Hendricks v. Musgrove

• Decision Date: 20 June 1904
• Parties: HENDRICKS v. MUSGROVE et al.
• Court: Missouri Supreme Court

81 S.W. 1265

183 Mo. 300

HENDRICKS v. MUSGROVE et al.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

MARRIED WOMEN — DEEDS — AFTER-ACQUIRED INTEREST — CO-TENANTS — DISSEISIN — LIMITATIONS.

1. A deed by a husband, acknowledged by the wife as such, and not as owner, does not convey an interest in the land then owned or thereafter acquired by the wife in her own right.

2. A married woman's deed, made before the married woman's act was passed in 1889, did not convey an after-acquired interest.

3. Where, on an issue as to whether acts of co-tenants amounted to a disseisin of another co-tenant, so as to set the statute of limitations in operation, the facts were undisputed, the decision as to whether they amounted to a disseisin was for the court.

4. Where a co-tenant, who supposed he had legally acquired the interests of other co-tenants, made valuable improvements and described himself in a deed of trust of the land as owning it, his possession was adverse, setting the statute of limitations in operation as against another co-tenant.

Appeal from Circuit Court, Scotland County; E. R. McKee, Judge.

Action by Ludlow C. Hendricks against Zora M. Musgrove and others. From a judgment for defendants, plaintiff appeals. Reversed.

Smoot, Boyd & Smoot, for appellant. Mudd & Wagner, J. M. Jayne, and Lewis Myers, for respondents.

MARSHALL, J.

This is an action of ejectment for an undivided one-fifth of the N. ½ of the N. E. ¼ of of the S. E. ¼ and the W. ½ of the N. E. ¼, and the N. E. ¼ of the N. E. ¼ of section 36, township 65, range 11 W., in Scotland county. The petition is in the usual form, and the ouster is laid as of the 1st day of July, 1892. The answer admits the possession by the defendants, and pleads estoppel and title by limitation. There was a verdict and judgment for the plaintiff, and defendants appealed.

The facts in this case are all undisputed, and are as follows: Ludwell Musgrove owned the land here involved, together with other lands. He died intestate in 1873, leaving his widow, Mary A., and five children, to wit, Mary F. Hendricks, the mother of the plaintiff (but the plaintiff was not born for some two years thereafter), Julia, Alexine Woods, William E., and the defendant Gilbert, and possibly John T. Musgrove, who, however, appears to have died. The widow Mary A., believing that she was entitled only to dower and homestead rights, instituted on May 9, 1879, a partition suit against the six children. This resulted in a decree in partition whereby the land in controversy was set apart to the widow as a homestead of the value of $1,500. Thereafter, at the solicitation of the widow, and all parties believing that she had a life estate only in the property, the defendant Gilbert, who then lived in Colorado, purchased from his sister, Mary F. Hendricks, all of her divided and undivided interest in the land in controversy for the price and sum of $800, by a warranty deed dated February 23, 1880, and recorded on May 18, 1880. Moved thereto by like inducement, the defendant Gilbert purchased the interest of his sister Mrs. Alexine Woods on April 21, 1880, and of his sister Julia on August 26, 1880. These deeds were also duly recorded. Thereupon, having, as they all supposed, acquired the title by inheritance or by purchase to four-fifths of the fee, subject to his mother's life estate of homestead, the defendant Gilbert moved back to Missouri and went to live upon the premises with his mother. Shortly afterwards, about 1880 or 1881, the plaintiff's mother died, and the plaintiff continued to live in Colorado. In 1883 the widow died, and the defendant Gilbert entered into the possession and sole enjoyment of the premises. On September 6, 1886, he executed a deed of trust to Erwin Dewey upon his interest in the land, which was recited in the deed to be a four-fifths interest; that is, the interest of Gilbert, of Mary F. Hendricks, plaintiff's mother, of Alexine Woods, and of Julia Musgrove, and which was the whole estate, except the one-fifth then owned by his brother, William E. Musgrove. On March 10, 1887, he purchased the interest of his brother William E. in the premises, and having, as he supposed, then acquired by inheritance or purchase the absolute fee to the premises, he executed on December 6, 1887, another deed of trust upon the land to Henry H. Fugate, which purported to cover the whole fee. All of these conveyances and deeds of trust were duly and promptly placed of record in the proper office in the county in which the land lies. After the defendant Gilbert had thus acquired the whole fee, as he supposed, and after the death of his mother, which terminated her life estate, as they all regarded it, he made many and valuable improvements on the land, and otherwise cleared and improved it, at an aggregate expense of some $3,000. He occupied, used, enjoyed, and remained in the open, exclusive, notorious, and continuous possession of the premises, and has continued so to do. He claimed to hold the whole estate against the whole world. His neighbors and the community regarded and treated it as his. No one else claimed any interest in it prior to the institution of this suit. On the 15th of June, 1896, he conveyed the land to E. R. Bartlett, and on the 20th of December, 1898, Bartlett conveyed it to Zora M. Musgrove, the wife of the defendant Gilbert, and he claims that these conveyances were intended to settle the land upon his wife, while the plaintiff claims that about that time he began making inquiries about his interest in the land, and that the defendant Gilbert made the conveyances for the purpose of thereby furnishing a foundation for a claim of actual ouster of his co-tenant, the plaintiff.

At the close of the whole case the defendants demurred to the evidence. The court overruled the demurrer. The court submitted the case to the jury upon instructions which proceeded upon the theory that the widow, Mary A. Musgrove, plaintiff's grandmother and Gilbert's mother, owned the fee, and not merely a life estate or homestead right in the land, and that at her death the land descended in fee to her children, and that the plaintiff became seised of an undivided one-fifth thereof in right of his deceased mother; that Gilbert became a tenant in common with the plaintiff, and that Gilbert's possession was for the plaintiff, as well as for himself, and that Gilbert could not acquire title by adverse possession against the plaintiff, except "by such acts as would amount to an assertion that he owned the whole of said lands, as against the plaintiff's right, and by such overt, public, hostile, and notorious acts as would inform the plaintiff that he claimed the title as against him, and that he had ousted the plaintiff of his right to the possession of his interests in the said lands"; that the possession of Gilbert, no matter how long continued, would not constitute an ouster of the plaintiff; that the deeds read in evidence cannot be considered by the jury for the purpose of determining whether Gilbert acquired the plaintiff's interest in the land, but only for the purpose of ascertaining whether or not Gilbert "had been claiming title as against plaintiff under said deeds, claiming to have acquired his interest in the lands under said deeds"; that Gilbert must prove 10 years' adverse continued possession as against plaintiff's title, and that he must show that he "did actually oust the plaintiff of his right and possession to said lands by asserting a hostile, open, adverse, and notorious possession up against the plaintiff as would impart notice or give knowledge to plaintiff that defendant denied plaintiff's right to said lands or his title to same"; that as a co-tenant the defendant had a right to the possession of the land for himself and his co-tenants, after his mother's death, "and he had a right to improve same, when necessary to be done, and to pay taxes on the same, and to use the rents and profits of same for that purpose, and to charge up said improvements against the rents and profits of the land." The jury was further instructed that defendant, "owning an interest in said lands, had a right to mortgage his said interest when he deemed necessary, but such acts of themselves done by defendant do not constitute an ouster of plaintiff's right"; that in determining the issues in the case the jury can consider all the facts and circumstances given in evidence; that "silence on the part of the plaintiff and acquiescence by the plaintiff in Gilbert Musgrove holding said lands in possession for the time he has and making no...