Bass v. Rounds

• Court: Missouri Court of Appeals
• Writing for the Court: SATZ; SMITH, P.J., and CARL R. GAERTNER
• Citation: Bass v. Rounds, 811 S.W.2d 775 (Mo. App. 1991)
• Decision Date: 28 May 1991
• Docket Number: No. 58372,58372
• Parties: Lougene BASS, Plaintiff-Appellant, v. Leroy and May ROUNDS, Defendants-Respondents.

Page 775

811 S.W.2d 775

Lougene BASS, Plaintiff-Appellant, v. Leroy and May ROUNDS, Defendants-Respondents.

No. 58372.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 28, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied June 19, 1991.

Martin M. Lipsitz, St. Louis, for plaintiff-appellant.

Theresamar Mantese, St. Louis, for defendants-respondents.

SATZ, Judge.

This is a partition action. Plaintiff, Ms. Lougene Bass (Ms. Bass), requested the trial court to partition the real property in question, which she allegedly held as a tenant in common with defendant Mr. Leroy Rounds (Mr. Rounds). Ms. Bass joined Mr. Rounds' wife, Mrs. Mary Rounds (Mrs. Rounds), as a co-defendant as well as Farmers Savings Bank, a previous holder of a security interest in the property. Mr. and Mrs. Rounds counterclaimed, ¹ requesting the court to quiet title in them on the grounds of adverse possession. Following trial, the court made Findings of Fact and Conclusions of Law and quieted title in Mr. Rounds on the grounds that he had acquired title from Ms. Bass by adverse possession and that she was equitably estopped from asserting title. Ms. Bass appeals. We reverse and remand.

We review this court-tried case under the well known principles established by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) and Rule 73.01(c). We defer to the credibility determinations made by the trial court, and we accept as true the evidence and permissible inferences favorable to the prevailing party, Mr. Rounds, and disregard contrary evidence and inferences. E.g., Snowden v. Gaynor, 710 S.W.2d 481, 483 (Mo.App.1986). So viewed, the record supports the Findings of Fact made by the trial court.

Ms. Bass and Mr. Rounds began living together sometime prior to June 7, 1973. On or about that date, they purchased a house in St. Louis. They represented themselves throughout the purchase as "Leroy Rounds and Lougene Rounds, his wife."

The purchase price of the house was $17,750. They each contributed $450 to the down payment. They borrowed the remaining $16,850 by executing a promissory note and deed of trust as "Leroy Rounds and Lougene Rounds, his wife." Although, at that time, Ms. Bass was married to someone else, she and Mr. Rounds each testified they intended to marry one another, but they never did.

Ms. Bass vacated the house sometime in June 1974, after a violent altercation. After some unsuccessful pleas to get her to return, Mr. Rounds changed the locks on the doors. He has lived in the house continuously since then.

Mrs. Rounds has lived in the house since 1980. She and Mr. Rounds were married in 1984. Mr. Rounds and/or Mrs. Rounds have made all payments on the note since Ms. Bass left the house in 1974. Ms. Bass made none. Mr. Rounds paid for the insurance on the house and paid the taxes, as well as paying for maintenance of and improvements to the house. As of the date of trial, Mr. Rounds had made the following contributions to the purchase and maintenance of the house: $450 toward the down payment, $25,491.75 principal and interest payments on the note, $6,703.12 taxes and insurance, and $1,350 for improvements, totalling $33,994.87. The only cash contribution made by Ms. Bass was her $450 toward the down payment.

After Ms. Bass left the house in 1974, she and Mr. Rounds had occasional social contact but discussed the house only twice. In 1982, he phoned her and requested her to "[get] her name off the deed." She refused. He asked her again in 1984. This time she demanded $10,000 to do so. He refused to pay this amount.

Then, in 1988, she filed the present partition action. Mr. and Mrs. Rounds filed a two count counterclaim, seeking, in Count I, to have title quieted in them on the grounds that Ms. Bass contributed only $450 to the purchase of the house, and, in Count II, claiming title by adverse possession.

On the facts previously recited, the trial court concluded Ms. Bass and Mr. Rounds initially owned the house as tenants in common, and, apparently, based solely on their respective cash contributions to the purchase of the house, the court also concluded that any presumption they held equal interests would be rebutted by their unequal contributions. At best, the court concluded, Ms. Bass would be entitled to no more than the return of $450, her contribution, from the proceeds of a partition sale.

However, the court concluded that Mr. Rounds acquired the entire title by adverse possession and, therefore, quieted title in him. The court also stated that Mr. Rounds was entitled to have title quieted in him under the doctrine of equitable estoppel, although that relief was not sought under that doctrine.

On appeal, Ms. Bass challenges the court's conclusions that Mr. Rounds acquired sole title by adverse possession and that she was estopped from asserting title. She also attacks the method used by the trial court to determine her interest in the property, if her interest is to be based upon the parties' relative contributions to the purchase of the property.

The trial court's conclusions concerning adverse possession and equitable estoppel are not supported by its Findings of Fact; and its method of determining the relative interests of the parties is erroneous.

Adverse Possession

To prove adverse possession, the party claiming it must show that his possession was 1) actual; 2) hostile; 3) open and notorious; 4) exclusive; and 5) continuous for the 10 years required by § 516.010, R.S.Mo.1986. Walker v. Walker, 509 S.W.2d 102, 106 (Mo.1974). Possession must be open and notorious because it gives the true owner cause to know that an adverse claim of ownership is being made by another. Porter v. Posey, 592 S.W.2d 844, 849 (Mo.App.1979). The determination of openness and notoriety centers on whether the particular acts in question are acts of ownership and are sufficient to give the existing owner notice of the claim being made. Id.

However, some "acts of ownership" on the part of one co-tenant are not necessarily inconsistent with the continued ownership of the other co-tenant. A tenant-in-common is presumed to hold possession for his co-tenants. Mann v. Mann, 353 Mo. 619, 183 S.W.2d 557, 558 (1944). To overcome this presumption, he must show acts which constitute a disseizin or a repudiation or a denial of the rights of his co-tenants, which show an intention to hold adversely to the co-tenant, and which are totally irreconcilable with a recognition of the rights of the co-tenant. Id. Thus, in Mann, supra, the claimant repeatedly told his neighbors he was the sole owner of the farmland in question, in addition to farming the land exclusively for many years. Id. 183 S.W.2d at 559. In Replogle v. Replogle, 350 S.W.2d 735 (Mo.1961), the co-tenant claiming title by adverse possession showed he had lived on and improved the land as his own for several years, paying all expenses. But, more important was the fact he had previously administered his co-tenant's estate after the statutorily presumed death of the co-tenant. The claimant initiated the estate proceedings in order to remove his co-tenant's interest; thereafter, he represented himself as the sole owner. Id. at 739. Likewise, in Hunter v. Hunter, 261 Mo. 799, 237 S.W.2d 100 (1951), one brother administered the estate of the other, who was serving a life sentence in prison, under the civil death statute. He then administered his parents' estates, declaring himself to be their sole heir, and taking sole possession of the real estate. The court held these acts to be overtly hostile and sufficient to give constructive notice of the claim; it also found the co-tenant in prison had actual notice of the other's hostile claim. Id. 237 S.W.2d at 102.

Simply stated, to prevail, the co-tenant claiming adverse possession must prove not only acts consistent with his ownership but acts unequivocally inconsistent with the ownership of his co-tenants. Such acts are necessary to provide notice that his possession is hostile to the interests of his co-tenants.

Mr. Rounds failed to show such acts here. He did prove he lived in the house exclusively and continuously for 17 years, paying taxes, insurance, and utilities, making mortgage payments, and repairing and improving the property. However, even when the contesting parties are not co-tenants, such acts are not sufficient to support a claim of adverse possession. See, Pahler v. Schoenhals, 234 S.W.2d 581, 582 (Mo.1950). Certainly, they would not be sufficiently unequivocal to support a co-tenant's claim of adverse possession. Quite simply, here, these acts are equally consistent with Mr. Rounds taking exclusive possession with the unstated permission of Ms. Bass, his co-tenant, and also equally consistent with his paying obligations to protect his interests in the property.

Admittedly, Mr. Rounds did change the locks on the door. But, subsequently, he twice asked Ms. Bass to "get her name off the house," and then dropped the matter when she named a price too high. This is a clear recognition of Ms. Bass's ownership rights. Mr. Rounds failed to show that his possession was hostile, Mann, supra, at 558. And, therefore, the trial court erred in concluding he acquired sole title by adverse possession.

Equitable Estoppel

The trial court also stated that Ms. Bass was equitably estopped from asserting title. This is an erroneous statement.

Mr. and Mrs. Rounds did not plead estoppel as an affirmative defense in their answer, nor, understandably, did they attempt to assert it as an affirmative claim for relief in their two count counterclaim. Moreover, there is nothing in the record to show this issue was tried by implied consent. See, e.g. Buchanan v. Mitchell, 785 S.W.2d 317, 319 (Mo.App.1990). Nonetheless, on appeal, the parties address this issue as if it were tried. We likewise do so.

To support estoppel, there must be a representation made by the party estopped and relied upon by another party who...