Cave v. Wells

• Decision Date: 11 April 1928
• Docket Number: No. 26423.,26423.
• Parties: ERNEST CAVE, Appellant, v. MELISSA WELLS.
• Court: Missouri Supreme Court

5 S.W.2d 636

ERNEST CAVE, Appellant, v. MELISSA WELLS.

No. 26423.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Christian Circuit Court. — Hon. Fred Stewart. Judge.

REVERSED AND REMANDED.

Page & Barrett and G. Purd Hays for appellant.

(1) As a general rule, oral partition is void under the Statute of Frauds. Yet, if it is followed by actual possession and that possession is continued for a sufficient length of time, it will ripen into an indefeasible title under the Statute of Limitations. Tiedeman on Real Property (3 Ed.) p. 256, sec. 193. (2) Partition, either under the statutes or by parol, must be between tenants in common. 1 Tiffany on Real Property, 701 (30); Petrie v. Reynolds, 219 S.W. 934; Gray v. Clements, 227 S.W. 111. (3) During the life of the life tenant no Statute of Limitations will begin to run against the remainderman. Wicoff v. Moore, 257 S.W. 474; Willis v. Robinson, 291 Mo. 650, 237 S.W. 1030; Hall v. French, 165 Mo. 430. (4) Possession of real estate based on an oral partition between a life tenant and a remainderman does not estop the parties. Where there is valid oral partition, one will not be estopped unless it clearly shows that the parties went into possession under such partition. Petrie v. Reynolds, 219 S.W. 934.

Farrington & Curtis for respondent.

(1) Oral partition between persons having interest in lands, accompanied by long continued possession, is binding on the parties and will be upheld by the courts. Edwards v. Latimer, 183 Mo. 610; Hazen v. Barnett, 50 Mo. 506; Sutton v. Parker, 119 Mo. 100; Pruett v. Warren, 87 Mo. App. 568; Elliott v. Delaney, 217 Mo. 29; Nave v. Smith, 95 Mo. 596. (2) Defendant and her daughter Tenny had such a joint interest in the land left by William McDonald as would be the subject of oral partition between them and long continued acquiescence therein by the parties is binding on all of them. Sutton v. Parker, 119 Mo. 100; Cochran v. Thomas, 131 Mo. 271. (3) While under our statute compulsory partition as between life tenants and remaindermen cannot be enforced, yet such partition may be had either by court proceedings or orally where all the interested parties consent thereto. Gray v. Clements, 227 S.W. 113; Carson v. Hecke, 222 S.W. 855. (4) The Statute of Limitations invoked in this case began to run against Tenny Cave in 1898, prior to her marriage and at the time of the oral division; having once commenced to operate, it continued after her death against the plaintiff, even though he was a minor, as there can be no tacking of disabilities. Del Hartie v. Edwards, 200 Mo. 246.

SEDDON, C.

This is a suit in which plaintiff (appellant) seeks the admeasurement and assignment of dower to defendant (respondent) in the west one-half of the northwest quarter of the northeast quarter of Section 5, Township 27, Range 20, in Christian County, Missouri, and that plaintiff be decreed to be the owner of the fee-simple title in said described land, subject to defendant's dower therein as so admeasured and assigned. Plaintiff is the grandson of defendant, and is the son and sole heir of Tennessee L. McDonald (referred to in the record herein as Tenny L. McDonald), a deceased daughter of defendant by a former marriage of defendant and William McDonald, who is the common source of title. William McDonald died intestate in the year 1886, and was survived by his widow, the defendant herein, and by one child and heir, Tennessee (Tenny) L. McDonald, the mother of plaintiff. At the time of his death, said William McDonald was the owner of forty acres, more or less, of land in Christian County, including the twenty (or, possibly, twenty-three) acres above described and now in controversy, and twenty acres adjoining the above-described land on the south and southeast, and described as the north one-half of the southwest quarter of the northeast quarter of Section 5, Township 27, Range 20, in Christian County. Tennessee L. McDonald, at the time of the death of her father, William McDonald, was about six or seven years of age. Within a year or two after the death of William McDonald, his widow, the defendant herein, married L.D. Wells, who is her present husband, and the daughter, Tennessee (Tenny) L. McDonald, was reared by her mother and step-father, Mr. and Mrs. Wells, and resided with them until she married. About 1898 or 1899, when Tennessee L. McDonald was nineteen years of age, she married Louis N. Cave. Tennessee (Tenny) L. Cave (nee McDonald) died intestate on March 18, 1908, and was survived by her husband, Louis N. Cave, and one child and heir, the plaintiff herein, Ernest Cave. So far as the record herein discloses, no administration was had upon the estate of William McDonald, or upon the estate of his daughter, Tennessee L. Cave.

The answer of defendant pleads, as an equitable defense to the petition, that "at the time of the death of the said William McDonald, he was seized and possessed of forty acres of real estate in Christian County, Missouri; that the real estate described in plaintiff's petition was one-half of the said land, and that the remainder of said forty acres lay south and southeast of said twenty (acres), joining the same, and was described as follows: the north half of the southwest quarter of the northeast quarter of Section 5, Township 27, Range 20; that the dwelling house of the said William McDonald was situated on the land last above described; that this defendant, his widow, and Tenny McDonald, his daughter, were the sole heirs at law of the said William McDonald; that some years after the death of said William McDonald, to-wit, on or about the year 1898, this defendant and Tenny McDonald, who later married Louis Cave, orally agreed upon a division between them of the real estate of which the said William McDonald was seized at his death; that it was then agreed between them that Tenny McDonald should have the land last above described as her own real estate, free of any claims of this defendant as the widow of William McDonald, whether by dower, or otherwise, and that this defendant should have the real estate described in plaintiff's petition as her own separate real estate, free from any claims of the said Tenny McDonald as an heir of the said William McDonald; that acting upon said agreement and oral division or partition, said Tenny McDonald immediately went into possession of the land last above described and remained in possession thereof until her death in 1908, and that her husband, Louis Cave, is now in possession thereof; that this defendant immediately and at said time went into possession of the real estate described in plaintiff's petition and has been in the undisputed, adverse, peaceable, notorious and uninterrupted possession of all of said real estate and claiming to own the same in fee simple from said date until the present time, and is now in possession thereof; that the said Tenny McDonald, during her lifetime, lived in the vicinity thereof and never made any claims thereto, but fully carried out said oral partnership by keeping and owning and enjoying the land last herein above described; wherefore, defendant says plaintiff is estopped to deny said agreement, and this defendant prays the court that said oral division or partition be by this court confirmed and affirmed, and that this defendant, by reason of the foregoing facts, be adjudged to be the owner in fee simple title of the real estate described in plaintiff's petition, and for such other and further relief as to the court may seem meet and proper." The answer also pleads the ten-year and twenty-four-year Statutes of Limitation as a bar to plaintiff's action. The reply denies generally the allegations of the answer.

The record discloses that defendant, Melissa Wells, and L.D. Wells, her husband, as grantors, on December 27, 1901, in consideration of the sum of $250 (so expressed in the deed) paid by T.L. Cave and L.N. Cave, her husband, as grantees, made, acknowledged, executed and delivered a general warranty deed, with express covenants of warranty, conveying to said T.L. Cave and L.N. Cave, her husband, all of the north one-half of the southwest quarter of the northeast quarter of Section 5, Township 27, Range 20 (the same being the twenty acres of land adjoining and lying south and southeast of the land now in controversy), which warranty deed was duly filed for record in Christian County on May 24, 1902. The said deed contains this paragraph or recital: "We, Melissa Wells and L.D. Wells, give to the said T.L. Cave as an advancement on her interest in our estate, either present or future, the sum two hundred and fifty dollars, it being the intention of the grantors herein to hold all of their estate that in present or future divisions the children of Melissa Wells, nee Melissa McDonald, and the children of L.D. Wells shall have equal shares in case any administration ever be had thereon, or settlement thereof made, and the said amount of two hundred and fifty dollars should be charged to the interest of the said T.L. Cave and her heirs. It is the intention of the grantors herein to deed an absolute `fee' estate without any limitations whatever to said grantees, T.L. Cave and L.N. Cave, her husband."

Respecting the alleged oral division or partition, by and between defendant and her daughter, Tennessee (Tenny) L. McDonald, of the forty acres of land owned by William McDonald at time of his death, the witness, L.D. Wells, present husband of defendant, testified: "I knew William McDonald. He died about thirty-eight years ago — about the year 1886. At the time of his death, he had one child by the name of Tennessee McDonald. At the time of his death she was about six or seven years old. His widow's name was Melissa. I afterwards married her, and she is now my wife. I married her about thirty-six or thirty-seven years ago. This child, Tennessee McDonald, came to my home from their home and left there when she was...