Coberly v. Coberly

• Decision Date: 24 May 1905
• Citation: 87 S.W. 957,189 Mo. 1
• Parties: COBERLY et al. v. COBERLY et al.
• Court: Missouri Supreme Court

87 S.W. 957

189 Mo. 1

COBERLY et al. v. COBERLY et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

TENANTS IN COMMON — ADVERSE POSSESSION — PRESUMPTION — EVIDENCE — SUFFICIENCY — DESCENT AND DISTRIBUTION — RENTS ACCRUING BEFORE DEATH OF ANCESTOR.

1. It is presumed that the possession of one co-tenant is not adverse as to the others, and evidence to overcome this presumption must be strong.

2. A possession which was at its inception friendly and in subordination to the true title does not become adverse merely by change of mental attitude.

3. Under Rev. St. 1899, § 2939, providing that, when the husband shall die without descendants, the wife shall be entitled to onehalf of the land belonging to the husband at the time of his death, a widow is entitled to only common-law dower in land which her husband has disposed of by gift.

4. Where an heir recognized the widow's right to be endowed of one-half of certain lands, it was an admission that the ancestor owned the lands at the time of his death.

5. In a suit for partition, evidence held insufficient to support a finding that one of the defendants was in the open, adverse, and unequivocal possession of the lands, as against the plaintiffs.

6. Rents accruing before the death of the landlord do not inure to the benefit of the heirs by descent.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Action by Marion Coberly and others against Rachel Coberly and another. From a judgment for defendants, plaintiffs appeal. Reversed.

J. M. Davis & Sons and Lewis A. Chapman, for appellants. L. A. Martin and Frank W. Ashby, for respondents.

LAMM, J.

In November, 1897, Jesse Coberly died, stricken with years, childless, and intestate, in Livingston county, leaving a widow, a small estate, and numerous inheriting collateral kin to law over the same. The widow, defendant Rachel, became administratrix and within a year elected to be endowed, under sections 2939, 2941, Rev. St. 1899, of one-half of the estate belonging to her husband at the time of his death. While the widow is a party defendant, yet the bones of the controversy lie between the defendant Jesse Lee, a nephew, and the plaintiffs, his brothers, sisters, their descendants, and other heirs of the decedent.

The suit is an equitable partition affecting three tracts of land — one of 53 and a fraction acres, one of 2 acres, and one of 15 acres. After averring that Jesse Coberly died intestate, seised of a fee-simple title in and to said land, and that he left no descendants, but left a widow, the plaintiffs, and defendant Jesse Lee as his only heirs at law, and that the widow duly elected to take a child's part, and by said election became the owner of an undivided one-half of the premises, and after averring the respective interests of the parties in the real estate, and that the estate had been administered on and debts paid, the petition pleads certain equitable matters whereby an accounting is sought from the widow and the defendant Jesse Lee for certain rents, that certain advancements were made to Jesse Lee Coberly, etc., and ends with a prayer for an accounting, for partition, and for such other relief "as pertaineth to equity and good conscience."

Defendant Jesse Lee answered separately, admitting the relationship of the parties as averred and the ownership of the undivided one-half of the premises in question by the widow, Rachel, but denying all other averments. For other defenses the answer pleads the following: "Defendant alleges that he is the owner and in possession of the undivided one-half of all the premises in plaintiffs' petition. Defendant alleges that he and his grantors and the defendant Rachel Coberly and her grantors have been in the open, notorious, and continued adverse and exclusive possession, claiming ownership, of all the premises described in plaintiffs' petition for more than ten years next before the filing of plaintiffs' petition herein. Defendant denies that the plaintiffs, or any of them, have any, or ever had any, right, title, interest, or estate in, of, or to any of the premises described in plaintiffs' petition. Defendant alleges that whatever right, title, interest, or estate in, of, or to any of said premises, which plaintiffs have or claim, cannot be adjudicated in this suit." By a further averment, by way of a plea in abatement, it is alleged that the defendant Jesse Lee brought a suit against his codefendant in partition on the 3d day of March, 1901, and that on the 7th day of May, 1901, he filed an amended petition, making all the plaintiffs in the present suit defendants, by leave of court, and that the court has full jurisdiction of the subject-matter of this cause in that, and can therein adjudicate all the rights of all the parties in the premises.

The defendant Rachel filed the following answer: "And now at this day comes the defendant Rachel Coberly, and for her separate and first amended answer, filed by leave of court first had and obtained, to the petition of the plaintiffs herein, admits that Jesse Coberly died seised in fee of the land described in said petition, admits that she is the widow of Jesse Coberly and that she duly elected to take one-half of said premises, and alleges that her codefendant was claiming to own some interest in part of said premises, and that she purchased one-half interest in the improvements therein which were made by her codefendant, Jesse Lee Coberly, and she alleges that she is the owner of one-half of all the premises set out in said petition, and also the owner of one-half of all the improvements made on certain parts thereof by said Jesse Lee Coberly. And for further answer she denies all and singular the matters and things in said petition contained, except what is above specifically admitted."

To these answers plaintiffs replied, denying each and every allegation of new matter therein.

On a hearing the court rendered a decree finding the relationship of the parties as set forth in the petition, that Rachel Coberly was the widow of Jesse Coberly, that he died childless and intestate, was the owner of the 2-acre and the 15-acre tracts of land described in the petition, and found, further, that in due time the widow duly elected, in accordance with statute law, to take onehalf of the real and personal estate of said Jesse Coberly as in such cases made and provided, and that by virtue of said election she is entitled to the undivided one-half interest in "the above-described lands of which Jesse Coberly died seised and possessed," to wit, the 2-acre and 15-acre tracts. The decree finds the aliquot interests of the plaintiffs, the widow, and the defendant Jesse Lee Coberly in said tracts, and that the land cannot be partitioned in kind. Whereupon partition was decreed, and said two tracts of land were ordered to be sold in accordance with the finding. The decree then proceeds as follows: "The court further finds that at the time of the commencement of this suit the defendant Jesse Lee Coberly was, and still is, in the open, notorious, and adverse possession, claiming ownership, of the following described land, described as follows, to wit: [Here the 53-acre tract of land is described.] And the court doth further find that all of the right, title, and interest of the plaintiffs and of the defendant Jesse Lee Coberly of, in, and to the said tract of land cannot be, and the same is not, determined in this suit, for the reason that the same is in the adverse possession of the said defendant Jesse Lee Coberly." From this decree plaintiffs appeal.

There was no proof that the widow had received any rents to which she may not have been entitled, either under her quarantine rights, or as dowress, or as administratrix; nor was there proof of any advancements to Jesse Lee. So that the question of advancements and the question of rents due from the widow, Rachel, may be eliminated from the case.

The same disposition may be made of defendant's plea in abatement, for the same reason, and for the additional reason that, if proof had been made sustaining the allegations of the plea, it would have availed defendant nought, because plaintiffs were not parties to the partition suit brought by Jesse Lee against his codefendant, and were not made parties until after they instituted the suit at bar.

While there was no showing made of a record title in decedent to the 53-acre tract, or any of the land, yet the cause was tried below and is submitted here on the assumption, passim, that the record title was in decedent, and we will dispose of the case on the theory that such is the fact. The case made on the facts is as follows: Jesse Lee Coberly came into the family of his uncle Jesse and aunt Rachel at 18 months of age and was raised there. His age at the death of his uncle was not shown, but as his letters to his aunt, Lucinda Lough, hereinafter referred to, indicate that he was in partnership with his sons so early as 1897, he must have reached mature life, though how long he was doing for himself as his own man, and when he was married, are left to conjecture. The 53-acre tract adjoins the 2-acre tract, being separated only by a public road. The 15-acre tract is a detached parcel of land, fenced, but unimproved timber, lying a short distance west of the other land. Prior to 1883 the 53-acre tract was fenced with a hedge and in cultivation, but had no other improvements. In 1880, or thereabouts, decedent moved some distance away to Chillicothe, and there resided several years, plying his trade as a wagon maker in a blacksmith shop, being back and forth, however, and so late as 1882 rented the land in question to one of the plaintiffs. He moved from Chillicothe back to the land about the year 1886. Three years before this, in 1883, defendant Jesse Lee came upon the land. The record is silent as to what arrangement was made between him and his uncle at that time, but discloses that he came on the land...