Wheelock v. Overshiner

• Decision Date: 23 May 1892
• Citation: 19 S.W. 640,110 Mo. 100
• Parties: WHEELOCK v. OVERSHINER et al.
• Court: Missouri Supreme Court

19 S.W. 640

110 Mo. 100

WHEELOCK v. OVERSHINER et al.

Supreme Court of Missouri, Division No. 1.

May 23, 1892.

ACTION ON COVENANT — EVIDENCE — HOMESTEAD — ADVERSE POSSESSION — EJECTMENT.

1. In an action on the covenants of warranty in a deed, although a judgment of eviction in a suit of which defendants had no notice, and in which they were not made parties, is insufficient, without further proof that the title under which ouster was made was paramount to that of plaintiff's grantor, to establish plaintiff's right of recovery, the omission is cured by the introduction by defendant of evidence showing the title of each party to the ejectment suit, and presenting the question of paramount title on the evidence.

2. Land of which a widow was seised in fee simple because it was the homestead of her deceased husband was sold at partition sale in a suit to which she was not a party. Dower had been assigned to the widow in part of said land, and she attempted to convey her dower interest therein to the purchaser at partition sale by a deed in which her second husband did not join. Held, that said purchaser acquired no title to said land by either transaction.

3. During the time she remained single the widow lived in a house on said land, but three fourths of the land was cultivated for the benefit of the heirs. All parties were ignorant of the widow's right of homestead. Held, that the heirs did not have such adverse possession as would start the statute of limitations running against the widow's homestead title.

4. Where in ejectment by a woman it appears that defendant has been in the peaceful, continuous, adverse possession of the land for 13 years before the action was begun, and that the woman's husband had not been seen or heard from during that time, plaintiff cannot recover, since the presumption is that the husband died 7 years after he was last heard from, thus relieving the plaintiff from the disabilities of coverture.

Appeal from circuit court, Polk county; W. I. WALLACE, Judge.

Action by James C. Wheelock against John Overshiner, Eliza Pitts, W. D. Pitts, Reuben Richards, W. D. Pitts, and John Overshiner, as devisees and distributees under the will of Meredith Richards, deceased, and as executors of the will of Mary Richards, a codistributee, upon a covenant of warranty given by said Meredith Richards. Plaintiff obtained judgment. Defendants appeal. Reversed.

A. A. Underwood, for appellants. T. G. Rechow and J. B. Upton, for respondent.

BRACE, J.

On the 17th of September, 1881, Meredith Richards and wife, by general warranty deed, conveyed 146 acres of land in Hickory county, Missouri, (described in the petition,) to the plaintiff, who thereupon entered into and remained in possession thereof until evicted therefrom under a judgment of the circuit court of said county against him rendered on the 21st day of November, 1888, in an action of ejectment in favor of Elenor Britton. In the mean time the said Meredith Richards died possessed of an estate largely in excess of the value of the land conveyed, which by his last will he devised to his wife, Mary Richards, and to the defendants John Overshiner, Reuben Richards, and Eliza Pitts. Prior to the 21st of November, 1888, the estate of the said Meredith was finally settled, and the said devisees came into possession of their estate under said will, and thereafter the said Mary Richards died testate, and by her last will devised all the estate received from her said husband to the said defendants Eliza Pitts and John Overshiner; and the said defendants John Overshiner and W. D. Pitts are the executors of the last will and testament of the said Mary Richards, whose estate is now in course of administration by said executors. This suit was brought by the plaintiff on the 30th day of November, 1888, to recover damages for breach of the covenants of warranty in the said deed so executed by the said Meredith Richards to plaintiff, and to charge the same against the defendants, his devisees. The answer denied any breach of the covenants of the deed, any knowledge that a judgment was rendered against plaintiff in respect of said lands, as charged in the petition, and averred that if any such judgment was rendered it was obtained by fraud and collusion between the plaintiff and the said Elenor Britton. The reply put in issue the new matter set up in the answer, and averred that the defendants Overshiner and Pitts were notified of the pendency of the suit against plaintiff, and were present at the trial when judgment of ouster therein was rendered against plaintiff. The case was tried without a jury, and no declarations of law were given. The court found the issues for the plaintiff, assessed his damages at $1,847, apportioned the same among the devisees according to the respective amounts received by them under the will of said Richards, and rendered a separate judgment against each devisee for the amount so apportioned, to be levied of the estate received by each from said testator. From this judgment the defendants appeal.

1. On the trial the judgment in the ejectment suit of Elenor Britton against the plaintiff was admitted in evidence over the objections of the defendants, and this is assigned for error. The defendants were not parties to that suit, and the only notice that any of them had of it, as appears from the evidence of the plaintiff, was that after the suit was instituted, and before he entered his appearance, he had a talk with defendants Overshiner and Pitts about the case, in which he asked them to assist him in employing counsel to defend the case, and they declined. No notice whatever was shown as to the other defendants. In order to conclude a warranty by a judgment of eviction, "the notice must be distinct and unequivocal, and expressly require the party bound by the covenant to appear and defend the adverse suit." Rawle, Cov. (5th Ed.) § 125. And it cannot be said that any of the defendants were so notified in this case. Nevertheless, it was not indispensable to the recovery on the covenant that notice of the adverse suit should have been in any way given, and while the judgment without such notice is not evidence of eviction by paramount title, yet it is evidence of an eviction, and as such was admissible. Fields v. Hunter, 8 Mo. 128; Walker v. Deaver, 79 Mo. 664; 2 Black, Judgm. § 571. After its admission, it still remained for the plaintiff to show that the title under which he was ousted was paramount to that of his grantor. This the plaintiff did not undertake to do, and, if the case had been submitted on the plaintiff's evidence, the judgment must have been for the defendants. Instead, however, the defendants relieved the situation by introducing evidence showing the title of each party to the ejectment suit, and presenting for the determination of the court the question whether on all the evidence the plaintiff had been ousted by paramount title.

2. It appears from the evidence that Young M. Pitts is the common source of title; that he died in May, 1871, seised and in possession of the land in question, with other real estate, not contiguous thereto; that at the time of his death he was living with his family on the land in controversy, occupying it as his homestead; that it was then worth less than...