Chapman v. Kullman
| Decision Date | 21 November 1905 |
| Citation | 89 S.W. 924,191 Mo. 237 |
| Parties | DELILA B. CHAPMAN et al. v. GEORGE F. KULLMAN et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Benton Circuit Court. -- Hon. W. W. Graves, Judge.
Affirmed.
D Brunjes and Barnett & Barnett for appellants.
(1) There has been no proof of any administration upon the estate of Amanda Brown and John W. Brown, neither has there been any proof that, in the absence of an administration, they left personal property sufficient to pay their debts. The action of partition cannot be maintained before administration of the decedent's estate or proof that there is sufficient personal property or other real estate not already partitioned to pay the debts. R.S. 1899, sec. 4384; Mills v. Mills, 141 Mo. 195; Tuppery v. Hertung, 46 Mo. 135. (2) There is no statutory presumption that Amanda Brown is dead. That presumption prevails where a party has gone from the State with the expectation or intent of returning, and the failure to return as intended for the period of seven years creates a presumption of death, but in this case she removed to the State of Texas to live, and no presumption of death arises from her failure to return. R.S 1899, sec. 265. It is the absence of a resident of the State for seven years which raises the presumption of death. Keller v. Stuck, 4 Bedf. 294; Francis v Francis, 180 Pa. St. 644; Wheelock v. Overshiner, 110 Mo. 100; 22 Am. and Eng. Ency. Law (2 Ed.), 1248. Here the only evidence of death is that Amanda Brown was about to return to Missouri from Texas, but that she was surrounded with yellow fever and people were dying from it like hogs. Her people, although they attempted to hear further from her, never succeeded in hearing from her again or of ever getting any response to their letters. If Amanda Brown is proven to be dead, the proof is that she died in 1884 and the descent of her estate was cast at that time -- at the time the guardian's deed was made for two of her brothers, who would be her heirs in case she died without issue, and the guardian conveyed to Brunkhorst not only what interest these minors had as heirs of John M. Brown, deceased, but also the interest that they acquired in Amanda Brown's estate. This being true, there is an outstanding interest in Brunkhorst, and for that reason this suit in partition cannot be maintained. A judgment in partition cannot be rendered where it appears that parties who are not before the court have an existing vested interest in the land which is the subject-matter of the suit. Hills v. Rule, 121 Mo. 248; Estes v. Nell, 108 Mo. 172; Dameron v. Jamison, 71 Mo. 97. If the evidence does not show that Amanda Brown died in 1884, then there is no competent evidence that she is dead at all, and in that event she would be a necessary party to this suit. (3) The undisputed evidence is that the defendant, at and for a long time prior to the institution of this suit, was in adverse possession of the real estate sought to be partitioned, that his possession was open and notorious, and his claim was hostile to the plaintiffs or any one else. He never in any way recognized their interest, but asserted his right to hold the premises, and under such circumstances the action of partition will not lie. The claimants must first establish their title in an action of ejectment where one is in possession of land asserting an exclusive title thereto. An action of partition cannot be maintained against him by one out of possession, who claims a common title thereto. Lambert v. Blumenthal, 26 Mo. 477; Estes v. Nell, 140 Mo. 639; Houston v. Houston, 139 Mo. 229; Forder v. Davis, 38 Mo. 107; Gott v. Powell, 41 Mo. 416; Shaw v. Gregoire, 41 Mo. 407; Haeussler v. Mo. Iron Co., 110 Mo. 188; Rozier v. Johnson, 35 Mo. 326. (4) Even were this a suit in ejectment, the plaintiff could not recover because the evidence shows that the defendant has a good title by limitation to the entire interest in this land. Warfield v. Lindell, 30 Mo. 272, 38 Mo. 561; Hoffstetter v. Blattner, 8 Mo. 276; Laseyre v. Paul, 47 Mo. 586; Peck v. Luckbridge, 97 Mo. 549; Rozier v. Johnson, 35 Mo. 326; Dunlap v. Griffith, 146 Mo. 283.
N. K. Chapman and Lay & Lay for respondents.
(1) Having failed to raise the question in the trial court in his motion for a new trial or otherwise, appellant cannot now for the first time insist that partition should not have been adjudged until administration was had upon the estates of Amanda and John W. Brown; but even if that question could be now considered, it is evident that there was sufficient evidence before the court to justify a finding that all debts had been paid, which of course is equivalent to a finding that there was sufficient personal property to pay the debts. The mere lapse of time without any step being taken to subject this land to the payment of debts, would be sufficient upon which to base such a finding. No case can be found where partition was refused on this ground unless it affirmatively appeared that there were outstanding debts. And the time allowed by law for the settlement of decedent's estate having elapsed, it will be presumed, nothing appearing to the contrary, that such estate has been settled. Minear v. Hogg, 94 Iowa 641. (2) Amanda Brown not having been heard from for seven years by those who, if she had been alive, would naturally have heard from her, is presumed to be dead. Flood v. Growney, 126 Mo. 262; Wheelock v. Overshiner, 110 Mo. 100; 1 Am. and Eng. Ency. Law (1 Ed.), 38. And neither section 265, Revised Statutes 1899, cited by appellant, but which does not apply to this case, nor section 3144, Revised Statutes 1899, changes the common-law rule as to presumption of death. Flood v. Growney, 126 Mo. 262; Winter v. Supreme Lodge, 96 Mo.App. 16; Wheelock v. Overshiner, 110 Mo. 113; Burr v. Sim, 4 Whart. 150; Lawson on Presump. Ev. (2 Ed.), 251. (3) It was not necessary for plaintiffs to recover possession of their one-sixth interest in the land by an ejectment suit before instituting this action. To make such a course necessary there must have been an actual ouster and denial of plaintiff's rights, as well as mere possession, since the possession of one tenant in common is presumed to be in behalf of all until facts amounting to an actual ouster are shown, and this can only be shown by proof of some notorious and unequivocal act asserting an entire ownership, and of which plaintiff must have actual or constructive notice. Colvin v. Hauenstein, 110 Mo. 575; Hutson v. Hutson, 139 Mo. 229; Rozier v. Griffith, 31 Mo. 171; Womack v. Whitmore, 58 Mo. 457; Shaw v. Gregoire, 41 Mo. 410. The question as to whether defendant was in adverse possession of the land was submitted to the court prior to the trial on the merits, and the finding was for the plaintiffs, and no exception having been saved to the ruling of the court, the question cannot be now reviewed. (4) Defendant not only was not in the adverse possession of the land at the beginning of the action, but there has at no time been such adverse possession of the land for any period of ten years, as would bar plaintiff's action. The evidence is conclusive that defendant, and those under whom he claimed, held this land by deeds which only purported to convey a five-sixths interest therein; and that this was the only interest claimed is shown by these deeds, by the will of Fred Kullman, and by the mortgages placed upon the land. And said will and four of said deeds were executed and recorded within less than ten years prior to the institution of this action. Under such facts plaintiff's title is not affected by the statute of limitation. Warfield v. Lindell, 30 Mo. 272, 38 Mo. 561; Benoist v. Rothchild, 145 Mo. 399; Campbell v. Laclede Gas Co., 84 Mo. 352.
This is an appeal from a decree of partition by the circuit court of Benton county, Missouri. The land is the southwest quarter of the southeast quarter, and the southeast quarter of the southwest quarter, of section fifteen, and the northwest quarter of the northeast quarter of section twenty-two, all in township forty-one of range twenty-one, containing 120 acres, more or less. The suit was brought to the August term, 1900, of the circuit court of Benton county, and trial was had and the judgment rendered in favor of plaintiffs at the December term, 1900.
It is admitted on all sides that John M. Brown is the common source of title from whom both plaintiffs and defendants claim. The testimony discloses that the said John M. Brown died in the year 1883, seized in fee of the above land, and leaving as his only heirs at law his six children, four of whom, and the widow, and the heirs at law of the fifth son, are plaintiffs herein, the sixth child being Amanda Brown. In the years 1885 and 1886, by proper deeds of conveyance from all of said children except Amanda Brown, one Christ Brunkhorst acquired their five-sixths interest in said land, which said five-sixths interest has by deeds of conveyance been conveyed to the defendant George F. Kullman, who has incumbered the same with a deed of trust to the other defendants. The deeds under which defendant Kullman claims only purport to convey a five-sixths interest in said land, but the said defendant asserts title to the remaining one-sixth interest which is claimed by the plaintiffs by virtue of ten years' adverse possession. The one-sixth interest inherited by Amanda Brown is the bone of contention in this case.
The evidence tends to show that Amanda Brown resided at the home of her father, John M. Brown, or worked out at various places in this State until about the year 1883, when she went to Texas; that the family heard from her at various times until sometime in the...
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