Belfast Investment Company v. Curry
| Decision Date | 30 March 1915 |
| Parties | BELFAST INVESTMENT COMPANY, Appellant, v. CATHERINE CURRY et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. W. O. Thomas, Judge.
Affirmed.
New & Krauthoff, P. E. Reeder and Maurice H. Winger for appellant.
(1) The unassigned dower interest of Mary E. Barrel, formerly Mary E Griffin, in the property in question, as the widow of Thomas Griffin, passed by quitclaim deed from her to John Bing and from John Bing to the plaintiff. Sec. 346, R. S. 1909; Phillips v. Presson, 172 Mo. 24; Rohrer v Oder, 124 Mo. 24; Chrisman v. Linderman, 202 Mo. 615. (2) The widow's unassigned dower interest in the premises in question is not barred by the Statutes of Limitation. Robinson v. Ware, 94 Mo. 678, 688; Sherwood v. Baker, 105 Mo. 477; Null v Howell, 111 Mo. 273; Harrison v. McReynolds, 183 Mo. 533; Brewing Company v. Payne, 197 Mo. 431; Chrisman v. Linderman, 202 Mo. 615; Johns v. Fenton, 88 Mo. 64. (3) Neither the Act of March 22, 1887, as originally passed, nor the amended Act of 1889, has any application in this case. Robinson v. Ware, 94 Mo. 683; Beard v. Hale, 95 Mo. 16; Long v. Stock Yards Co., 107 Mo. 304; Null v. Howell, 111 Mo. 273; R. S. 1889, sec. 6797; R. S. 1866, p. 749, sec. 32; Cranor v. School District, 151 Mo. 123; Stephens v. Bank, 43 Mo. 388; Paddleford v. Dunn, 14 Mo. 522; Laws 1887, p. 177, sec. 1; R. S. 1889, vol. 2, p. 2229; Walker v. Deaver, 79 Mo. 677; Kimmerly v. Insurance Co., 111 Mo. 206; Sherwood v. Baker, 105 Mo. 476; Mainwaring v. Lumber Co., 200 Mo. 732; Rice v. Fleming, 173 Mo. 49; State ex rel. v. Woodson, 128 Mo. 497. (4) The Statute of Limitation cannot be interposed as a defense by an heir claiming title under a deceased person in an action for dower by the widow of such deceased, or those claiming under such widow, or by tenants in common. Livingston v. Cochran, 33 Ark. 294; Down v. Allen, 78 Tenn. 652; Guthrie v. Owen, 18 Tenn. 339; Cockrell v. Curtis, 83 Tex. 105; Robinson v. Ware, 94 Mo. 687; Sutton v. Cassellege, 5 Mo. 111; Long v. McDow, 87 Mo. 197; LaPeyre v. Paul, 47 Mo. 586. (5) Defendants failed to prove that they, or any of them, had been in adverse possession of the premises for ten years immediately preceding the commencement of this suit. Dalby v. Snuffer, 57 Mo. 294; Ivy v. Yancey, 129 Mo. 501; Robinson v. Clagett, 149 Mo. 153; Johnson v. Pruitt, 32 Mo. 553. (6) The dower interest of the widow, Mary E. Barrell, formerly Mary E. Griffin, in the premises in question was not abandoned by her and her title was not divested by any act on her part shown in evidence. Putnam v. Tyler, 17 Pa. St. 585; Barrett v. Coal Co., 70 Kan. 665; Kreamer v. Voneida, 62 A. 518; Norman v. Corbley, 79 P. 1059; Sharkey v. Candiana, 85 P. 219; Hoffman v. Bell, 61 Pa. St. 444; Bear v. Dewart, 95 Pa. St. 72; Coal Co. v. Wiggin, 68 F. 446; Philadelphia v. Riddle, 25 Pa. St. 259; Bramwell v. Adams, 146 Mo. 70; Trust Co. v. Horn, 83 Mo.App. 114; Petring v. Christer, 90 Mo. 649; 16 Cyc. 732.
A. N. Adams and Scarritt, Scarritt, Jones & Miller for respondents.
(1) Plaintiff's action is barred by the act entitled, "Dower; Time for Instituting Suit," Laws 1887, p. 177. R. S. 1889, sec. 6607; Harrison v. McReynolds, 183 Mo. 533. (2) Plaintiff's action is barred under Sec. 391, R. S. 1909. Callaway County v. Nolley, 31 Mo. 393; Seibert v. Copp, 62 Mo. 182; Tice v. Fleming, 173 Mo. 49; Cranor v. School District, 151 Mo. 119; Bick v. Robbins, 131 Mo.App. 670; Brewster v. Brewster, 32 Barb. (N.Y.) 429; Martin v. Martin, 35 Ala. 560; Sohn v. Waterson, 17 Wall. (U.S.) 596; Ross v. Duval, 13 Pet. (U.S.) 45; Lewis v. Lewis, 7 How. (U.S.) 776; Railroad v. Laramie Stock Yards Co., 231 U.S. 190. (3) Plaintiff's action is barred by the general Statute of Limitations applicable to real actions, being Sec. 1879, R. S. 1909, to the effect that "no action for the recovery of lands . . . shall be commenced . . . unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question within ten years before the commencement of such action." (a) Neither the plaintiff nor any of its predecessors were seized or possessed of the premises in question within ten years before the commencement of this suit. 4 Kent Com. (13 Ed.) 61; Brannock v. Magoon, 216 Mo. 722; Robinson v. Ware, 94 Mo. 678; Kennedy v. Duncan, 224 Mo. 662; 2 Scribner on Dower (2 Ed.), sec. 27, ch. 20. (b) Defendants and their predecessors have been in adverse possession of the property for more than ten years before the institution of this suit. The possession of the administrator was adverse to the widow in respect to her dower. R. S. 1909, secs. 367, 369, 372, 375. The possession of the heirs was adverse to the widow with respect to her dower. Conover v. Wright, 6 N.J.Eq. 613; Berrien v. Conover, 16 N. J. L. 107. (4) The widow's dower, if any existed, was extinguished and conveyed by the city tax deed to F. N. Phelps. He thereby acquired the fee simple title to the lot in question, and that title by mesne conveyances was well vested in the defendants. This tax deed preceded in time the quitclaim deed from the widow under which plaintiff claims and it follows that the defendants and not the plaintiff are the transferees of the widow's dower. Rohrer v. Oder, 124 Mo. 24; Kansas City Charter 1889, art. 5, sec. 62; Chrisman v. Hough, 146 Mo. 102; Jones v. Devore, 8 Ohio St. 430. (a) The widow is not a tenant in common or joint tenant in respect to her dower with the heirs of the deceased husband and the purchase of this lot from Phelps by Adams and the heirs did not inure to the use of the widow. McClanahan v. Porter, 10 Mo. 746; Walker v. Doane, 131 Ill. 27; Hamby v. Hamby, 165 Ala. 171; Long v. Stock Yards Co., 107 Mo. 298; Robinson v. Ware, 94 Mo. 678; 4 Kent Com. (13 Ed.) 61. (b) There was no fiduciary relation between Adams and the widow, nor was he under any obligations to her, and the purchase by him of an undivided one-half of this property and the conveyance of that interest by Phelps to him did not inure to the use of the widow.
Action to establish resulting trust; to recover dower in real estate; and for an accounting. Defendants had judgment below and the plaintiff appeals.
Before giving a resume of the pleadings we will recite a history of the title and possession of the real estate in controversy. On May 8, 1885, one Thomas Griffin died in Kansas City, Missouri, seized of the title to lot one in block three in McGee place, an addition to said city, which lot possessed a small rental value. Thomas Griffin left a widow and several brothers and sisters surviving him, but no lineal heirs. Neither he nor his wife ever occupied the lot in controversy as a home.
The widow of said Thomas Griffin married one Alfred Barrell in 1888, and located in Los Angeles, California, where she has ever since resided. Mrs. Barrell testified that shortly after the death of her first husband, Thomas Griffin, she expended $ 60 for improvements on the lot in controversy. She further testified that she then gave the title papers of the lot to her brother-in-law, William Griffin, with a request that he rent the property and look after it for her. William Griffin engaged one Donnelly to rent out the lot. In May, 1889, Donnelly turned the possession of the lot over to Fred C. Hey, public administrator, together with $ 86.50 collected as rent. Mr. Hey, formerly public administrator, testified that William Griffin was the only relative of Thomas Griffin living in Kansas City, his other collateral heirs residing in the East. That said William Griffin was very friendly to the widow, Mrs. Barrell, and expressed a desire that she should have the lot. Said William Griffin was dead at the time of the trial.
The administrator, Mr. Hey, made final settlement of the estate of Thomas Griffin in August, 1891. Said settlement showed that on July 1, 1891, he paid $ 100 of said rents to the widow, Mrs. Barrell. At the close of his administration he turned over the possession of the lot to one George Kumpf, together with a balance in his hands, amounting to $ 66.08. The settlement indicates that he did not while administrator receive any moneys, except rents from the lot in controversy, together with the amount turned over to him by Mr. Donnelly. No exceptions were filed to his final settlement.
It does not appear that Kumpf had any lawful authority to assume control of the lot. He says he took charge of the lot and the $ 66.08 balance in the hands of the administrator because the administrator was in trouble and he (Kumpf) having signed his bond did not want him to get in any deeper. Mr. Kumpf continued to collect rents on the lot in controversy until about 1905 or 1906, when, upon the advice of his attorney, he paid such rent over to the "heirs of Thomas Griffin." He did not know, or could not remember, who those heirs were, but understood that the amount he paid ($ 394) was needed to purchase or extinguish some tax claims outstanding against the property. Mr. Kumpf further testified that he was under the impression that one Almena A. Archer pretended to be agent for the Griffin heirs. Mrs. Archer was not sworn. The evidence indicates that for several years she rented the property from Kumpf, but there is nothing in the record by which her agency for the Griffin heirs or the widow of Griffin was satisfactorily proven.
Taxes were allowed to become delinquent on the property in controversy for the years 1899 and 1901, for which tax deeds were issued by the treasurer of Kansas City to one F. N Phelps, dated November 11, 1903. A tax deed was also issued on October 27, 1903,...
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