Crowl v. Crowl

• Decision Date: 22 February 1906
• Citation: 195 Mo. 338,92 S.W. 890
• Parties: CROWL v. CROWL.
• Court: Missouri Supreme Court

92 S.W. 890

195 Mo. 338

CROWL v. CROWL.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

1. JUDGMENT—CONCLUSIVENESS.

An action in ejectment does not bar another action in ejectment between the same parties in respect to the same title and the same tract of land.

2. ADVERSE POSSESSION — HOSTILE POSSESSION—NECESSITY.

Mere possession of land, where not in any way hostile to the legal title, does not create title by limitation, however long continued.

Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

Action by Catherine E. Crowl against Joseph F. Crowl. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

R. J. Tucker and Cole, Burnett & Moore, for appellant. Thurman, Wray & Timmonds, for respondent.

MARSHALL, J.

This is an action in ejectment for the S. E. ¼ of section 29, township 31, range 32, in Barton county, Mo. The petition is in the usual form. The answer was a general denial, coupled with a special plea that on the 23d of February, 1900, the plaintiff and others, instituted an action against the defendant for the partition of the land in controversy; that the defendant claimed to be the absolute owner of the land; that thereupon the circuit court ordered the plaintiff in the partition suit to institute a suit in ejectment against the defendant to try the title to the land, and further ordered that the partition suit should be continued to await the result in the ejectment suit; that in obedience to said order the plaintiff, on the 15th of October, 1900, commenced an action against the defendant in ejectment, that said action was tried on the 30th of January, 1901, and resulted in a verdict and judgment for the defendant, which has never been appealed from, set aside, or vacated, but is still in full force and effect; that since said judgment the plaintiff has not acquired any interest or claim in the premises, other than such as was involved in the original ejectment suit. The answer then pleaded that the plaintiff's right to the premises in controversy was finally adjudicated in the former ejectment suit. On motion of the plaintiff the special plea of the defendant was stricken out, and on the same day the case was tried, and resulted in a verdict for the plaintiff for the possession of an undivided one-half of the N. ½ of the S. E. ¼ of section 29, township 31, range 32, and for $150 damages and $4 a month rents and profits, and judgment was thereupon entered in favor of the plaintiff for the same. After proper steps the defendant appealed.

The case made is this: Mordekiah Crowl is the common source of title. He died on the 21st of April, 1899, without issue, leaving surviving him his widow, the plaintiff. He lived in Sangamon county, Ill. The record is silent as to the relationship of the defendant to him, but in the briefs counsel speak of him as the brother of the deceased. Plaintiff introduced in evidence a patent from the government of the United States, for 160 acres in the S. E. ¼ of section 29, township 31 north, of range 32, to Charles A. Davis and Green Moore, assignee of Burnham Hill, dated July 1, 1859, and recorded on the 29th of December, 1883; also a warranty deed dated November 6, 1868, from said Davis and said Moore to Levi Oswalt, for the N. ½ of the S. E. ¼ of said section 29, township 31, range 32, recorded November 27, 1868; also a warranty deed from Levi Oswalt to Mordekiah Crowl, dated November 5, 1881, to the N. ½ of the S. E. ¼ aforesaid, recorded December 13, 1881. The plaintiff then introduced evidence tending to prove that Mordekiah Crowl lived in Sangamon county, Ill., and died April 21, 1899, without issue, leaving, surviving him, his widow, the plaintiff; that letters of administration on his estate were granted by the probate court of Barton county, on February 23, 1900, to B. C. Avery, who qualified as such administrator; that on the 30th of January, 1900, the plaintiff, as such widow, duly elected to take one-half of the real and personal property of the estate, subject to the payment of the debts thereof, which election was filed for record in Barton county, on the 23d of February, 1900. The plaintiff then introduced evidence tending to show that the defendant is, and at the time of the institution of the suit, and for 20 years, had been in possession of the premises; and also showed the rental value thereof. The evidence did not tend to prove the character of the possession of the defendant, nor was any attempt made to show that it was adverse to the plaintiff, or her said deceased husband. This was all the evidence in the case. The defendant asked and the court refused to give an instruction to the jury to find for the defendant, and the defendant stood upon the ruling, introduced no evidence, and now assigns that ruling as one of the errors of the trial. At the request of the plaintiff the court instructed the jury that if they believed from the evidence that the defendant was in possession of the land sued for at the time of the commencement of this action, and at the time plaintiff elected to take one-half of the land, they would find for the plaintiff for an undivided one-half of the land described in the petition, and would assess her damages at one-half of the value of the rents and profits from the 23d of February, 1899, the date of the alleged ouster, and would also assess the monthly rents and profits of the land. To the giving of which instruction the defendant excepted, and now assigns the same as error.

1. The first error assigned is the ruling of the trial court in striking out the special plea of the defendant, to the effect that the rights of the plaintiff to the premises had been adjudicated against her in the former...