Benoist v. Thomas And Rothschild

• Decision Date: 14 May 1894
• Citation: 27 S.W. 609,121 Mo. 660
• Parties: Benoist et al. v. Thomas and Rothschild; Thomas, Appellant
• Court: Missouri Supreme Court

27 S.W. 609

121 Mo. 660

Benoist et al. v. Thomas and Rothschild; Thomas, Appellant

Supreme Court of Missouri, First Division

May 14, 1894

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Reversed and remanded.

Laughlin & Tansey and E. S. Robert for appellant.

(1) Appellant was entitled to a trial by jury. Constitution of Missouri, art. 2, sec. 28; R. S. 1889, sec. 7145; 4 Kent's Com., 412, and cases cited. (2) Equity would never decree a partition until title had been settled by a jury. 4 Kent's Com., 412, and cases. (3) The relation of landlord and tenant does not arise between a purchaser and the occupant, until the latter voluntarily attorns, or the purchaser exhibits his deed and demands an attornment. Gray v. Rogeos, 30 Mo. 258; Lindenbower v Bentley, 86 Mo. 515; Green v. Sternberg, 15 Mo.App. 32; May v. Luckett, 48 Mo. 472; May v Luckett, 54 Mo. 437; Gunn v. Sinclair, 52 Mo. 327; Kingman v. Abington, 56 Mo. 46; Clampitt v. Kelly, 62 Mo. 571; Sturgis v. Botts, 24 Mo.App. 282; Culverhouse v. Worts, 32 Mo.App. 419; Holden v. Wann, 43 Mo.App. 640. (4) Where the owner is in possession and a stranger acquires the title, the relation of landlord and tenant does not arise unless the former owner attorns. Kingman v. Abington, 56 Mo. 46; Cohen v. Kyler, 27 Mo. 122; Sturgis v. Botts, 24 Mo.App. 282. (5) Attornment can only be by word of mouth, or some act. 2 Coke on Littleton [1 Am. Ed.], book 3, chap. 10, sec. 551. (6) The relation of landlord and tenant is confidential, and an attornment to anyone without the landlord's consent is void, except in the cases mentioned in the statute, or where the landlord has parted with his title and the attornment is made to the person who has acquired such title. R. S. 1889, secs. 6373, 8843; Dausch v. Crane, 109 Mo. 323, 335; Farrar v. Heinrich, 86 Mo. 532; Clampitt v. Kelly, 62 Mo. 571; Bank v. Calvin, 60 Mo. 559; Stagg v. Eureka, 56 Mo. 317; Leach v. Koenig, 55 Mo. 451; McCartney v. Auer, 50 Mo. 395; Rutherford v. Ullman, 42 Mo. 216; Schultz v. Arnot, 33 Mo. 172. (7) A tenant can not lawfully attorn to the holder of the true title, even where his landlord is a trespasser or fraudulent grantee. Farrar v. Heinrich, 86 Mo. 521; Clampitt v. Kelly, 62 Mo. 571. (8) An attornment to the owner of the true title is void, even though the tenant maliciously conceals the fact that he is holding under a landlord who is a trespasser. Farrar v. Heinrich, 86 Mo. 521. (9) An attornment to an assignee of the landlord creates a new tenancy. 1 Taylor on Land. & Ten., sec. 442, and cases. (10) Two persons can not be in adverse constructive possession at the same time. 3 Washburn on Real Property, 118, sec. 9. (11) Knowledge of the true owner is not necessary to the acquisition of title by adverse possession. Wilkerson v. Eilers, 114 Mo. 245-254; Farrer v. Heinrich, 86 Mo. 521; Bowman v. Lee, 48 Mo. 335; Scruggs v. Scruggs, 43 Mo. 142; Walker v. Bacon, 32 Mo. 144; Draper v. Shoot, 25 Mo. 197. (12) "Any writing which purports to convey land and describes the same is color of title, though the writing is invalid and conveys no title." Allen v. Mansfield, 108 Mo. 344-348, and cases; Amick v. Brubaker, 101 Mo. 473.

Nathan Frank and C. W. Bates for respondent.

(1) A judgment lien expires in three years, and sale of real estate under an execution issued thereafter conveys no title as against the vendee of the judgment debtor who purchased prior to the issuance of the execution. Christy v. McKee, 94 Mo. 24; Christy v. Flanagan, 87 Mo. 670; S. C., 14 Mo.App. 253. (2) The doctrine of color of title can be invoked only when the claimant has actual adverse possession of a part of the property, claiming the whole by virtue of the void conveyance. Allen v. Mansfield, 108 Mo. 343. (3) Whether or not Gibbons or the bank assumed to pay this judgment is wholly immaterial to this case. The judgment was never enforced and the lien has long since expired. (4) Rothschild and his grantors were never out of possession and Mrs. Thomas was never in possession of the property in dispute. (5) The legal seizin and possession follows the legal title. Bradley v. West, 60 Mo. 33. (6) To divest of possession one in possession there must be actual ouster. Myler v. Hughes, 60 Mo. 105. (7) The attornment of a tenant to the grantee of his landlord is valid and will be presumed. 2 R. S. 1889, sec. 6373; Ass'n v. Wann, 43 Mo.App. 636; Cook v. Farrar, 105 Mo. 492; Lindenbower v. Bentley, 86 Mo. 515. (8) A tenant is bound to deliver possession to his landlord or his grantee, and can not hold adversely, or by agreement with another hold for him. Cook v. Farrah, 105 Mo. 492; Farrar v. Heinrich, 86 Mo. 521. (9) The attornment of the tenant to a stranger is void and does not transfer possession. 2 R. S., 1889, sec. 6373; Cook v. Farrah, 105 Mo. 492; Farrar v. Heinrich, 86 Mo. 521. (10) Attornment of the tenant, without the knowledge and consent of his landlord, to a stranger to the landlord's title, does not affect the landlord's possession. Farrar v. Heinrich, 86 Mo. 521. (11) The vendor can not claim adverse possession as against his vendee without actual ouster. Pents v. Keuster, 41 Mo. 447. (12) To convert a friendly possession, as in case of tenants in common, and landlord and tenant, into an adverse possession, the intention to make the change must be distinctly made known to the true owner. Meier v. Meier, 105 Mo. 411; Budd v. Collins, 69 Mo. 129; Campbell v. Laclede, etc., Co., 89 Mo. 352; Gordon v. Eans, 97 Mo. 587; Wommack v. Whitmore, 58 Mo. 448; Hamilton v. Boggess, 63 Mo. 233; Warfield v. Lindell, 38 Mo. 581; LaPeyre v. Paul, 47 Mo. 586; Freeman on Cotenancy, sec. 241. (13) The burden is on him who asserts title by adverse possession to prove all that is necessary thereto. Freeman on Cotenancy and Partition, sec. 222. (14) Adverse possession must be exclusive. A mixed possession is the possession of him who has title. Railroad v. Maffitt, 94 Mo. 56; Brownsville v. Cavazos, 100 U.S. 138; Brimmer v. Proprietors, 5 Pick. 131; Congregation v. Greenwich, 145 Mass. 112; Angell on Limitations, sec. 410. (15) Appellant was not entitled to a jury. 2 R. S. 1889, sec. 7148, et seq.; Earl v. Hart, 89 Mo. 263; Holloway v. Holloway, 97 Mo. 628; Sav. Inst. v. Colonius, 63 Mo. 290.

Barclay, J. Black, C. J., Brace and Macfarlane, JJ., concur.

OPINION

Barclay, J.

This is an action for the partition of a lot of land in St. Louis county. The plaintiffs are owners of one undivided half of the lot. To the other half, each of the two defendants asserts full title.

Mrs. Thomas by her separate answer sets up a title by adverse possession under the statute of limitations. Mr. Rothschild claims under a chain of recorded conveyances.

The facts shown at the trial court were these:

The property formerly belonged to one Rannells, who, in 1866, sold to Christy & Ryan, a firm composed of James Christy, ancestor of plaintiffs, and Thomas Ryan. The property was at first held in the name of Christy. James Christy and wife conveyed an undivided one-half of said property to Thomas Ryan, by deed, September 22, 1866. Years after, the widow of Rannells released her interest to Davitt, one of Rothschild's grantors, and also to Mrs. Thomas.

On the nineteenth day of May, 1876, Thomas Ryan and wife conveyed an undivided half of said lot (with other property) to John F. Gibbons, which deed was a general warranty deed, excepting as against a judgment (in favor of the legal representatives of Christy and others) rendered in the circuit court of the city of St. Louis against Thomas Ryan on the twenty-second day of November, 1875, and certain mortgages and taxes, and contained the following clause:

"The amount of all which liens, taxes and hypothecations have been computed between the parties hereto as part of the consideration of this deed, and the said Gibbons has purchased the property hereby conveyed for said sum of $ 28,000 in addition to and exclusive of the sum necessary for the hypothecations."

This deed was acknowledged and recorded May 20, 1876.

Mr. Rothschild traces his title from Mr. Gibbons, through several recorded conveyances which need not be particularly recited. The last of them (by which Mr. Rothschild became owner of the Gibbons title) is dated, July 27, 1888.

The judgment already mentioned against Thomas Ryan was for the sum of $ 11,626.83.

An execution was issued on said judgment on the thirteenth day of October, 1879, directed to the sheriff who, on the twenty-first day of October, 1879, levied upon Mr. Ryan's interest in said lot, and by virtue of said execution, sold said interest to defendant, Mrs. Thomas, for $ 205, November 24, 1879. The sheriff's deed was executed, January 13, 1880, and duly recorded, May 5, 1880.

Mrs. English, while Christy & Ryan owned the land in partnership, was placed in possession of the lot as a tenant of Christy & Ryan. She has remained in possession ever since, up to the date of the trial.

After the sheriff's sale to Mrs. Thomas, November 24, 1879, Mr. Ryan told Mrs. English that she should, from that time, be the tenant of Mrs. Thomas, and to pay the taxes in lieu of rent for her; and there is evidence tending to prove that Mrs. English assented to that arrangement.

When Mrs. English first went into possession as tenant of Christy & Ryan, she cleared and fenced the land in lieu of paying rent. Beginning with the year 1877, she paid the taxes on the disputed half.

Her acts as tenant constitute the chief ground for controversy in the present litigation. Mrs. Thomas claims that they prove an attornment to her, while Mr. Rothschild insists that they show only an intent to hold for the true owner.

The position of Mrs. Thomas is that she has acquired title by adverse possession, as...