Baker v. Thompson
| Decision Date | 25 November 1908 |
| Citation | 114 S.W. 497,214 Mo. 500 |
| Parties | JOHN M. BAKER et al. v. EVA K. THOMPSON et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.
Affirmed.
F. B Ellis for appellants.
(1) The court erred in permitting conversation to be introduced in evidence of John B. Thompson concerning the boundary lines of his wife's farm in her absence. These conversations were prejudicial and improper. The conversation of third parties of the husband concerning the title of his wife's land or the possession thereof are never admissible against the wife in a suit for the possession of her lands. John B. Thompson was the codefendant of his wife, artistically made so by ingeniousness of plaintiffs' counsel. And the admissions of a party to a suit confessing away the title of his codefendant are never admissible against his codefendant for that purpose. The conversations of Thompson with Shepherd Guyer and Baker were in the absence of Mrs. Thompson. Hambright v. Brockman, 59 Mo. 57; Darrett v Donnelly, 38 Mo. 492. No declarations of John B. Thompson concerning his wife's land could bind her even while he was living on the premises with her. Even his deed could not have affected her. Certainly he could not do by conversations with third parties what he could not do by deed. Fox v. Windes, 127 Mo. 512; Mueller v. Kaessmann, 84 Mo. 318; Lemons v. McKinney, 162 Mo. 530. (2) Plaintiffs' cause of action was and had been for many years barred by the Statute of Limitations. She knew nothing of the arrangements of Shepherd, Guyer, Kirk and others. She went into the possession of this land claiming to own the same since July, 1887. Her possession according to the undisputed evidence was adverse to all the world. She used this piece of land in connection with the rest of her farm. Adverse possession will entitle the defendants to a title. Warfield v. Lindell, 38 Mo. 562; Scruggs v. Scruggs, 43 Mo. 142; Fugate v. Pierce, 49 Mo. 441; Musick v. Barney, 49 Mo. 458; Key v. Jennings, 66 Mo. 367.
W. S. Herndon and E. C. Hall for respondents.
(1) The possession of defendant was a continuation of the possession of Kirk, her father, and Kirk's possession was a continuation of the Shepherd possession of the four-acre tract, and consequently defendant held all the time under the agreement made with Guyer, the original owner, and could not become adverse without an unequivocal act of hostility thereto brought home to Guyer. Hamilton v. Boggess, 63 Mo. 233; Budd v. Collins, 69 Mo. 129. (2) There was a privity of estate and in law between defendant and Kirk in respect to the possession of the land in controversy. Wash. on Real Prop. (3 Ed.), p. 263; 23 Am. and Eng. Ency. Law (2 Ed.), 101; State ex rel. v. St. Louis, 145 Mo. 567; Haley v. Bagby, 37 Mo. 364; Meier v. Meier, 105 Mo. 432; Hurt v. Adams, 86 Mo.App. 80; Pitzman v. Boyce, 111 Mo. 392. (3) The possession of the land in controversy by Shepherd was with the consent of the owner, Michael Guyer. Shepherd sold to William Kirk, who took possession under Shepherd. Kirk died in possession and his daughter, Mrs. Thompson, and her husband went into possession under the will of her father. The possession was friendly at its inception and with the consent of the owner and in order to render the possession adverse, the party in possession must, by some unequivocal act, notify the owner that he holds adversely. Neither Shepherd, Kirk or either of the Thompsons ever notified Guyer that they claimed the land, and the verdict is for the right party. Gordon v. Eans, 97 Mo. 112; Handlan v. McManus, 100 Mo. 124; Meier v. Meier, 105 Mo. 411; Downing v. Dinwiddie, 132 Mo. 92; Hunniwell v. Adams, 153 Mo. 440; Stevenson v. Black, 168 Mo. 549; McCune v. Goodwillie, 204 Mo. 339; Coberly v. Coberly, 189 Mo. 16; Comstock v. Eastwood, 108 Mo. 41; Harper v. Morse, 114 Mo. 324. (4) The relation of landlord and tenant will not be inferred from occupation, if the relative positions of the parties to each other can be referred to any other distinct cause. Taylor, Landlord and Tenant (9 Ed.), sec. 25; Constant v. Abell, 26 Mo. 181; Coffman v. Hach, 24 Mo. 496. In this case the possession of Shepherd, Kirk and Thompson was that of licensee, determinable by a mere demand, and ejectment will lie without notice to quit. Taylor, Landlord and Tenant (9 Ed.), sec. 25. (5) The wife being sui juris, as to the land received from her father by will, could appoint an agent therefor. McFarland v. Heim, 127 Mo. 334; Turner v. Sham, 96 Mo. 28; 6 Ency. Ev., p. 864. (6) Agency may be proved by circumstantial evidence. 10 Ency. Ev., p. 21; Cusno v. Bowser Mill Co., 106 Mo.App. 236; Mosby v. McKee, 91 Mo.App. 500; Haubert v. Rea & Page Mill Co., 77 Mo.App. 672; Sharp v. Knox, 48 Mo.App. 169; Robertson v. Clevinger, 111 Mo.App. 622; Hull v. Jones, 69 Mo. 587; Hoppe v. Saylor, 53 Mo.App. 4; Johnson v. Hurley, 115 Mo. 513. (7) Defendant, John B. Thompson, says in his answer that he is in possession of the land as the tenant of his wife. The evidence fails to show the existence of the relation of landlord and tenant, but it does show that he was in possession as the husband of his codefendant, Eva K. Thompson. This he had a right to under the law. She could only gain title by adverse possession, while they lived together, by his possession, and notice to him would, of itself, be notice to her -- if any notice was required. Evans v. Kunz, 128 Mo. 679; Flesh v. Lindsay, 115 Mo. 1; Peck v. Lockridge, 97 Mo. 549; Mueller v. Kaessmann, 84 Mo. 318; Gray v. Dryden, 97 Mo. 106; Kanaga v. Railroad, 76 Mo. 214.
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 ten-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.
[SEE PLAT IN ORIGINAL]
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 forties. 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 forties 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 forties, and...
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