Collier v. Gault

• Decision Date: 23 May 1911
• Citation: 137 S.W. 884,234 Mo. 457
• Parties: COLLIER et al. v. GAULT et al.
• Court: Missouri Supreme Court

137 S.W. 884

234 Mo. 457

COLLIER et al. v. GAULT et al.

Supreme Court of Missouri, Division No. 2.

May 23, 1911.

1. TENANCY IN COMMON (§ 15) — ADVERSE POSSESSION.

One cotenant cannot claim by adverse possession against the other tenants, unless he shows that he has been in the open and notorious possession, adverse to the others, and under a claim of exclusive ownership.

2. TENANCY IN COMMON (§ 15) — ADVERSE POSSESSION—EVIDENCE.

Evidence held not to show that a cotenant was in possession under a claim of exclusive ownership, so that he did not acquire title by adverse possession.

3. REFORMATION OF INSTRUMENTS (§ 32) — LACHES.

Where, in a suit to reform a deed by excluding from the conveyance a parcel embraced in the description, the premises remained substantially in the original condition, and the grantee made no expenditure thereon over and above the benefit received from their use, the mere delay in instituting the suit could not defeat it on the ground of laches; the grantee having suffered nothing by the delay.

Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by T. S. Collier and another against Asenath Gault and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Simeon Collier, now deceased, on the 17th day of February, 1885, conveyed to his two daughters, Amelia Collier and Asenath Gault, a tract of land in Platte county, Mo., by the following deed: "This indenture, made on the seventeenth day of February, A. D., one thousand, eight hundred and eighty-five, by and between Simeon Collier, of the county of Platte in the state of Missouri, party of the first part, and Amelia Collier and Asenath Gault, of the county of Platte in the state of Missouri, parties of the second part, witnesseth: That the said party of the first part, in consideration of the sum of three thousand and two hundred and no hundredths ($3,200) dollars, to him paid by the said parties of the second part, the receipt of which is hereby acknowledged, do by these presents, grant, bargain and sell, convey and confirm unto the said parties of the second part, their heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the county of Platte and state of Missouri, to wit: All of the northeast quarter of section number seven (7), in township number fifty-four (54), and range number thirty-five (35), containing 160 acres. Conditional, however, that the family burying ground is excepted, which said burying ground is designated as follows, to wit: Commencing at a corner on the west line of said quarter section, and about one hundred and fifty yards, more or less, from the northwest corner of said quarter section, thence running south 140 yards to a corner, thence running east 35 yards to a corner, thence running north 140 yards to a corner, thence west 35 yards to place of beginning, containing one acre, which is reserved and set apart for the family burying ground of Collier heirs and their posterity forever. To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in any wise appertaining, unto the said parties of the second part, and unto their heirs and assigns, forever; the said Simeon Collier hereby covenanting that he is lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear of any incumbrances done or suffered by him or those under whom he claims, and that he will warrant and defend the title to the said premises unto the said parties of the second part, and unto their heirs and assigns forever, against the lawful claims and demands of all persons whomsoever." When this deed was executed and delivered there was located on the property, on the west line thereof, a family graveyard containing about 20 graves. This graveyard is not included in the acre described in the deed and reserved for a family burial ground. Plaintiffs state in their petition, and contend that it was the intention of Simeon Collier, and so understood by the grantees at the time, to reserve an acre of the same dimensions and for the same purpose designated in the deed, said acre to be carved out of the northwest corner of the quarter section, so as to include the graveyard as then existing. The burial ground proper was inclosed within a wall some time after the death of Collier, and continued to be used as a family burial ground; some five or six graves having been added after his death. The wall inclosing this lot of graves has an opening or gate to the north. At the northwest corner of the quarter section is a gate opening on a public road which runs east and west. The only access to the burial ground is through this gate, so that a person desiring to enter the burial ground from the road must pass through said gate and proceed south through a half acre of ground lying between the...