Auldridge v. Spraggin

• Decision Date: 03 June 1942
• Docket Number: 37853
• Citation: Auldridge v. Spraggin, 163 S.W.2d 1042, 349 Mo. 858 (Mo. 1942)
• Parties: Lawrence L. Auldridge and Katherine Auldridge, Appellants, v. Lewis Spraggin and Allene Spraggin
• Court: Missouri Supreme Court

163 S.W.2d 1042

349 Mo. 858

Lawrence L. Auldridge and Katherine Auldridge, Appellants, v. Lewis Spraggin and Allene Spraggin

No. 37853

Supreme Court of Missouri

June 3, 1942

Rehearing Denied July 28, 1942.

Appeal from Jasper Circuit Court; Hon. Chas. Grayston Acting Judge.

Reversed and remanded (with directions).

R H. Davis for appellants; Will Spiva of counsel.

(1) An ejectment suit, in this State, is one for possession simply, as at common law, and a judgment in such suit is not a bar to a second suit between the same parties and their privies for the same property, based upon the same evidence and the same title. Kimmel v. Benna, 70 Mo. 52; Crowl v. Crowl, 195 Mo. 338; Sutton v. Damerion, 100 Mo. 141. It was ruled in the cases of Swearengen v. Swearengen, 202 S.W. 556, and Oncona Realty Co. v. Frazier, 41 S.W.2d 820, 328 Mo. 750, that a judgment in an ejectment suit was not a bar to a suit to try title based upon the same evidence and the same title. (2) The evidence shows, without contradiction, that that part of dwelling house located on lot 80 was constructed with the verbal permission of the owner of said lot 80, and that that part of said lot has been occupied continuously, openly, notoriously and adversely, under claim of right, against the whole world ever since 1900 or 1901, by the owners of lot 79. Matthews v. Citizens Bank, 46 S.W.2d 161, 329 Mo. 556; Moore v. Huffman, 39 S.W.2d 339; Waddell v. Chapman, 292 Mo. 666; Peper v. St. Louis Union Trust Co., 281 Mo. 562. (3) It is a familiar rule of law that possession of real estate for ten years, openly, continuously and adversely, under claim of right, vests in the possessor and divests the owner thereof of the legal title to such real estate. Matthews v. Citizens Bank, 46 S.W.2d 161, 329 Mo. 556; Moore v. Hoffman, 39 S.W.2d 339; Waddell v. Chapman, 292 Mo. 666; Peper v. St. Louis Union Trust Co., 281 Mo. 562. (4) The erection of the dwelling house, described in the evidence, and the occupancy thereof, was within itself an adverse holding, and was notice to the defendants and their grantors, immediate and remote, of such adverse holding. Edie v. Coleman, 141 S.W. l. c. 244; McDaniels v. Cutburth, 270 S.W. 353; Milligan v. Fritts, 226 Mo. 189; Hamilton v. West, 63 Mo. 93. (5) There is no "evidence of a substantial character to the contrary." The evidence shows that the dwelling described in the evidence is of a permanent character, and that it was occupied by plaintiffs' predecessors for more than ten years, and the burden was on defendants to prove by substantial evidence that it was the intention of plaintiffs' predecessors in title to claim only to the true line when ascertained. Edie v. Coleman, 141 S.W.2d l. c. 243; Milligan v. Fritz, 226 Mo. l. c. 194; Hedges v. Pollard, 149 Mo. 217; Davis v. Braswell, 185 Mo. 576; Diers v. Peterson, 290 Mo. l. c. 256. (6) Susie Harvey and her husband purchased lot 80, and at the time Baldry purchased lot 79, pointed out to them the fence west of the dwelling house as the line between lots 79 and 80, and stated that they only claimed up to said fence. The possession and use of the dwelling house by the Baldrys and their predecessors in title up to the fence on the west of the house is evidence of an agreement as to the boundary line and adverse possession thereof. Diers v. Peterson, 290 Mo. l. c. 257; Lemmons v. McKinney, 262 Mo. 525. (7) Albert Crockett who built said house for Bartholomew (commonly called "Bart") Crockett testified to an agreement with the owner of lot 80 of a verbal permission to extend said house over on lot 80. This oral permission was binding upon the party giving such permission, and also upon his grantees, immediate and remote. Smith v. McCorkle, 105 Mo. 135. (8) The legal title to all that part of lot 80 east of the fence described in the evidence had vested in the Baldrys and their grantors, immediate and remote, years before the bringing of the suit of Spraggin against Skelton, and the bringing of said suit and the judgment rendered therein did not affect in the least the title of plaintiffs or their grantors, immediate or remote. Ekey v. Inge, 87 Mo. 493; Jamison v. Van Auken, 210 Mo. l. c. 418; 2 C. J., secs. 563, 564, 565.

Emerson Foulke for respondents.

(1) Appellants' evidence was insufficient to make out a case of "adverse possession." Five essential elements are necessary to constitute effective "adverse possession," namely, that possession must be hostile and under a claim of right, actual, open and notorious, exclusive and continuous. The burden of proof was on appellants to show all these elements. Hilgert v. Werner, 145 S.W.2d 359, 346 Mo. 1171; Bell v. Barrett, 76 S.W.2d 394. (2) Appellants' possession was not hostile. Where the true boundary is unknown, and the party claiming only claims to the true line, his actual possession will not work a disseizin, and his possession is not adverse. Bell v. Barrett, 76 S.W.2d 394; Indian Creek Land Co. v. Bradford, 82 S.W.2d 589; Owens v. Thomas, 96 S.W.2d 561; State ex rel. Brown v. Hughes, 137 S.W.2d 544. (3) Appellant has failed to show any claim or color of title. There is no direct evidence of a parol gift. The hearsay evidence of two witnesses only shows a permissive use. All the evidence was that none of the prior owners of Lot 79 intended to claim any part of Lot 80, and there is no conveyance in appellants' claim of title which purports to convey more than Lot 79. Possession to be adverse must be under an unequivocal claim of ownership. Riebold v. Smith, 150 S.W.2d 599; Tidwell v. Waldrup, 151 S.W.2d 1092; Bell v. Barrett, 76 S.W.2d 394. (4) Appellant has failed to show continuous possession. He cannot avail himself of his predecessor's possession. A deed to Lot 79 was not sufficient to convey his predecessor's rights. Moore v. Helvy, 138 S.W. 481, 235 Mo. 443; Tidwell v. Waldrup, 151 S.W.2d 1092. (5) A purchaser while suit is pending is bound by the judgment. Appellants, having purchased from Skelton after judgment, were bound by all matter adjudicated in that suit. 34 C. J., p. 1014; Williams v. City of Hayti, 184 S.W. 470; State ex rel. Krusely v. Board of Trustees of Y. W. C. A., 186 S.W. 680, 268 Mo. 163. (6) While a suit in ejectment may not be a bar to a later suit to quiet title between the same parties or their privies, yet if the issues in the suit to quiet title were the same as they were in the ejectment suit and these issues were actually determined by the judgment, it is a bar. The rule of res adjudicata is that all the issues determined by the first trial cannot be tried again. In this case Skelton by his answer put the title to the real estate in issue and the judgment finds that respondents were the owners of the real estate in question; appellants, being Skelton's immediate grantees, after judgment, are barred from bringing this action. Hutchinson v. Patterson, 126 S.W. 403, 226 Mo. 174; Case v. Sipe, 217 S.W. 306, 280 Mo. 110; Realty & Development Co. v. Norman, 259 Mo. 631, 168 S.W. 752. (7) A judgment in an ejectment suit breaks the running of the Statute of Limitations. Adverse possession must begin anew from the date of the judgment. Matthews v. Citizens Bank of Senath, 46 S.W.2d 161, and cases cited there.

OPINION

Douglas, P. J.

This is a suit to quiet title to the eastern 14 feet of lot 80 in Taylor's Second Addition to the City of Joplin. The parties are owners of adjoining lots. Plaintiffs own lot 79, which adjoins the 14-foot strip. Lot 79 is not involved in this suit. Defendants are the record owners of lot 80 which includes the strip in question. Both parties are claiming ownership of the strip.

Some years ago the then owners of lot 79 built a house partly on their lot and encroaching 14 feet over on lot 80. In subsequent conveyances the house and land have been described merely as lot 79 with no mention or attempt to include in the description the 14 feet of lot 80 on which the house encroached. Likewise lot 80 has been conveyed from time to time, described merely as lot 80 without any exclusion or exception of the strip in question.

The same strip was previously the subject of an action in ejectment. In 1939 the present defendants, as owners of lot 80, filed suit in ejectment against the plaintiffs' grantor, the then owner of lot 79 who was in possession of that lot and the 14-foot strip.

In that suit the circuit court found the defendants in this case, plaintiffs in that one, were entitled to the possession of the 14-foot strip and ordered possession delivered to them. No appeal was taken from that judgment. A writ of possession was issued and served on plaintiffs' grantor who then conveyed lot 79 to the plaintiffs in this action. Plaintiffs immediately went into possession of lot 79 and the 14-foot strip. They then filed this suit to quiet title to the strip. In this suit the circuit court found against plaintiffs and in favor of defendants on their cross bill and decreed title to the strip in defendants. From this judgment plaintiffs appealed.

In their petition plaintiffs claim ownership of the strip by adverse possession arising from a parol gift of the strip to one of plaintiffs' predecessors in title. Defendants plead the judgment rendered in their favor in the ejectment action, and base their claim to the strip on that judgment alone as res judicata of their title.

Plaintiffs first argue that such judgment is no bar to this action to quiet title.

It is now well established in this State that a judgment in the simple action of ejectment does not adjudicate title to real estate. Such a judgment adjudicates only whether the plaintiff in the ejectment action has the right of possession as distinguished from title. [See Sec. 1529, R. S. 1939.]

This is not the universal rule in this...