Case v. Sipes

Citation280 Mo. 110,217 S.W. 306
Decision Date04 December 1919
Docket NumberNo. 20452.,20452.
PartiesCASE et al. v. SIPES et al.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Wm. H. Case and others against Harry Sipes and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

This is an action of ejectment brought by plaintiffs in the circuit court of Andrew county, Mo., on September 26, 1914, to recover possession of the northeast quarter of the southwest quarter of section 24, township 60, range 35, located in said county. Defendant Harry A. Sipes was the tenant in possession under the other defendants, and disclaimed any interest in the land. Mrs. Candice Leach, prior to her marriage with Thomas Leach, was the widow of Frederick Yenni, and, aside from Sipes, the other defendants are her children.

The answer of defendants, with part of the same stricken out by the trial court, left practically a general denial, and an assertion of title in defendants by adverse possession under the statute of limitations.

The case was transferred to Buchanan county circuit court, on the application of plaintiffs, and tried before the court without a jury and without instructions. The trial court found that plaintiffs Wm. H. Case, Samuel J. Case, and Mary I. Case are the legal owners of, and entitled to, the possession of an undivided ¾ interest in and to said land, and that the plaintiff Wakefield Elliott is the owner of, and entitled to, the possession of an undivided 7/32 interest in and to said lands, etc. Judgment in due form was rendered for respondents.

The evidence, and such other matters as may arise upon an inspection of the record, will be considered in the opinion.

Appellants in due time filed their motion for a new trial, which was overruled, and the cause appealed by them to this court.'

Booher & Williams and P. C. Breit, both of Savannah, for appellants.

Duvall & Boyd, of St. Joseph, and E. L. Moore, of Lamar, for respondents.

BAILEY, C. (after stating the facts as above).

1. As this is an action at law, and tried without instructions, the judgment of the trial court, if sustained by substantial evidence, is conclusive against appellants here, unless reversible error has been committed in the admission or rejection of testimony. Bingham v. Edmonds, 210 S. W. loc. cit. 885, 886, and cases cited; Boas v. Branch, 208 S. W. loc. cit. 86; Walker v. Roberts, 204 S. W. loc. cit. 18; Roloson v. Riggs, 274 Mo. loc. cit. 528, 203 S. W. loc. cit. 975; January v. Harrison, 199 S. W. loc. cit. 937; In re Lankford Estate, 272 Mo. loc. cit. 8, 197 S. W. 147. It therefore becomes necessary to consider the evidence, in connection with the law questions presented, in passing upon the foregoing question.

It was admitted at the trial that the title to the 40 acres in controversy emanated from the United States government by patent dated the 1st day of March, 1846, to Harrison McGlothling, of Andrew county, Mo. On July 15, 1843, the above patentee conveyed said land to John Terrell, of Savannah, Mo., in trust for the use and benefit of Frances Case, his sister-in-law, and the heirs of her body. The after-acquired title of patentee passed to the trustee. Wood v. Smith, 193 Mo. 484, 91 S. W. 85; Organ v. Bunnell, 184 S. W. loc. cit. 102, and cases cited. At the date 01 delivery of said trust deed Frances Case was married, and her husband died in 1887. She died in November, 1907.

On June 25, 1855, the above-named John Terrell, as trustee, conveyed said real estate to Wm. Brown for the expressed consideration of $400. There was no power of sale given to the trustee in the foregoing deed, nor does it contain any words creating an active trust. The deed from McGlothling to Terrell, as trustee, conveyed an estate in trust for Frances Case during her life, and cast the estate at her death to the heirs of her body, as remaindermen. Section 2872, R. S. 1909; Reed v. Lane, 122 Mo. 311, 26 S. W. 957; Utter v. Sidman, 170 Mo. 284, 2,85, 70 S. W. 702; Miller v. Ensminger, 182 Mo. 195, 81 S. W. 422; Charles v. White, 214 Mo. loc. cit. 201, 112 S. W. 545, 21 L. R. A. (N. S.) 481, 127 Am. St. Rep. 674; Cox v. Jones, 229 Mo. 53, 129 S. W. 495; Elsea v. Smith, 273 Mo. loc. cit. 412, 413, 202 S. W. 1071.

On February 7, 1908, respondents filed a suit in ejectment in the circuit court of Andrew county, Mo., against these same appellants and Wm. J. Goodman, the tenant of defendants, to recover possession of the land in controversy here. Defendants answered in said cause with a general denial. On November 17, 1908, the trial court found the issues for defendants in above cause, and plaintiffs therein appealed the case to this court. It is reported in 250 Mo. at page 112, 156 S. W. 698, and following.

The abstract of record filed in above case, containing all the evidence, pleadings, and proceedings therein, was offered and considered in evidence in this cause. The oral testimony in both cases is practically the same. In the former case the record shows that these defendants claimed title to said land through the deed from Terrell, as trustee, to Brown, as well as by adverse possession.

The court in banc, speaking through Commissioner Roy, in 250 Mo. at page 113, 156 S. W. at page 698, said:

"On June 25, 1855, John Terrell, as trustee for Frances Case, for the expressed consideration of $400 conveyed the land to William Brown.

"The defendants put in evidence a chain of title from William Brown to them, and the defendants and their predecessors in the title have been in the open, notorious, exclusive, and adverse possession since the date of the deed from Terrell to Brown, and defendants now claim title by adverse possession."

Appellants in the present case, after offering substantially the same oral evidence that was in the other case supra, then offered a deed from John R. Caldwell and wife to Frederick Yenni, dated February 17, 1880, conveying this land, for the purpose of showing color of title, as a basis for said adverse possession. In the former case the deeds to Caldwell, and from him to Yenni, were offered in evidence as a part of the record title, coming from the trustee, through William Brown to these defendants, as stated by Judge Roy, supra.

We have before us the abstract of record in the former case, which was offered in evidence in the present suit, and it contains the testimony of John R. Caldwell, in which he testified that he was the owner of this land about nine or ten months. He further testified:"

"Q. Well, you claimed to be the owner in fee? A. Why, certainly.

"Q. You sold it to Mr. Yenni, did you? A. Yes, sir.

"Q. And delivered the land and possession to him? A. Oh, yes; yes, sir." (Italics ours.)

This was a part of defendants' evidence, following their chain of record title from Brown to them.

These appellants likewise filed, in support of their motion for a new trial in this cause, the affidavit of John R. Caldwell, in which he states that he purchased this land from Thomas Jenkins and Mary F. Jenkins about January, 1879, and claimed to own it. The abstract in the former case shows that the deed to Thomas Jenkins, and the one from him to John R. Caldwell, were offered in evidence by these defendants as a part of their record chain of title from the trustee, Terrell, through William Brown, to appellants.

There was abundant evidence, therefore, before the trial court, tending to show that these defendants and their predecessors in title purchased and took possession of this land under and through their record chain of title from Brown to themselves. All of the deeds in defendants' record chain of title, from the trustee down, were placed of record, and imparted notice as to the origin of their title from the trustee.

The court in banc in the former case (250 Mo. loc. cit. 114, 115, 156 S. W. 698), with all the facts in both cases before it, between the same parties, concerning the same land, in the same kind of a case, held that defendants were trustees ex maleficio, and that the statute of limitation did not run against the cestui que trust; that "they took the legal title just as Terrell held it, as trustee for Frances Case during her life, with remainder to her bodily heirs." (Italics ours.)

It was the peculiar province of the trial court to pass upon the facts and determine the credibility of the testimony taken before it. The findings and judgment of the trial court is sustained by substantial evidence, and is conclusive against appellants on the record before us. In the former trial the court in banc, with all the facts before it, held that these same defendants were ex maleficio trustees, and occupied no better position than did Terrell, the' trustee. The trial court in this case had before it all the testimony in both cases, and hence was fully justified in reaching the same conclusion as that expressed by the court in banc in the former litigation.

2. The trial court was justified in finding from the record before us that the title which Terrell, as trustee, conveyed to Wm. Brown, passed, by mesne conveyances, to these defendants as successors in title; that they took possession of said land under their deed from John R. Caldwell, who claimed to be the absolute owner of same, in 1880, by virtue of his record title through the mesne conveyances aforesaid; that appellants' possession was referable solely to the title emanating from the trustee to Brown, and from the latter, through said mesne conveyances, to appellants.

We are therefore of the opinion that defendants, by their purchase from Caldwell, became, and continued as trustees en maleficio, and that the statute of limitations did not run in their favor against the cestui que trust. Elliott v. Machine Co., 236 Mo. 546, 139 S. W. 356; Case v. Goodman, 250 Mo. loc. cit. 114, 115, 156 S. W. 698.

The deed to Terrell, and the successive conveyances from him on down to appellants, were properly...

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