Snell v. Harrison

• Decision Date: 02 July 1895
• Parties: SNELL et al. v. HARRISON et al.
• Court: Missouri Supreme Court

32 S.W. 37

131 Mo. 495

SNELL et al. v. HARRISON et al.

Supreme Court of Missouri.

July 2, 1895.

EJECTMENT — PARTIES — RENTS AND PROFITS — LIMITATIONS — PENDENCY OF ACTION.

1. The fact that a trustee of an express trust, holding the legal title to land, has joined with him as plaintiffs in ejectment cestuis que trustent who are minors, is not ground for abatement of the action.

2. In ejectment against a tenant in common for an undivided interest, a judgment for plaintiff for rents and profits of the land received by the defendant from the land while unlawfully withheld is proper.

3. Where a tenant in common recovers judgment in ejectment against his cotenant, who claims by adverse possession, the interruption to the statute of limitations interposed by the commencement of the action of ejectment continues during the life of a judgment for plaintiff, though the writ of restitution awarded in such judgment is not issued.

In banc. Appeal from circuit court, Johnson county; James H. Lay, Judge.

Action by John R. Snell and others against Brunetta Harrison and others for partition. From a judgment for plaintiffs, defendants appeal. Affirmed.

A. B. Logan and Chas. E. Morrow, for appellants. J. W. Sudduth and Fyke, Yates & Fyke, for respondents.

BRACE, C. J.

This is an action in partition by the devisees and heirs at law of John Snell, deceased, against Brunetta Harrison and George W. Harrison, her husband, and the administrator of Harvey Harrison, deceased, in which the plaintiffs obtained judgment and order of sale, and the defendants appeal. The land sought to be divided is 160 acres, situate in section 13, township 45, range 24, in said county, particularly described in the petition, in which it is alleged that the plaintiff John R. Snell acquired the legal title to the shares therein claimed by him and his coplaintiffs as executors of the estate of the said John Snell, deceased, and that he holds the same as tenant in common with the said Brunetta, in trust for the benefit of said estate and of the devisees of said testator.

1. This land has been in litigation for nearly 20 years, in the course of which two of the suits have reached this court, and are reported, the first in 83 Mo. 651, and the other in 104 Mo. 158, 16 S. W. 152, where a full statement and history of the transactions of the parties may be found. This last suit was ejectment by John R. Snell against the Harrisons, in which the defendants set up their title, and asked for equitable relief, and in which the respective rights and interests of the parties were finally adjudicated and settled; this court holding that the plaintiff, Snell, was entitled to recover the undivided seven-tenths of the south 80 acres of said land, and that Brunetta Harrison was entitled to the other undivided three-tenths of said south 80, and that said plaintiff Snell was entitled to the undivided seven-thirtieths and the said Brunetta Harrison to the undivided twenty-three thirtieths of the north 80 of said tract; and remanding the cause to the circuit court, with directions to enter judgment accordingly, after taking an account of the rents and profits. Under this mandate, on the 18th of September, 1891, final judgment was rendered in the circuit court in favor of the said plaintiff, John R. Snell, for the recovery of his said interest in said real estate, and for $1,650, the rents and profits thereof from June 1, 1880, "and that he have a writ of restitution for said real estate, and execution for said sums of money found as rents and profits, and for costs.' Afterwards, to wit, on the 6th day of August, 1892, this suit was instituted in the circuit court of Johnson county, in which the court found the respective rights and interests of the parties to be as declared by this court in its decision aforesaid, and further found that the said undivided three-tenths of the said Brunetta Harrison in the south 80 was subject to a mortgage in favor of the estate of Harvey Harrison, amounting to the sum of $607.28 and interest; that the said Brunetta has, to the exclusion of the plaintiffs, received all rents and profits from all of said real estate, amounting to the sum of $1,364; that plaintiffs are entitled to partition of the premises, and that the same is not susceptible of division in kind without great prejudice to the interest of the parties; and decreed that said real estate be sold, and the proceeds be distributed as follows: First. To the payment of costs and expenses of this proceeding. Second. That seven-tenths of the proceeds arising from the sale of the S. E. ¼ of the S. W. ¼ and the S. W. ¼ of the S. E. ¼, and seven-thirtieths of the proceeds arising from the sale of the N. W. ¼ of the S. W. ¼ and the N. W. ¼ of the S. E. ¼, all in said section 13, aforesaid, be paid to plaintiffs, to be divided among them according to their interests as set forth in the petition. Third. That out of three-tenths of the proceeds arising from the sale of the said S. E. ¼ of the S. W. ¼ of the S. E. ¼ of said section 13 there be paid to J. W. Harrison, administrator of the estate of Harvey Harrison, said mortgage debt, to wit, the sum of $607.28, with interest thereon at 10 per cent. from the 5th day of April, 1893, if three-tenths of the proceeds arising from the sale of the two last described forties be sufficient to pay the same. Fourth. That out of the remaining proceeds of the sale of Brunetta Harrison's interest in all said lands be paid the plaintiffs the sum of $1,364, the rents aforesaid, which is hereby declared to be a lien and charge upon the interest of said Brunetta Harrison. That the balance of the proceeds of such sale, after paying and satisfying the disbursements and distributive shares of plaintiffs, hereinbefore set out be paid to Brunetta Harrison.

The defendant Brunetta Harrison, in her answer, denied plaintiffs' ownership and tenancy in common with her of the premises sought to be divided, and pleaded adverse possession for more than 10 years, and now insists that her plea ought to have been sustained, and the refusal of the circuit court to do so presents the controlling question in the case. The undisputed facts are that the said Brunetta Harrison and her husband...