Barnett v. Hastain.

• Decision Date: 03 December 1923
• Docket Number: No. 23637.,23637.
• Citation: 256 S.W. 750
• Parties: BARNETT v. HASTAIN.
• Court: Missouri Supreme Court

256 S.W. 750

BARNETT v. HASTAIN.

No. 23637.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from Circuit Court, Henry County; C. A. Calvird, Judge.

Action by Elizabeth H. Barnett against Stone Hastain. Decree for defendant, and plaintiff appeals. Affirmed.

G. W. Barnett, of Sedalia, for appellant. C. A. Calvird, Jr., and Jas. A. Parks, both of Clinton, for respondent.

Statement.

RAILEY, C.

The plaintiff commenced this action in the circuit court of Henry county Mo., on July 15, 1921, and the defendant appeared by counsel and filed an answer. Thereafter, on December 3, 1921, plaintiff filed her first amended petition, alleging therein that she was the absolute owner and in possession of the following described real estate situate in Henry county, Mo., to wit:

"All that part of the southwest quarter of section 11 lying east of the branch, containing 120 acres, except the north 54 acres conveyed to Howard Clark, by recorded deed. Also the north half of the north half of the northwest quarter of section 14, all in township 43, range 25, all situate in said county of Henry."

She alleges that she was in the exclusive possession of said property for more than 10 years before the commencement of this suit, claiming title thereto against all the world, and paying the taxes thereon. She avers that defendant claims some title, estate, and interest in said real estate. Her petition then concludes by praying tie court to ascertain and determine the interest of defendant in said land, and to adjudge the title thereto to be in her. She also asked for general relief.

Defendant, in his answer to said amended petition, denied that plaintiff was the sole owner of said real estate, and denied that she was in possession of same as sole owner, but avers that she was in possession as tenant in common with defendant, under the agreements and conditions thereafter set forth in the second count of said answer. He denies that plaintiff has been in the adverse possession of said land, claiming title thereto, for 10 years before the commencement of this action. He admits, that he claims title and an interest in said land, as set forth in the second count of this answer. The latter then denies each and every other allegation in said amended petition.

In the second count of said answer the defendant alleges, in substance, that his father, Thomas J. Hastain, who was the husband of this plaintiff, died in Henry county, aforesaid, the owner and in possession of said land; that he left a will, wherein said real estate was devised to plaintiff as his widow, and to this defendant as his only child and sole heir at law, share and share alike, with the further provision in said will that, if defendant should die without issue, then all of said real estate should go to plaintiff in fee simple; that plaintiff, under the name of Elizabeth Hastain, was appointed and qualified as executrix of her husband's will, and took possession of said real estate, under the terms and provisions of said will, and administered upon the estate of said Thos. J. Hastain, deceased; that in said will testator gave to his executor the power to sell the northwest quarter of the northeast quarter of section 14, township 43, range 25, or any part thereof, for the purpose of discharging his indebtedness, but did not give her any authority to sell or incumber said real estate for the payment of debts; that after the death of testator, and during the pendency of said administration, plaintiff reported to defendant that the last described tract had been sold to pay off indebtedness that incumbered the land of testator, but that said indebtedness did not include all the debts or costs of administration, and that further means would be needed on that account; that by reason thereof she desired authority to sell sufficient of the real estate to pay off the same, although said power had not been given by said will; that thereupon, about May 18, 1908, plaintiff and defendant ?altered into a written agreement concerning the real estate owned by testator, under which plaintiff would remain in possession of said real estate, and, in case the proceeds and income should not be sufficient to discharge testator's indebtedness, the plaintiff should have authority to sell and dispose of so much of said real estate owned by testator at the time of his death, as might be needed to pay off the indebtedness and the costs of administration of said estate, and that said will should remain in force, with the provision that after the debts were paid the plaintiff and defendant were to each own an undivided half interest in fee simple in the real estate owned by testator at the time of his death; that said contract was signed by plaintiff and defendant, and acknowledged by them on May 19, 1908; that said contract was duly recorded upon the deed records of Henry county, Mo., one copy of same being in possession of plaintiff; that thereafter plaintiff represented to defendant that there was not sufficient means to pay off said indebtedness, and that it would be necessary to secure the amount needed for that purpose by a deed of trust loan on said real estate or a portion thereof; that plaintiff and defendant borrowed of the Bank of Calhoun $2,000, which plaintiff said was necessary for said purpose, and gave their deed of trust on said real estate securing said indebtedness, which was duly recorded in Henry county aforesaid; that said $2,000 was paid over to plaintiff as executrix aforesaid for the purposes of paying said debts; that said executrix thereafter made final settlement of said estate, in which she charged herself with the amount of said loan, and on final settlement there remained in her hand as executrix the sum of $169.15; that it was understood and arranged between plaintiff and defendant that she would rent said real estate, and apply the proceeds thereof to the payment of said deed of trust, until it was paid, first paying out of the rents and profits the taxes on said land, and for necessary and reasonable repairs; that plaintiff had thus retained control of said premises, and has rented the same, but never rendered any account of the amounts of rents and profits received by her; that plaintiff knew where defendant resided, corresponded with him, and never at any time gave him notice that she claimed to be in possession of said land adversely to defendant; that he never had any notice of any adverse holding by plaintiff prior to the commencement of this suit; that her possession has only been that of a tenant in common with defendant, under the terms of said will and the contract aforesaid; that plaintiff, desiring to withhold notice of this suit from defendant, had the order of publication against " him as a nonresident of the state, published in a weekly newspaper at Urich, a town of 500 inhabitants, instead of having same published at Windsor, a town of 2,500 inhabitants.

The trial judge in his finding of facts, recites, that defendant had filed a dismissal of that part of his answer asking for an accounting. The answer, absent the above averment hi regard to an accounting, concludes by asking the court to determine defendant's title to be that of an undivided half interest in the real estate in controversy as tenant in common with plaintiff.

The reply was a general denial of the new matter pleaded in the answer.

A jury was waived, and the cause tried before the court on December 3, 1921. Plaintiff, under the provisions of section 1402, S. 1919, requested the court to make a finding of facts. Evidence was offered in behalf of both plaintiff and defendant. The court, after hearing the evidence and arguments of counsel, took the case under advisement, and thereafter made and filed with the circuit clerk its finding of facts before entering judgment, and on January 12, 1922, found the issues in favor...