Smith v. Patterson

Decision Date04 June 1888
Citation8 S.W. 567,95 Mo. 525
PartiesSmith v. Patterson et al., Appellants
CourtMissouri Supreme Court

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Affirmed.

M. F Taylor for appellants.

(1) In actions of ejectment, the plaintiff's right of recovery is limited to the amount of property shown to be in the actual possession of the defendant. Keene v. Barnes, 29 Mo. 377; Gray v. Givens, 26 Mo. 291; Bledsoe v. Simms, 53 Mo. 308; Sutton v. Gassaleggi, 77 Mo. 207; Wilson v. Albert, 89 Mo. 537; Walsh v Varny, 38 Mich. 73; Jackson v. Hagan, 2 Johns. 441; Harrison v. Stephens, 12 Wend. 170; Moor v. Abarnath, 7 Black. 442; Jones v. Walker, 47 Ala. 175; Brown v. Combs, 29 N. J. Law, 36; Wharton v. Clay, 4 Bibb, 157; McArthur v. Porter, 6 Peters, 205; Tyron v. Carlin, 5 Watts, 371; VanAlstyne v. Spraker, 13 Wend. 578. (2) Declarations as to the time and place of burial are not within the rule of family reputation. 1 Phillips on Evid., p. 205, sec. 253; 1 Starkie on Evid., secs. 35, 36, 37, and 38; Queen v. Hepburn, 7 Cranch, 291; Braintree v. Hingham, 1 Pick. 245; Shearer v. Clay, 3 Marsh. 549; Kidney v. Cockburn, 2 R. & M. 167. (3) The facts in this case, if they did not entitle defendant to a verdict in his favor because of the payment of purchase money for this property, certainly, under the rule in Missouri, gave him an equity for the return of that purchase money. Valle's Heirs v. Fleming's Heirs, 49 Mo. 152; Shroyer v. Nickell, 55 Mo. 264; Jones v. Manley, 58 Mo. 559; Neef v. Redman, 76 Mo. 195; Henry v. McKerlie, 78 Mo. 416; Bagby v. Emberson, 79 Mo. 139; Walker v. Owen, 79 Mo. 569; (4) The plaintiff, by her conduct, having lulled the defendant to security and permitted him to go on clearing the land and making valuable improvements, is now estopped to assert title. Bigelow on Est. 578; Chouteau v. Goddin, 39 Mo. 229; Gamhort v. Finney, 40 Mo. 449; Dezell v. Odell, 3 Hill, 215; Townsend v. Stone Co., 6 Duer, 208.

J. L. & F. P. Blair and Douglass & Babb for respondent.

(1) The evidence as to the inscription on the tombstone was immaterial. Besides the evidence was competent. (2) Durrett Patterson is conclusively presumed to know that he bought only a life estate if he bought anything, and appellants' argument as to the return of the purchase money is entirely inconsequential. Besides there is no evidence that Patterson paid to Crobarger the money he asks to be refunded. (3) Plaintiff's rights are not affected by any improvements made on the premises by defendant Patterson. He was only a life tenant and so long as he did not injure the freehold, it was not only not her duty, but it was not her legal right, to complain. (4) Plaintiff could elect to sue Patterson for inherited share, to-wit, one-third of the Pattersons' three-sevenths.

OPINION

Norton, C. J.

This suit is by ejectment to recover possession of certain land in St. Louis county. The defendants' answer, besides being a general denial, sets up the statute of limitations, and alleges that Durrett Patterson, one of the defendants, purchased the property from the mother of the plaintiff, and after having bargained for her interest paid her part of the purchase money, and under her direction paid the remainder of the purchase price to her husband, with the understanding that the wife would execute in proper form a deed to the property immediately upon finding herself able to go to the nearest notary, but that she died without executing the deed. The answer further alleges that, in 1869, plaintiff, being of full age and laboring under no disability lived in the immediate neighborhood of the property, saw defendant making valuable improvements thereon, knew that he claimed entire title to the property, and permitted him to make the improvements without asserting any claim of title. The answer was denied by replication and on the trial plaintiff obtained judgment, from which the defendants have appealed.

The evidence establishes the following facts: That one Barnabas Harris owned a tract of land in St. Louis county, containing about four hundred and twenty or four hundred and thirty acres of land; that he died, leaving seven children as his heirs; that one Simpson Harris acquired the interest of four of said heirs in said land; that Emily Crobarger was one of said heirs; that she was a married woman, and her husband's name was John Crobarger; that plaintiff is the daughter and only heir of said Emily; that said Emily died in 1836; that her husband, said John, survived her, and lived till 1878, when he died; and plaintiff thereafter, in 1882, brought this suit as the only heir of said Emily to recover her interest in the said land.

To defeat plaintiff's title thus derived, a deed was put in evidence from said John Crobarger, the husband of said Emily, conveying to defendant Durrett Patterson an interest of one-seventh in said land. This deed was dated the twentieth of May, 1836, and was filed for record July 11, and recorded the third of August, 1836; it is not executed by Mrs. Crobarger, nor does it purport on its face to be a deed from John Crobarger and Emily, his wife, but the only grantor named in it is the said John. It further appears that, in 1837, said Simpson Harris being the owner of four-sevenths, and defendant Durrett Patterson claiming to be the owner of three-sevenths of said land, one of these three-sevenths being claimed under the said deed of said John Crobarger, made an equitable partition of said land according to the interests claimed as above set forth, under which said Patterson quit-claimed to said Harris his interest in two hundred and forty-six acres of said land, and said Harris quit-claimed to said Patterson his interest in one hundred and eighty-six and ninety-two-hundredths acres thereof, the land set apart to each being specifically described in the deeds. Defendant Patterson went into possession of the land thus set apart to him, and has remained in possession ever since.

It is clear that the deed from John Crobarger to Patterson, under which he claims title, only conveyed the life-time interest of said Crobarger as tenant by curtesy, and that, upon the death of Mrs. Crobarger, the fee to one-seventh of the land became vested in the plaintiff as her only heir, and it is also clear that her right of action to recover possession of such interest did not accrue till the death of said Crobarger, which occurred in 1878, and that, inasmuch as plainti...

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2 cases
  • Linville v. Greer
    • United States
    • United States State Supreme Court of Missouri
    • 26 November 1901
    ...... Benthall, 4 Heisk. 601; Matthews v. Davis, 2. Caldw. 443; Williams v. Baker, 71 Pa. St. 476;. Burch v. Linton, 78 Va. 584; Sims v. Smith, . 86 Ind. 577; Vaughn v. Parr, 20 Ark. 600; Drake. v. Ramsey, 5 Ohio 252; Cressinger v. Lessee. Welch, 15 Ohio 156; Prant v. Wiley, 28 ...61. (5) The statute of limitation is no defense in this. case. Dyer v. Brannock, 66 Mo. 422; Ramsey v. Otis, 133 Mo. 95; Smith v. Patterson, 95 Mo. 525; Miller v. Quick, 158 Mo. 503; Harris v. Ross, 86 Mo. 100; Beaume v. Chambers, 22 Mo. 36; Bell v. Harmon, 38 Mo. 435; Allen ......
  • McGinnis v. Loring
    • United States
    • United States State Supreme Court of Missouri
    • 16 January 1895
    ...e., on December 8, 1890. ""Cross v. Terlington, 2 Murphy, 6; ""Watson v. Wace, 9 B. and C. 153; ""Brown v. Brown, 45 Mo. 414; ""Smith v. Patterson, 95 Mo. 525; ""Railroad v. Green, 68 Mo. ""Wilcoxen v. Osborn, 77 Mo. 629; ""Fitzgerald v. Barker, 85 Mo. 13. ""C. A. Schnake and ""Jas. M. Lori......

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