Hubbard v. Slavens

CourtUnited States State Supreme Court of Missouri
Citation117 S.W. 1104,218 Mo. 598
PartiesHUBBARD et al. v. SLAVENS et ux.
Decision Date25 February 1909

Appeal from Circuit Court, Ray County; J. W. Alexander, Judge.

Action by Joseph R. Hubbard and others against Luther C. Slavens and wife. Judgment for defendants, and plaintiffs appeal. Affirmed.

English & English, for appellants. L. H. Waters and L. C. Slavens, for respondents.

LAMM, P. J.

Plaintiffs, Joseph R. and Ellen L., as the only children of Chester Hubbard, deceased, and as remaindermen under his will, uniting with Ellen's husband, Horace B., sued defendants (husband and wife) in ejectment in the Jackson circuit court on October 26, 1905. Defendants answer by way of a general denial, by way of the 30-year statute of limitations, and by way of an equitable defense, upon which they ask affirmative, equitable relief. From a decree for defendants, plaintiffs appeal.

The bill of exceptions, containing no evidence, contents itself, first, with showing plaintiffs' motion to strike out parts of the equitable defense, the adverse ruling of the court thereon, and an exception saved; second, plaintiffs' motion to submit the cause to a jury, the adverse ruling of the court, and an exception; and, third, plaintiffs' motions for a new trial and in arrest, the adverse rulings thereon, and exceptions.

The abstract of the record proper shows the petition, the answer and copies of Exhibits A, B, C, and D, a demurrer to the second and third defenses, the order of the court overruling the demurrer, the order of the court overruling the motion to strike out, the reply, the decree, the affidavit for an appeal, the order allowing one, and the record entry showing that the bill of exceptions was settled, allowed, signed, and filed.

Points made seek some elaboration of the pleadings, viz.:

The petition charged that Chester Hubbard died in 1861, seised of certain real estate in Kansas City, Mo. (describing it); that he left a will probated in Iowa at the county of his domicile (also in Jackson county, Mo., in 1865); that by such will he devised to Mary R., his wife, all his real estate, with remainder over to plaintiffs, his children, share and share alike; that Mary R. died in January, 1900; and that her life estate fell in and said remaindermen became entitled to possession. Ouster is laid as of February 1, 1900.

Attending to the answer, it denies all allegations not expressly admitted true; admits possession; avers that the defendant, Luther C. has been the husband of the defendant, Sallie, for 45 years; avers that they are now, and they and those under whom they claim have been, in open, notorious, and continuous adverse possession under a claim and color of title for 48 years; that the title emanated from the government 70 years ago; that neither the said Chester in his lifetime nor the plaintiffs since his death have been in possession nor paid any taxes for said 48 years, nor have plaintiffs brought any action to recover said premises under Rev. St. 1899, § 4268 (Ann. St. 1906, p. 2342); wherefore, they pray judgment that the title of plaintiffs be adjudged barred, and that the title be vested by the court in the defendant Sallie.

By the third defense it is alleged plaintiffs are the children and only heirs at law of Chester Hubbard, who died July 21, 1861; that by will he left the real estate belonging to him to his wife for life and to his children in remainder; that plaintiffs claim the real estate in controversy as devisees or heirs, but that Chester was not seised of the premises at the time of his death, and, therefore, plaintiffs took nothing under the will either as remaindermen or heirs.

To this end, it sets forth elaborately, in many pages of print, facts constituting an equitable defense and upon which affirmative relief is predicated. For instance (summarizing): It alleges that on the 16th day of September, 1856, Chester and Mary R. Hubbard executed a power of attorney to one Summers authorizing him to collect all debts due them, and to lease and sell and convey any real estate belonging to them in Jackson county, Mo., and to execute and deliver deeds to purchasers, which said power of attorney was put of record one month later, and continued in full force and effect until Chester Hubbard's death; that shortly after its execution Hubbard moved to Keokuk, Iowa, where he resided until his death, in 1861.

(Note. It will aid in understanding the case to say, what will appear presently, that the land sued for was acquired by Hubbard after said power of attorney was executed, and that such fact creates the main basis of plaintiffs' claim.)

The answer goes on to allege that Hubbard on March 12, 1857, bought from one Ranson a large tract of land for $9,000 (the premises sued for being...

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120 cases
  • Byrd v. Allen
    • United States
    • Missouri Supreme Court
    • September 8, 1942
    ...secs. 131-132; Steele v. Culver, 158 Mo. 136; Clark v. Clark, 18 S.W. (2d) 77; Keller v. Keller, 92 S.W. (2d) 157, 338 Mo. 731; Hubbard v. Slavens, 218 Mo. 598; Boone v. Getting, 114 S.W. (2d) l.c. 983; Lawson v. Cunningham, 204 S.W. l.c. 1108; Proctor v. Nance, 220 Mo. l.c. 115; Rhodes v. ......
  • Mercantile-Commerce Bk. & Tr. Co. v. Kieselhorst Co.
    • United States
    • Missouri Supreme Court
    • July 1, 1942
    ...to the equity division of the circuit court and tried as in equity before the judge as chancellor. Pitts v. Pitts, 201 Mo. 356; Hubbard v. Slavens, 218 Mo. 598. (2) Upon appeal to this court in an equity case, this court will review all the evidence and reach its own conclusions as to the w......
  • Hall v. Greenwell
    • United States
    • Missouri Court of Appeals
    • July 16, 1935
    ...Chapman v. McIlwrath, 77 Mo. 38, 46; Sloan v. Terry, 78 Mo. 626; Herman on Estoppel and Res Judicata, Vol. 2, p. 861 (2 Ed.); Hubbard v. Slavens, 218 Mo. 598, 620; Roberts v. Adkins, 5 S.W.2d 70; Marston Catterlin, 239 Mo. 390. (14) The contract in question was fully and faithfully performe......
  • Babcock v. Rieger
    • United States
    • Missouri Supreme Court
    • March 21, 1933
    ... ... 377; Martin v. Turnbaugh, 153 ... Mo. 172. (h) Whether the case is triable in equity is ... determined from the pleadings. Hubbard v. Slavens, ... 218 Mo. 598; Ebbs v. Neff, 30 S.W.2d 620. (i) This ... court in quashing the opinion of the Court of Appeals ... determined ... ...
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