brought and dismissed, as above set forth. And plaintiff avers that the sole claim of defendants to any right, title, or interest in said lands arises from the facts, to wit: That, on or about the year 1835, their mother, the said Fanny Russell, eloped from Lee county, Va., with the said Henry Miller, deceased, and with said Henry Miller came upon these lands, and there lived as the mistress and housekeeper of said Henry Miller until his death in 1858, as aforesaid, and defendants claim to be the children of the illegitimate and adulterous commerce between said Henry Miller and said Fanny Russell during the time they so lived together on said lands. Their claim is entirely grounded on their assertion that they are the lawful heirs of said Henry Miller by reason of said illegitimate and adulterous intercourse of their said mother, Fanny Russell, with said Henry Miller. Plaintiff states that Elizabeth Miller, the true and lawful wife of the said Henry Miller, deceased, was married to said Henry Miller in Ashe county, N. C., in the year 1818 or 1819, by a magistrate named Andrew McMillan, or McMillen; that she lived with said Henry Miller as his acknowledged wife from that time until he eloped as aforesaid with said Fanny Russell; that she bore him the said children through whom plaintiff claims his title to said lands; and that she survived said Henry Miller several years, and died in 1863. And plaintiff avers that said Fanny Russell is also dead, and avers that said Fanny was not and did not claim to be the lawful wedded wife of said Henry Miller, but that she, on the contrary, by her true name of Fanny Russell, after the death of said Henry Miller, filed against his estate her account and claim for the sum of $4,263.28 as a balance due her from said estate, her said account being charges for animals, for money loaned, for money used by said Henry, for interest thereon, and for 19 years' services as housekeeper $1,500; that said account was presented by her to the probate court of Jackson county, at Independence, Mo., through her attorneys, Jones & Pittman, and was filed December 19, 1860, but that no allowance was made thereon; that in said suit in ejectment, No. 7,380, filed by Hiram Miller and others v.27s.w.no.4-23

dren, in 1867, she was sued and judgment went against her as Fanny Russell; that in said cause No. 7,380 the sole issue tried was the legitimacy of said Hiram, Henry C., James W., and John D. Miller, and Ann Collin, and that said issue was settled against said defendants and their mother, Fanny Russell, and in favor of said children of Henry and Elizabeth Miller; that in said case said Hiram Miller had procured the deposition of said Andrew McMillan, the magistrate who married said Henry and Elizabeth Miller in 1818 or 1819, as aforesaid, and had procured numerous other depositions, conclusively establishing the fact of such marriage; that all these depositions, with the other papers in the case No. 7,380, were on file in the office of the circuit court at Independence until shortly before defendants brought their first suit in ejectment against plaintiff, as herein before mentioned, but, shortly prior to the bringing of that suit, all the papers in said case No. 7,380 disappeared from said clerk's office, and neither plaintiff, nor the clerks of said court, nor plaintiff's attorneys have been able to find them, after diligent search. And plaintiff avers that in 1819, in North Carolina, no records of marriages were kept; that Andrew McMillan is dead; that all the witnesses of said marriage of Henry and Elizabeth Miller are dead; that the witnesses of their family relations, and of the fact that said Henry Miller publicly lived with said Elizabeth and raised said family as his legitimate and acknowledged family, are all old, and many of them dead, as are also many of those who knew of and can testify to the elopement of said Fanny Russell with Henry Miller; that said testimony, already reduced largely in volume, will soon be altogether lost; that the expense of getting together such testimony becomes greater with each succeeding year. And plaintiff avers that by their suits brought and dismissed in the vexatious and harassing manner before mentioned, and the suspicion thereby engendered, the defendants have succeeded in casting a cloud upon the title of plaintiff, and have made it difficult to sell the land, and made it less valuable as a security for borrowing money, and have depreciated its market value. And plaintiff avers that defendants still threaten to further sue and annoy plaintiff with their aforesaid baseless and groundless action and claim of title, and to further involve him in expense, and to further shake public confidence in his title thereby, for all which injuries plaintiff has no sufficient or adequate remedy at law, and none at all unless this court, sitting as a court of equity, shall by its judg ment and decree afford him relief. Wherefore plaintiff prays judgment that the defendants be forever barred and estopped and enjoined from holding any title, right, or claim in or to said lands on the ground that they are the lawful heirs of Henry Miller, de

ceased; that they be prohibited and enjoined from instituting or prosecuting any further suit against plaintiff, or his grantees of said land, as such heirs; and that the title of plaintiff be quieted in this respect; and for any further and additional relief as this court, by the exercise of its equity powers, can give.

At the same time, plaintiff filed the following affidavit of nonresidence: "State of Missouri, County of Jackson-ss.: Milton Campbell, being duly sworn, on his oath says that Martha A. Witcher and Tandy K. Witcher, Fanny Feltenbarger, and Jacob Feltenbarger are nonresidents of the state of Missouri, and reside in the state of Kansas. Milton Campbell. Subscribed and sworn to before me by Milton Campbell, this 12th day of April, 1889. L. F. McCoy, Clerk. D. M. McClanahan, D. C." Indorsed, omitting title of cause: "Filed March 21st, 1889. L. F. McCoy, Clerk. D. M. McClanahan, D. C." Personal service was duly made on the defendants Henry Miller, George W. Miller, Eliza J. Reed, and Jasper Reed in Jackson county, and a non est return as to the others. At the April term, 1889, proof of service in Johnson county, Kan., by delivering a copy of the summons and petition to each, was made as to defendants Martha and Tandy Witcher, Fanny and Jacob Feltenbarger, as required by law in such cases, and default noted as to all of said defendants.

*

Afterwards, at the October term, 1889, the following decree was rendered in said cause October 28, 1889, omitting style of case: "Now, at this day, comes plaintiff by his attorney, but defendants, although lawfully summoned, come not, have filed no answer or neither pleadings in this case, and are in default; and it appearing in the petition that plaintiffs have been continuously since March 4, 1872, in the adverse possession and ownership of the following described land in Jackson county, Missouri: That plaintiff, by virtue of certain deeds mentioned in the petition, on March 4, 1872, came into ownership of all the title of Hiram Miller and Ann Weatherby in and to said lands, also Henry C. Miller, James W. Miller, and John D. Miller, and then took possession thereof. That said Hiram J. Miller, Henry C. Miller, James W. Miller, and John D. Miller, and Ann Weatherby were the lawful children and sole legal heirs of Henry Miller and Elizabeth Miller, his wife, who are both dead. That said Henry Miller died intestate in the year 1858, and was then in possession and entitled to said lands. That said Elizabeth Miller died in the year 1863. That about the year 1835 the said Henry Miller abandoned his said wife, and eloped with Fannie Russell, and purchased and came into possession of the land aforesaid, and there lived with said Fannie Russell, and kept her as his mistress and housekeeper, until his death, in 1858. That Eliza J. Reed, Martha A. Witcher, Fannie Feltenbarger, Henry Mil

ler, and George Miller were the illegitimate children of said Henry Miller and Fannie Russell. That Jasper Reed is the husband to Eliza J. Reed, that Tandy K. Witcher is husband to Martha Witcher, and Jacob Feltenbarger is husband to Fanny Feltenbarger. That said defendants, with their mother, Fannie Russell, were sued in ejectment for the possession of said land in 1867, at Independence, Missouri, by said Hiram Miller, Henry C. Miller, James W. Miller, John D. Miller, and Ann Weatherby, and on a trial therein, wherein the sole issue was the legitimacy of the last-named persons, a judgment of ejectment was on September 30, 1869, rendered against said defendants, and in favor of said plaintiffs, and said Hiram Miller, James W. Miller, John D. Miller, and Ann Weatherby were on such judgment put in possession of said property. That said defendants never made any pretense of claim to said land from the time the plaintiff bought and took possession thereof, as aforesaid, until the 22d day of September, 1887, when they sued plaintiffs in ejectment, claiming title thereto. That said suit was brought in the circuit court of Jackson county, at Kansas City, Missouri, and was numbered 10,606, and, after the plaintiff had been put to heavy expense preparing for trial to defend the same, the defendant, on the day of trial, dismissed the suit. That on the 15th day of August, 1889, the defendants again sued the plaintiffs in ejectment in the circuit court of Jackson county, Missouri, at Independence, in case numbered 18,237, claiming said land. That defendants again, on the day set for hearing, dismissed their suit without trial. That the defendants threatened again to sue plaintiff for possession of said lands, unless he will make them what they call a fair proposition to buy from them a quitclaim deed of their alleged rights, title, or interest in or to said land. That the sole claim of the defendants to any right, title, or interest in said land arises from the foregoing fact, that they are the illegitimate children of Henry Miller and Fannie Russell; and their said suits are vexatious and harassing to plaintiff, and injurious and a cloud to his title, for which plaintiff has no remedy except by decree in equity: It is therefore ordered, adjudged, and decreed that defendants, and each of them, be forever barred. estopped, and enjoined from having or claiming, or pretending to have or claim, any right, title, or interest in or to said lands herein before described, or any part thereof, by virtue of their said alleged relationship to Henry Miller, deceased, or as heirs of Henry Miller, deceased; and that defendants, and each of them, be and they are enjoined and prohibited from instituting or prosecuting any further suit against plaintiff or his grantees of said lands, or any part thereof, on the ground that defendants are heirs or relatives of said Henry Miller, deceased, or as holding from him any interest therein, and that the

title of plaintiff, obtained as aforesaid, from the legal heirs of Henry Miller and Elizabeth Miller, be quieted and affirmed, and decreed a perpetual bar to defendants, and the plaintiff recover of defendants his costs in this behalf expended, and have therefor execution."

On the 23d day of March, 1892, the plaintiffs in error herein sued out a writ of error from this court, and duly notified the defendant in error, and assign the following errors: (1) The court erred in rendering a decree on the allegations of the petition, for the reason that plaintiffs in error had never prosecuted a suit in ejectment to verdict. (2) The court erred in rendering a decree against the married women, for the reason that they had not the right of possession or the power to sue for same. (3) The court erred in rendering the decree, for the reason that the allegations of the petition make it appear that plaintiffs in error have no claim which, if based on facts, would be valid in law.

Beardsley & Gregory, for plaintiffs in error. M. Campbell, for defendant in error.

GANTT, P. J. (after stating the facts). As every allegation in the bill stands confessed for the purposes of this hearing, we have this case made. Henry Miller, the common and admitted source of title, died, seised and possessed of the lands in suit, about January 1, 1859, leaving his widow, Elizabeth Miller, and his children, Hiram, Henry C., James W., John D., and Anna Miller, as his only heirs at law. These heirs, in 1867, sued plaintiffs in error for this land, and on a jury trial, wherein the sole issue was the legitimacy of said heirs, had a verdict; defendant in error, in 1872, by deeds, obtained all the title of said heirs to said land, and has ever since been in actual possession thereof; for 18 years after said verdict, plaintiffs in error "never made any pretense of claim to the land." Plaintiffs in error only claim title by the assertion that they are the lawful heirs of Henry Miller, deceased, through his connection with their mother, Fanny Russell, which has been once, in a jury trial, decided against them. Their said mother repudiated their claim by filing her account and claim, in her own proper name of Fanny Russell, in the probate court of Jackson county, Mo., against the estate of Henry Miller, deceased; the connection through which they claim was "illegitimate and adulterous." The marriage of Henry Miller and Elizabeth Miller, through whom defendant in error claims, occurred in Ashe county, N. C., in 1818 or 1819, and the magistrate who married them, and all of the witnesses, are dead. The depositions taken at the trial in 1869, and used against plaintiffs in error in case No. 7,380 of the circuit court, to establish the legitimacy of the grantors of defendant in error, disappeared "shortly prior to the bringing of their suit," in 1887, to disturb this title. All other evidence of the relations of Henry Miller, deceased, has

been lost, or is about to be lost, by time; two vexatious and inconsequent suits were brought, and others threatened, by plaintiffs in error, and defendant in error is seriously damaged in his possession, and without other remedy. There are five distinct parties, each of whom may separately renew the litigation over this title whenever and as often as he sees fit, unless a court of equity has jurisdiction, under these circumstances, to entertain a bill to have the title finally tried and prevent a multiplicity of suits. It is true that one of the tests made by plaintiffs in error of a bill of peace does not exist, in that they have not twice been defeated on a final hearing in their ejectment suits; but, on the other hand, there has been a final judgment in ejectment in favor of Porter's grantors. By virtue of that judgment, he was placed in possession, and his possession remained unchallenged from 1872 until 1887, when this controversy was renewed. Since then two actions have been commenced by plaintiffs in error, only to be dismissed after all the costs had accrued, and Porter had announced ready for trial. When it appeared to defendant in error that he could not obtain a final decision on their suits, he took the initiative by instituting a suit they could not dismiss. They suffered him to proceed to final judgment without objection, and permitted the judgment to remain unchallenged until this writ of error was sued out. As two of the plaintiffs in error labor under the disability of coverture, the limitation does not bar them, and this title may be clouded for years to come. The defendant in error is in possession, and is without remedy unless a court of chancery can prevent such vexatious litigation.

When the title has been fairly tried in a court of competent jurisdiction, and the possession taken thereunder, and held in peace for many years, and then is challenged by a large number, all claiming under a common title, it would be inequitable and unjust to compel the party in possession to litigate with all these claimants separately. The jurisdiction is established by the great weight of Lord Hardwicke in Tenham v. Herbert, 2 Atk. 483, and by Lord Chief Baron Gilbert, Forum Romanum, 195, and since maintained in England and America. We have no question about the sufficiency of the bill, and no doubt about the jurisdiction in chancery to bind the married women who are plaintiffs in error. Their claim that they are not in default, because under coverture, il comports with the fact that they have already brought two suits, and threaten others, and strengthens the ground for equitable jurisdiction because of their disability. The question is, are they proper defendants in equity to restrain them from a multiplicity of actions? And of this we have no doubt. Staley v. Ivory, 65 Mo. 74; Pratt v. Eaton, Id. 157; Morrison v. Thistle, 67 Mo. 596; Clark v. Rynex, 53 Mo. 380.

The final assignment is without merit. It is this, that, if plaintiff's petition be true, then the claim of defendants below, plain- | tiffs in error here, would constitute no cloud on the title of the plaintiff. Plaintiffs in error claim that they are the lawful heirs at law of Henry Miller. If this were true, they have a valid right to these lands. The petition controverts their claim, and states the disproving facts. Certainly, if plaintiffs in error admit that they are not the heirs of Henry Miller, they can urge no reason why they should longer harass the defendant in error in his possession and ownership, as that is their sole claim.

We think the circuit court had complete jurisdiction over the subject-matter and the plaintiffs in error, and that the petition stated a strong case for the interference of a chancellor, and, no error appearing in the record, the judgment of the circuit court is affirmed.

BURGESS and SHERWOOD, JJ., concur.

SAPPINGTON et al. v. SAPPINGTON SCHOOL FUND TRUSTEES et al. (Supreme Court of Missouri, Division No. 2. June 12, 1894.)

CHARITIES-BEQUESTS TO EDUCATE POOR CHIL

DREN.

Testator left a fund in trust, the income to be spent "in the education of the most necessitous poor children" in the county; but if at any time the public funds should become sufficient to educate all the poor children of the county, then the income to be otherwise applied. It appeared that all the funds provided by law for the county for the past year maintained the school for less than seven months; that the seating capacity of the schools was less by over 2,000 than the number of children of school age; that the deficit for the year was some $600. Held, that the contingency had not occurred.

Appeal from circuit court, Saline county; Richard Field, Judge.

Bill in equity by Erasmus D. Sappington and others against the Sappington School Fund Trustees and others. Decree for defendants. Complainants appeal. Affirmed.

Equitable proceeding instituted by plaintiffs, as the heirs of John Sappington, who sought to have a certain fund in the hands of the defendant trustees brought into court, an accounting had, and a decree made declaring that the trust hereinafter more particularly mentioned has ceased and determined, and ordering that the fund, with its accumulations, be distributed among said

heirs.

Dr. John Sappington, a prominent and wealthy citizen of Saline county, on October 24, 1853, executed a trust deed whereby he transferred to Claiborne F. Jackson, and eight other designated citizens of Saline county, the sum of $10,519.46, in trust for the purpose of contributing to the education of the poor children of Saline county, in the man

ner prescribed in said intrument. The deed aforesaid provided, in such behalf, that: "Said sum of money is to be kept at interest perpetually by the aforesaid trustees, and the interest accruing therefrom is to be annually expended by them in the education of the most necessitous poor children in the county of Saline aforesaid," and further provided that "said trustees are authorized and requested to organize themselves into a board of trustees, to appoint a chairman, secretary, and treasurer, to hold meetings at least once in every year at the town of Marshall, or such other place in the county aforesaid as may by them be deemed best, to select the most needy children for education through the county, to keep a regular record of all their acts, subject to the inspection of all persons whatsoever; such record to contain the name and age of each scholar, and the amount of money annually expended upon each scholar, and also the whole amount expended upon every scholar, to be kept in tabular form." Said deed also provided: "In the event that at any time hereafter the common-school fund, and other educational funds which may be provided by the state, or which may come into the possession of the state from any source whatever, for the purpose of education, shall become sufficient to educate all the poor children of said county, then and in that case the said board of trustees are hereby authorized and requested to apply the interest of said fund to such other objects of charity in said county as in their judgment may be most needy, but in no case nor for any purpose is any part of the principal of said fund to be used or diminished." At the same time, and on the same day, October 24, 1853, Dr. Sappington also made and executed in due form his last will and testament, which, among other things, provided as follows: "I will that my executors shall, so soon after my death as they may be able to do it, pay over to the trustees that I have this day appointed in an instrument of writing which I have made, and in which instrument I have set apart the sum of $10,519.56 for the purpose of educating the most necessitous poor children in the county of Saline, the further sum of money which, together with the sum this day handed over to the said trustees, shall make the sum of $20,000; and the said trustees herein referred to are to manage the said fund placed in their hands precisely in the same manner, and apply the interest on the same to the purpose, as specified in the aforementioned instrument of writing." Dr. Sappington died on October 7, 1856, and his will was duly probated and his estate finally settled in the probate court of Saline county. The executors paid over to the above-named trustees said sum of $10,519.56, in accordance with the terms of the will, and said trustees thus became possessed of the sum of $20,000, which sum they invested at interest, and applied the annual income to the education of

the poor and necessitous children of Saline county, in accordance with the terms of the trust. Afterwards, to wit, March 19, 1861, said trustees obtained from the legislature of Missouri a substantial act of incorporation, which is as follows: "Whereas, Dr. John Sappington, late of the county of Saline, state of Missouri, bequeathed by last will and testament (now of record in said county of Saline) a certain sum of money to certain trustees, named in said will, and to their successors in office, which said fund was to be loaned at interest by said trustees, and the interest arising from said fund to be appropriated annually by said trustees to the education of the poor and necessitous children of said county of Saline; and whereas, in order the better to enable said trustees to carry into effect the trust contided to their hands, they desire an act of incorporation to be passed for that purpose; therefore, be it enacted by the general assembly of the state of Missouri as follows: Section 1. John W. Bryant, M. M. Marmaduke, A. W. Davison, Wm. Price, Ossamus Hurt, W. B. Sappington, R. E. McDaniel, C. F. Jackson, W. J. Brown, and M. L. Laughlin and their successors and assigns, are hereby incorporated as "The Sappington School Fund Trustees,' and as such are hereby created a body corporate and politic, and shall have continual succession, for the purpose of loaning out said school fund, and appropriating the interest annually accruing on the same to the education of the poor and necessitous children of said county of Saline, in the manner and mode prescribed in the will of the late John Sappington, of said county; and to do and perform all other matters touching the management of said fund as provided in said will; and by that name may sue and be sued," etc.

The petition sets forth all of the foregoing facts; avers that plaintiffs are the heirs at law of said Dr. Sappington; and concludes with the following allegation: "From and after the date of incorporation, the Sappington School Fund Trustees continued to apply said annual income in the same manner and for the same purpose, so long as there was any occasion or opportunity for so doing; but plaintiffs aver that the common-school fund, and other educational funds provided by the state, and which had come into its possession for the purpose of education since the creation of said trust, and set apart for the use of Saline county for establishing and maintaining free public schools therein, were sufficient to educate all the poor children in said county, thereby rendering it unnecessary, and, in fact, impracticable, to apply any portion of the annual income from said Sappington school fund for the maintenance of such schools, or the education of children in attendance upon same; that, the said common-school fund having thus become sufficient to educate all children of said county, such trust, according to the terms and conditions of the instrument creating the same,

as above set forth, has ceased and determined; that the further provision expressed in said instrument purporting, in such event, to authorize said trustees 'to apply the interest of said fund to such other objects of charity in said county as, in their judgment, may be most needed,' is so general and indefinite as to be incapable of being enforced, and is void for indefiniteness; that by reason of the premises the right and title to said trust fund, with its accumulations, reverted to the heirs at law of the said John Sappington, deceased. Wherefore, in consideration of the premises, plaintiffs pray that the court may decree that said trust has ceased and determined, and that defendants, the Sappington School Fund Trustees, be required to render an account of said trust, and bring the fund into court to be paid to the heirs at law and distributees of said John Sappington, parties to this action, according to their respective interests, to be ascertained and determined by the court, and for such other and further relief as may be just and proper." Defendants' answer denied specifically all the averments contained in the above-recited paragraph of the petition, but admitted all the allegations of the petition as to the creation, organization, and management of said trust, the death of Dr. Sappington, and the heirship of plaintiffs.

At the close of the evidence, the court below entered the following finding and decree, to wit: "Now, on this 28th day of June, A. D. 1892, this cause having come on to be heard upon the petition, answer, and reply, and the proofs taken therein having been argued by counsel for the respective parties, and the court having duly considered the same, and having been requested by the attorneys for the plaintiffs to state in writing its conclusion of facts in the cause, the court in writing states its finding therein, as follows: Having been requested by the attorneys for plaintiffs to state in writing my conclusion of facts in this cause, I find that the following allegation in plaintiffs' petition: "That the common-school fund, and other educational funds provided by the state, and which had come into its possession for the purpose of education since the creation of said trust, and set apart for the use of Salinecounty, for establishing and maintaining free public schools therein, were sufficient to educate all the poor children of said county, thereby rendering it unnecessary, and, in fact, impracticable, to apply any portion of the annual income from the Sappington school fund for the maintenance of such schools, or the education of children in attendance upon the same,'-is not sustained by the evidence. The court finds that the authority given to said trustees 'to apply the interest of said fund to such other objects of charity in said county as, in their judgment, may be most needy,' is not so general and indefinite as to be incapable of being enforced, and is not void for indefiniteness.

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