Coshow v. Otey

• Decision Date: 02 June 1920
• Docket Number: No. 20942.,20942.
• Citation: 222 S.W. 804
• Parties: COSHOW et al. v. OTEY.
• Court: Missouri Supreme Court

222 S.W. 804

COSHOW et al. v. OTEY.

No. 20942.

Supreme Court of Missouri, Division No. 1.

June 2, 1920.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Action in ejectment by John W. Coshow and others against Orlaney Otey. From a judgment for defendant, plaintiffs appeal. Affirmed.

C. W. & Z. W. Wilson, of St. Charles, for appellants.

Theodore C. Bruere, of St. Charles, for respondent.

GRAVES, J.

Action in ejectment for two small tracts of land (aggregating less than 45 acres) in St. Charles county. The petition is in usual form, alleging ouster of plaintiffs by defendant on March 2, 1916, and alleging rents and profits to be $10 per month, and damages at $50. The answer upon which the trial was had was a third amended answer, "and consisted of the following defenses (1) An admission of possession and a denial of all other matters of the petition; (2) plea of the 10-year statute of limitation; (3) plea of the 24-year statute of limitation; (4) title in defendant by open, notorious, continuous, and adverse possession for a period of 10 years. Whilst there are some reiteratons, the foregoing cover the defenses made. Reply was a general denial. Upon a trial before a jury the defendant had a verdict in his favor, and from the judgment entered upon such verdict the plaintiffs have appealed.

No formal assignments of error are made in the brief for appellants but under their heading of "Points and Authorities" it is said that the court committed "reversible error" in the following particulars: (1) In admitting tile evidence to the effect that Alonzo B. Howell under whose will plaintiffs claim title stated in his lifetime that he had given the property to defendant; (2) in giving instructions Nos. 1, 2, and 3 for defendant; (3) in giving conflicting instructions; and (4) in refusing instruction No. 8 as asked by plaintiffs.

The plaintiffs in this case are trustees under the will of Alonzo B. Howell, by the terms of which he gave:

"All the rest, residue and remainder of my estate, both real, personal and mixed, I give, devise and bequeath to Wm. M. Stewart, Mike Sutton, John W. Coshow, Isaac N. Howell, and John Burton, as trustees, and to their successors in office and trust forever, for the purpose of organizing and incorporating themselves into a cemetery association under the laws of the state of Missouri, said trustees and their successors to set apart such of my real estate as in their judgment may be necessary, including the old family burial ground, where my father and mother and many of their descendants and relatives are buried, for cemetery purposes. And said trustees and their successors are hereby empowered to make such rules and regulations in reference to said cemetery as in their wisdom and judgment may be just and proper. And I hereby give and grant to said trustees authority and power to use the net income, rents and profits arising from my said estate for the purpose of improving, decorating, adorning and enlarging said cemetery grounds. And for all services rendered by them, or any of them, in their capacity as such, they are to be paid out of said income, so that no part of the principal of my estate shall be encroached upon at any time, unless the same be required for such improvements."

By a codicil this was later modified thus:

"Now, I, the said Alonzo B. Howell, do make this codicil to my said will, and I do hereby revoke said provision in reference to said cemetery association as a corporation under the laws of the state of Missouri and also as to Isaac N. Howell as one of the trustees, and I hereby appoint Wm. M. Stewart, John W. Coshow, Mike Sutton and John Burton as trustees for the care, improvement and such maintenance of said cemetery as is directed in my said will, except that they shall not be required to organize as a cemetery association under the laws of the state of Missouri. And I direct that my executor shall, as soon as convenient after my decease, pay to said trustees, Wm. M. Stewart, Mike Sutton and John Burton, for their services as said trustees, fifty dollars each, and to John W. Coshow five hundred dollars for his services as such trustee.

The paper title to the land in dispute was in Alonzo B. Howell at the date of his death in January, 1902, and his estate was finally settled in May, 1904. The instant suit was brought May 4, 1916. There is no dispute as to the fact that the property described in the petition is in the possession of the defendant. On the other hand the proof for the defendant tends to show that defendant had been in the open, notorious, hostile, and adverse possession of the land for much more than 10 years. The defendant is a colored man, and the son of a former slave of the said Alonzo Howell, and whilst living upon the land in dispute worked more or less for Mr. Howell. There is much substantial evidence showing that defendant has had the land fenced for more than 25 years, and has lived upon, cultivated, and improved it during that time. He paid no rent during the lifetime of Howell, and none since although there was a slight attempt to show payment of rent a, time or two since the death of Howell; but there is not much substance to this portion of the evidence. The evidence is ample to support the verdict of the jury and the judgment of the court in the cause should be affirmed, unless there is some substance in the assignments of error. These, and the pertinent facts pertaining thereto, we leave to the opinion.

I. The plaintiffs in this case stand in the shoes of Alonzo B. Howell. The evidence to which plaintiffs objected, and of which complaint is now made, is in the nature of admissions by Howell that he had given the land to Otey. There is no question that Otey went into possession and made valuable improvements thereon in the lifetime of Howell. A sample of the testimony now complained of will serve a good purpose here. Witness Huning was on the stand for defendant, and said:

"Q. Now, Mr. Huning, I will ask you whether you had any conversation with Mr. Howell with reference to the property that was on the eastern side of this fence that ran along the west boundary of this in controversy.

"Mr. Bruere: Mr. Wilson takes the position as to adverse possession. It's clear that, if the ancestor disclaims any right to this property and makes the statement that the property does not belong to him, but belongs to the other man, and disclaims any right of ownership, that it is admissible.

"The Court: If that is what you propose to show, the court will overrule the objection.

"Mr. Bruere: That is what I want to show by this witness.

"Mr. Wilson: We except to the ruling of the court for the reasons indicated.

"The Court: Proceed.

"Q. Just state what that conversation was. A. My father was cutting board timber over there and only was to get the black oak.

"Mr. Wilson: That's not giving the statement or conversation with Mr. Howell. We object to it.

"The Court: Sustained. State what was said.

"A. Of course, on the west side of Uncle Alonzo's house, that was in the pasture, the black oak timber was without, and, of course, he had told him not to take anything but black oak, and

"Mr. Wilson: We object to that.

"The Court: State what was said — what Mr. Howell said. A. He asked Mr. Howell whether he could get the black oak on the other side of the house

"Q. What do you mean by that? A. Over across the fence.

"Q. That is where Otey was? A. Yes, sir; and he said not to take anything there; that belonged to Otey and wasn't his, and not to go over there to cut any.

"Q. Who said that? A. Mr. Howell."

And further the same witness said:

"Q. Now, you say, when you went to see Mr. Howell, to ask permission to cut board timber directly over across the fence, it was the fence as it existed at that time? A. There was a fence there at that time when I went there.

"Q. And he told you not to go across the fence that was Otey's? A. Yes, sir.

"Q. And that occurred Otey was living there on that place that time, was he? A. Yes, sir.

"Q. And that occurred how long ago; 25 or 30 years ago? A. That was the last year I was living there; that's about 27 or 28 years ago."

Another witness said:

"The Court: Just state the conversation, whatever it was. A. Well, I was trading with him on some corn there, and he made me a price, and told him that I couldn't haul that corn at the price, unless he would take off enough to pay me to haul it, and he said he couldn't well do that; and I said, `Haven't you got any one to haul it?' and he said, `I have no one but a nigger, and he is busy now, and I couldn't get him;' and I said, `What nigger? and he said `Orlaney Otey, that lives over here on a piece of land: gave him.' That was the conversation."

The foregoing has reference to a conversation with Mr. Howell at Howell's place.

A brother of the defendant testified:

"Q. Did you ever have a talk with Alonzo Howell with reference to this place — the ownership of this place? A. Yes, sir.

"Mr. Wilson: If the court please, we object to this testimony for the reasons already interposed.

"The Court: Overruled. (To which ruling of the court the plaintiffs, by counsel, then and there duly excepted and saved their exceptions.)

"A. I went over there to work on Orlaney's place one time. Orlaney couldn't go, and he sent me to work in his place, and when started away `Morse Alonzo,' as we always addressed him, told me, he says, `Now,' ne says, `I have given Orlaney a home,' he says; `that's his, and I have nothing to do with it.'"

The foregoing is the character of the testimony to which the appellants lodge their assignment of error. Evidence of this character was recognized as proper in the case of Allen v. Mansfield, 108 Mo. loc. cit. 348, 350, 18 S. W. 001. That was an action in ejectment, as here, and among other defenses was that of adverse possession. Black, J., in discussing the matter at page 348 of 108 Mo., at page 902 of 18 S. W.,...