Amick v. Brubaker

• Decision Date: 17 November 1890
• Citation: 101 Mo. 473,14 S.W. 627
• Court: Missouri Supreme Court
• Parties: AMICK v. BRUBAKER.

14 S.W. 627

101 Mo. 473

AMICK v. BRUBAKER.

Supreme Court of Missouri.

November 17, 1890.

TENANCY AT WILL — NOTICE TO QUIT — ADVERSE POSSESSION.

1. A written demise without reservation of rent, or named duration of term, creates a strict tenancy at will.

2. Where a tenant at will sets up a claim to the estate, as owner, his landlord may treat the tenancy as terminated, without notice to quit.

3. Where a tenant in common denies, in a pleading, his co-tenant's right, it is evidence of ouster, as well as any other form of claim to exclusive ownership.

(Syllabus by the Court.)

Appeal from circuit court, Cooper county; E. L. EDWARDS, Judge.

This is an action of ejectment. The petition alleges plaintiff's right to the possession of one undivided tenth of the land mentioned, and that defendant entered into the premises, and unlawfully withholds possession. The answer admits defendant's possession of the land, but denies generally all other allegations of the petition. The cause was submitted to the court, sitting as a jury. The plaintiff's evidence, which was uncontradicted, tended to prove that defendant entered into possession in 1875, under a written contract of lease, for no definite term, from George Arnold, and that defendant had ever since remained in possession; that in 1876 Arnold died, leaving 10 children as his only heirs at law. Plaintiff, for the purpose of showing that defendant claimed title through said Arnold, was permitted, against defendant's objection, to read in evidence a deed from one George W. Koontz and wife, conveying to defendant the interest of Koontz's wife in said land, as one of the children and heirs of said Arnold, said deed having been executed in 1877. Plaintiff himself testified that Koontz's wife was a child of said Arnold, and that defendant had procured him (plaintiff) to negotiate the purchase of said interest for him. Plaintiff then read in evidence, against defendant's objection, a deed from one George J. Arnold to the plaintiff quit-claiming to the latter all interest of George J. Arnold in the land, as one of the heirs of George Arnold, deceased. George J. Arnold was present as a witness for plaintiff, and testified that he was a son of George Arnold, and that his father died in 1876, leaving 10 children as his only heirs. Plaintiff here rested. Defendant on his part offered uncontroverted evidence tending to prove that, for a period of several years prior to the commencement of this suit, he was in possession of the land claiming title as an owner thereof, and rested. This was all the evidence. Defendant's attorney disclaimed any reliance upon the limitation statute as a defense. At the instance of the plaintiff the court declared the law as follows: "If the jury shall find from the evidence that the defendant entered into the possession of the land in controversy, as the tenant of George Arnold, and that afterwards the said George Arnold died, leaving 10 children surviving him, and that one of his children conveyed to the plaintiff his undivided...