Buren v. Buren

Decision Date31 October 1883
Citation79 Mo. 538
PartiesBUREN v. BUREN et al., Appellants.
CourtMissouri Supreme Court

Appeal from Daviess Circuit Court.--HON. S. A. RICHARDSON, Judge.

AFFIRMED.

This suit was brought by Cosby Buren in October, 1865, against the defendants Eliza Buren and Mary Berry to divest title out of defendants and vest it in plaintiff, and a judgment was rendered for plaintiff in 1866. In February, 1880, this judgment was set aside on motion of defendant Eliza, for the reason that prior to the institution of the suit she had intermarried with and was then the wife of another Buren. When that judgment was set aside the plaintiff Cosby and her grantee, Ward, joined in an amended petition, and upon this the case was tried.

Shanklin, Low & McDougal for appellants.

Rush & Ewing for respondents.

EWING, C.

This was a petition in the nature of a bill in equity to divest the defendants of the title to certain land and vest it in the plaintiff Ward.

The petition states substantially: That on and prior to January 1st, 1855, the plaintiff Cosby Buren was the widow of ________ Buren, deceased, and was on the 29th day of May, 1855, occupying with her children the mansion house of her husband, and the plantation thereto belonging, no dower having been assigned to her out of his lands; that prior to the 29th day of May, 1855, she was desirous of entering, under the Graduation Act of the congress of the United States of America, approved August 4th, 1854, the land now in controversy for her own use and for the purpose of actual settlement and cultivation; that she then started with her son, James P. Buren, now deceased, to the United States land Office at Plattsburg, for the purpose of entering this land; that she became sick en route and was not able to go to the land office herself, but sent her said son on with an affidavit prepared under section 3 of the act mentioned, and with sufficient of her money to enter the land in her name, ($60) and pay all his expenses, and directed him to enter it in her name; that her said son went on to the land office, where the register in charge ruled that the affidavit sent was insufficient; and that the son then entered the land in his own name, with the money of his mother, intending to convey the same to her, and that thereafter the patent for said land was issued to said James P. Buren; that said James never claimed to own the land, and paid no taxes thereon, but that she paid all taxes, and in 1856 put a part of the land in cultivation; that the son James died April 30th, 1861, leaving the defendant Eliza, as his widow, and Mary C. Berry as his sole heir at law; that on December 23rd, 1873, said Cosby Buren sold and conveyed the land by warranty deed to the plaintiff Ward. Wherefore plaintiff says that James P. Buren held the title to the land last aforesaid in trust for said Cosby Buren, and prays that the title thereto be divested out of the defendants Mary C. Berry and Eliza P. Buren, and vested in James F. Ward.

The answer is a general denial, with the specific admissions: (1) That said James P. Buren died April 30th, 1861, leaving the defendant Eliza as his widow, the defendant Mary as his sole heir at law, and they have since intermarried with the other defendants. (2) That said James P. Buren, on the 29th day of May, 1855, entered the land in controversy; but denies that it was entered for or with the money or means of his said mother, and avers that the same was entered under the act of congress, commonly known as the Graduation Act,” paid for with his own money, and that he died seized in fee of said land. (3) That said Cosby, on December 23rd, 1873, attempted to sell and convey said land to said Ward. The answer then alleges that Ward purchased with full knowledge of the condition of the title, and knew that the same was in defendant Mary as the sole heir at law of the said James. The answer then states: That the alleged cause of action stated in plaintiff's said amended petition did not accrue within ten years next before the commencement of plaintiff Cosby Buren's original action herein; wherefore these defendants plead the lapse of time mentioned in bar of plaintiff's action herein.

The reply is simply a general denial of the new matter set up in the answer.

Upon the trial defendants objected to the introduction of any testimony under the petition in this cause, for the reasons, 1st, That the petition does not state facts sufficient to constitute a cause of action; 2nd, That the petition shows upon its face that the action is barred by the statute of limitation, and 3rd, That the petition shows upon its face that the land in question was entered by James P. Buren, under the Graduation Law of the congress of the United States, under the provisions of which he could not make an entry in his own name intending that it should accrue to the benefit of another, but could only make the entry for actual settlement and cultivation or for use of an adjoining farm. Which objections were overruled and defendants duly excepted.

Plaintiff's evidence, so admitted against the objection of defendants' counsel, tended to prove: That on the 29th day of May, 1855, said James P. Buren entered the land in controversy in his own name, and that a patent was thereafter issued to him therefor; that he entered the said land with the money of his said mother, Cosby Buren; that after said entry said James often declared that he had entered said land for the benefit of his said mother, and that he would convey the same to her; that at the time said land was entered said Cosby lived upon and occupied an adjoining farm, which had belonged to her late husband, and that the fencing of the home place extended on to the the land in controversy so as to include five or six acres in her inclosure; that in 1856 or 1857 they inclosed and there after cultivated eighteen to twenty-five acres more on the north side of the west forty of the tract in controversy and that in 1865 the plaintiff Ward, who then owned ad joining lands, arranged his fences so as to inclose the entire tract; that her equitable title and possession were acquiesced in and not disputed by said James in his lifetime; that she paid all taxes on the land until she sold to Ward; that Ward purchased with full knowledge of the condition of the title, and has since his purchase been in actual possession of the land.

The plaintiff having rested, the...

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