Baker v. Thompson

• Decision Date: 25 November 1908
• Parties: BAKER et al. v. THOMPSON et al.
• Court: Missouri Supreme Court

114 S.W. 497

214 Mo. 500

BAKER et al. v. THOMPSON et al.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. HUSBAND AND WIFE (§ 25)—AGENCY OF HUSBAND FOR WIFE.

Ordinarily the acts and words of the husband regarding his wife's property are not binding on her.

2. HUSBAND AND WIFE (§ 58)—PROPERTY OF WIFE—APPOINTMENT OF AGENT.

A married woman can appoint an agent to manage her separate estate.

3. APPEAL AND ERROR (§ 1001)—REVIEW—FINDING OF JURY.

The finding of the jury that an agency existed is conclusive on appeal, when supported by the evidence.

4. EVIDENCE (§ 248)—ADMISSIONS—HUSBAND AND WIFE—AGENCY.

Where it was shown that a wife appointed her husband as her agent to manage her separate estate, his admissions against her interest with reference thereto were admissible.

5. ADVERSE POSSESSION (§ 78)—COLORABLE TITLE—DESCENT.

Where a testator made no adverse claim to land occupied by him, which adjoined his own property, and made no attempt to devise it, his devisee acquired from testator no legal or colorable title to such land.

6. ADVERSE POSSESSION (§ 11)—CLAIM OF PROPERTY—DEVISE.

One whose sole claim to land was under her father's will, which in fact did not devise it, though it did devise adjoining land within the same fence, and who made no claim that her possession was adverse, acquired no legal title by adverse possession.

7. ADVERSE POSSESSION (§ 14)—OCCUPANCY—NECESSITY.

To acquire title by adverse possession, either actual occupancy, or constructive possession under colorable title, must be shown.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by John M. Baker and others against Eva K. Thompson and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is an ejectment suit, instituted by plaintiffs against the defendants in the circuit court of Clinton county, to recover the possession of about four acres of land lying in the southwest corner of the northwest quarter of the southeast quarter of section 14, township 55, range 32. The petition is in the usual form, and the answer was a general denial and a plea of the 10-year statute of limitations. The reply was a general denial of the new matter stated in the answer. A trial was had before the court and jury which resulted in a verdict and judgment for the plaintiffs, and, after taking the proper preliminary steps, the defendants duly appealed the cause to this court. The facts of the case are few and simple, and most of them are undisputed. The following plat introduced in evidence shows the tract of land sued for, and sheds much light upon the disputed issues involved in the case:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

A.—Land in controversy.

B.—Thompson land in Guyer's field.

In the year 1885 Charles W. Shepherd owned the southwest quarter of the southwest quarter of section 14, township 55, range 32 (which we will hereafter call the "south forty") and at the same time Michael Guyer owned the northwest quarter of the southwest quarter of same section, which lies immediately north of the "south forty" (which will hereafter be designated the "north forty"). Shepherd was a son-in-law of Guyer, and by an agreement entered into by and between them Shepherd fenced in and occupied the tract of land in controversy, and left about the same amount of land in the northeast corner of the "south forty" in Guyer's possession; and it was also agreed between them that this arrangement might be terminated at any time by either party thereto and the fence put back on the true line between the two 40's. The location of the railroad and branch through their lands, taken in connection with the boggy and miry condition of soil in and near the branch, suggested and induced both of them to enter into said arrangement and construct the fences as above stated, which was for their mutual convenience and benefit. Shepherd also owned the quarter section just west of the two 40's, and Guyer owned the lands on the east side thereof. A year or so after this arrangement had been entered into between them, and after the fences had been constructed in pursuance of that agreement, Shepherd sold and conveyed his entire land to William Kirk by proper deed of conveyance. The latter went into possession and occupied the land until his death, which occurred something less than a year afterwards. By his last will Kirk gave all of his land to his daughter, Eva K. Thompson, one of the defendants, for her sole and separate use. Mrs. Thompson rented the land to various persons up to about the year 1895, and collected the rents therefor. About the year 1895 she, with her husband and children, moved upon the land, and have occupied and resided there ever since. The land in controversy was in the possession of Shepherd until he sold to Kirk, was in Kirk until his death, and was in the possession of Mrs. Thompson and her tenants up to the time of the bringing of this suit. John B. Thompson, her husband, and one of the defendants, has occupied the farm with her ever since they moved there in 1895, but he states in his separate answer that he has no interest in the land in controversy except as the tenant of his wife, Eva K. Thompson. The evidence, however, fails to show that she ever at any time rented the land to him. The "south forty" has been assessed to Mrs. Thompson and the taxes paid by her ever since it was willed to her, and the "north forty" has been assessed to Michael Guyer and the taxes paid by him from 1872 until this suit was brought. In February, 1904, Michael Guyer sold the "north forty" to the plaintiffs, and executed a deed conveying the same to them.

All of the foregoing facts are practically undisputed, and the evidence for plaintiffs tended to prove that the plaintiff John M. Baker went to the defendant John B. Thompson and told him of his purchase, and requested him to show to him the line running east and west between the south and north 40's, and that in pursuance to that request Thompson went down to the land and pointed out to Baker its location. This, however, was denied by Thompson. Soon after this Baker moved the fence back on the true line dividing the north and south 40, leaving the land in the northeast corner of the "south forty" in Thompson's inclosure, and put back the land in controversy in Baker's inclosure. At the time Shepherd sold to Kirk he told the latter of the arrangement between him and Guyer regarding the occupancy of the two small tracts of land, and that the understanding was that either of them could, at will, move the fences back on the true line. The great weight of the evidence shows that John B. Thompson knew of this arrangement, and many facts and circumstances from which it might be reasonably inferred that Mrs. Thompson also knew of it, though each of them deny all knowledge of the said arrangement. Her brothers and all other parties interested in the premises knew of it. The evidence also tended to show that John B. Thompson was the agent of his wife in looking after and managing her farm, and that practically all of the possessory acts performed upon the land in suit were performed by him. He looked after the fences and water gaps and repaired them whenever necessary, and by permission from Guyer he broke up and put in cultivation the land in question. The record fails to show that Mrs. Thompson personally performed any acts indicating ownership of this land, except to take and hold the possession of the entire tract as inclosed when she acquired title to the "south forty" through her father's will. The evidence for Mrs. Thompson tended to show that she had no knowledge whatever of the existence of the arrangement between Shepherd and Guyer regarding the land in controversy.

Whatever additional facts may be necessary for a proper understanding of the case will be stated in the opinion.

F. B. Ellis, for appellants. W. S. Herndon and E. C. Hall, for respondents.

WOODSON, J. (after stating the facts as above).

1. The cause was submitted to the jury on the theory that if they found from the evidence that Mrs. Thompson and her father, William Kirk, had notice of the arrangement made between Shepherd and Guyer regarding the land, then the appellants must have by some unequivocal act brought to the knowledge of Guyer that they claimed the land as their own before the statute of limitations would begin to run against the respondents; and that if they believed John B. Thompson was the agent of his wife in the management and control of the land, then notice to him would be notice to her.

It is first insisted...