16 S.W. 223 (Mo. 1891), Meier v. Meier

Citation:16 S.W. 223, 105 Mo. 411
Opinion Judge:Sherwood, P. J.
Party Name:Meier v. Meier et al., Appellants
Attorney:James Carr for appellants. Zach J. Mitchell and Charles Nagel for respondent.
Case Date:May 11, 1891
Court:Supreme Court of Missouri
 
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Page 223

16 S.W. 223 (Mo. 1891)

105 Mo. 411

Meier

v.

Meier et al., Appellants

Supreme Court of Missouri, First Division

May 11, 1891

Appeal from St. Louis City Circuit Court. -- Hon. James A. Seddon, Judge.

Affirmed.

James Carr for appellants.

(1) The trustee had no authority to sell under the deed of trust; only one of the secured notes was due, and the sale was premature. (2) The deed made by Thomas J. Meier and wife to Herman H. Meier as trustee for Alvina Meier, dated April 9, 1857, conveyed the equity of redemption of said land in trust for the separate use and benefit of Alvina Meier, and it is color of title. Railroad v. Clark, 68 Mo. 371; Hamilton v. Boggess, 63 Mo. 233. Herman H. Meier was a mere naked trustee, holding the legal title as a dry trust. Alvina Meier, the cestui que trust, had all the time and still has the absolute control over the land in question. R. S. 1879, sec. 3938; Perry on Trusts, secs. 520, 521; Roberts v. Moseley, 51 Mo. 286. (3) Thomas J. Meier, as husband of Alvina Meier, was entitled to hold possession of the land in question as tenant by courtesy initiate, or jure uxoris. Bledsoe v. Simms, 53 Mo. 305; Cooper v. Ord, 60 Mo. 420; Mueller v. Kaessmann, 84 Mo. 318. (4) The possession of Thomas J. Meier, owing to the relationship between him and Alvina Meier, was her possession -- inured to her benefit, and being adverse to plaintiff for more than ten consecutive years before the commencement of this suit vested the complete title in Alvina Meier. Bledsoe v. Simms, 53 Mo. 305. (5) There is not a scintilla of evidence that Thomas J. ever attorned to the plaintiff. The loose statements made in the two letters -- one of them lost and a dispute about what it contained -- by Thomas J. Meier to plaintiff do not show or constitute an attornment to plaintiff. Neither does the letter to "Dear Cecilia," dated November 6, 1881, show or constitute an attornment to plaintiff. The last letter was not written to plaintiff. R. S., sec. 3928; Hodges v. Eddy, 41 Vermont, 485; Campbell v. Gas Co., 84 Mo. 353. (6) There is no claim that she ever attorned to the plaintiff, and there is no claim that she ever authorized him to attorn for her. This was her separate property, and as to it she is considered as a feme sole. For whom did he hold possession? For her or himself in right of his wife. He never held for or in subordination to the plaintiff's title. The holding all the time was adverse to plaintiff. No admissions or statements of his derogatory to her title did or could bind her. She could only be divested of her title in the manner prescribed by the statute. R. S. 1879, sec. 3295; McBeth v. Trabue, 69 Mo. 642; Marshall v. Anderson, 78 Mo. 85; Huff v. Price, 50 Mo. 228; Kanaga v. Railroad, 76 Mo. 207. (7) Alvina Meier could not be estopped by her covenants in a deed. A fortiori she cannot be estopped by acts in pais. Mueller v. Kaessmann, 84 Mo. 318; McBeth v. Trabue, 69 Mo. 642; Bartlett v. O'Donoghue, 72 Mo. 563; Hord v. Taubman, 79 Mo. 101. Thomas J. Meier could not estop her by his statements, declarations and admissions. Hodges v. Eddy, 41 Vt. 485. (8) The deed from Thomas J. Meier to Herman H. Meier, as trustee for the use and benefit of Alvina Meier, was duly recorded. This was a public act and imparted notice to the plaintiff of her claim to the land. Mueller v. Kaessmann, 84 Mo. 329; Campbell v. Gas Co., 84 Mo. 375. (9) Adverse possession for ten years tolls the entry of the person having the right of entry, and not only bars the remedy but extinguishes the right and vests a perfect title in the adverse holder. Leffingwell v. Warren, 2 Black, 605; Nelson v. Broadhack, 44 Mo. 596; Fulkerson v. Mitchell, 82 Mo. 13. (10) Appellant had a perfect title to said land, subject to be defeated only by Adolphus Meier asserting his title within the time prescribed by the statute of limitations. Time was running against him and was gradually building up Alvina Meier's title. Her title, although derived from the same grantor as Adolphus Meier, was adverse both to the grantor and Adolphus Meier. Society v. Pawlet, 4 Pet. 506; Blight's Lessee v. Rochester, 7 Wheat. 535; Macklot v. Dubreuil, 9 Mo. 47; Jaeckel v. Easton, 11 Mo. 118; Scruggs v. Scruggs, 43 Mo. 142. (11) It has been shown that Thomas J. Meier could not by any oral admissions, declarations or acts in pais divest Alvina Meier of her title to said land. See authorities cited under sixth point. If it be regarded as her separate property, he could not divest her of her title. He was not her agent. He had no authority from her to say or do anything that would divest her of her title. She could not be divested of her title without her authorization or consent. Garnett v. Berry, 3 Mo.App. 8; Eystra v. Capelle, 61 Mo. 578; Hord v. Taubman, 79 Mo. 101. (12) The verdict did not find on all the issues submitted to the jury, and was indefinite and uncertain.

Zach J. Mitchell and Charles Nagel for respondent.

(1) Respondent established the unquestioned paper title, which wiped out every other title in the case. This gave him legal seizin and possession; and upon this title he had the right to rest, throwing on defendant the burden to defeat it as she might. Husley v. Wood, 55 Mo. 252. (2) It is at least doubtful whether Thomas J. Meier, as the original mortgagor, or appellant, Alvina Meier, as grantee subject to said mortgage, or as continuing the possession of her said husband, could claim adversely to respondent, the original mortgagee and subsequent grantee. Buswell on Limitations & Adverse Possession, sec. 312. The law in this state seems to require positive notice, in such a case, of an intention to change friendly and subordinate, into adverse, possession. Budd v. Collins, 69 Mo. 129; Hamilton v. Boggess, 63 Mo. 233. (3) And, if the right to so hold adversely to respondent without such notice be conceded, it still nowhere distinctly appears (as it is submitted it should) whether appellant claims under the original deed to her husband, or under the deed to Herman Meier, trustee, subject to the prior mortgage to respondent. And it is even doubtful whether the adverse possession of the widow could be tacked to the adverse occupancy of the husband. Sawyer v. Kendall, 10 Cush. (Mass.) 24. (4) But waiving all these questions, inasmuch as appellant made no effort to defeat the paper title other than by reliance on the statute of limitations, she was clearly under as complete obligation as any other litigant to show not only possession for the required period of time, but also to establish that said possession was adverse to respondent. Bradley v. West, 60 Mo. 33; Avery v. Adams, 69 Mo. 603; Burke v. Adams, 80 Mo. 504; Sedgwick & Wait, Trial of Land Titles [2 Ed.] secs. 729, 730; Buswell on Limitations & Adverse Possession, sec. 227. As a matter of law there is no presumption of adverse possession; on the contrary, appellant must be presumed to hold in compliance with the legal title. Lynde v. Williams, 68 Mo. 360; Morris v. Sellenrieck, 10 Mo.App. 585. (5) Whatever the title relied upon there was no error in the admission of the testimony. The declarations of Thomas J. Meier, offered by respondent, were clearly admissible. First. Because he was the party in actual possession (possibly if not presumably in his own right), and these declarations formed part of the res gestoe. Sedgwick & Wait, Trial Land Titles [2 Ed.] sec. 758; Buswell on Limitations & Adv. Possession, sec. 243; 1 Greenleaf on Ev. [14 Ed.] sec. 109, and notes; Burgart v. Borchert, 59 Mo. 80; Wilson v. Albert, 89 Mo. 537. Because, even under the deed to the trustee for Alvina and Thomas J. Meier, the husband would have been the proper party defendant in ejectment; and having sole possession his declarations alone were admissible. Von Strader v. Taylor, 7 Mo.App. 363; Meegan v. Gunsellas, 19 Mo. 417; Hunt v. Thompson, 61 Mo. 154. Second. The circumstance that Thomas J. Meier's letter to his sister Cecilia was written to a third party can be no objection, where the sole purpose is to prove the writer's intention and understanding at the time as to the question now before the court. Morse v. Diebold, 2 Mo.App. 163; Wilson v. Albert, 89 Mo. on page 545. Third. Witness Gardiner's testimony was competent, because it gave his recollection of the contents of a letter, which was shown to be lost, and the translation of which was admitted at another trial to which appellant, Alvina Meier, was a party, and at which she was present. Greenleaf on Ev. [14 Ed.] sec. 183, p. 27. Fourth. The other objections to the ruling on testimony offered do not seem to be urged by appellant. (6) And, whatever the theory upon which appellant may now choose to stand, the instructions under which the case went to the jury gave full protection to every possible view of appellant's case. (7) The verdict determined all essential issues submitted to the jury. The cases cited in appellant's brief are not in point. Caldwell v. Stephens,...

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