Curtis v. Curtis
| Citation | 427 S.W.2d 410 |
| Decision Date | 08 April 1968 |
| Docket Number | No. 52700,No. 1,52700,1 |
| Parties | Lillie CURTIS, Appellant, v. Chester CURTIS et al., Respondents |
| Court | Missouri Supreme Court |
Stephen J. Millett, Kingston, for appellant; Knipmeyer, McCann & Millett, Kansas City, of counsel.
Edward L. Simmons, Cornelius Roach, III, Kansas City, for respondents (other than Kenneth Curtis).
Plaintiff in this action sought to quiet the title to 171 acres of farm land. Her claim was based on deeds to an undivided interest therein, and adverse possession as to the remaining undivided interests. A jury trial resulted in a verdict for defendants. Plaintiff has appealed.
Respondents have filed a motion to dismiss the appeal which is based on an alleged defect in the notice of appeal. That motion is overruled.
The land involved in this suit is a 163-acre tract referred to as the 'Home Place' and an 8-acre separate tract located about a quarter of a mile from the home place. Plaintiff and her sister, Anna Curtis, purchased 123 acres, plus the 8-acre tract, at a partition sale in October 1935. Plaintiff testified that the sheriff was instructed to make the deed so that it would 'go to the survivor of us two.' This was corroborated by the testimony of Elmer Dice who bid in the land for the two sisters. He stated that there was a discussion in the presence of the two sisters, the sheriff, and Mr. Robison, an attorney, in which the instructions were that the deed be fixed so that 'if one passed on, it was the other's.' However, the deed was made to the two sisters as tenants in common.
In 1928 Anna, Lillie, and Lottie Curtis purchased 40 acres of the land here involved and it was conveyed to them as joint tenants. Thereafter, in 1934, Lottie deeded her interest in that land to Anna and Lillie, but there was nothing stated in that deed which would describe the grantees as joint tenants. In May 1935, plaintiff and Anna purchased 20 acres of land adjoining the home place and this land was conveyed to them in a manner which apparently made them joint tenants.
Anna died September 3, 1944. There were a number of witnesses who testified concerning plaintiff's possession and management of the farm after Anna's death. We think that testimony can be summarized in this fashion: The evidence was undisputed that she retained control over this land; that she rented it, signing written leases, received the rent, paid all taxes, and improved the farm from the date of Anna's death until the time of trial of this case. She expended several thousand dollars in repairs and improvements, having rebuilt the barn, put a new floor in the house, installed electricity in both the house and barn, had a room built onto the house, had several ponds dug on the farm, and kept up the fencing. During that time she did not account to the defendants or anyone else for any portion of the rents, and none of the defendants made any demand upon her for any accounting.
Plaintiff testified that she did not know the manner in which the partition deed conveyed the property until she sold 28 acres to Bennie Kirkendall in 1963. Apparently, at that time, it was discovered that she could convey title to 20 acres because it had been deeded to plaintiff and Anna jointly, but her title to the 8-acre tract was questionable because it had been deeded to plaintiff and Anna as tenants in common. Plaintiff testified that, in order to 'keep down a lawsuit,' she attempted to get a quitclaim deed from two of the heirs, and did get such a deed to the eight acres from one of her sisters for the sum of $1.00. It was shown that in January 1963, plaintiff's attorney filed a suit in her behalf to partition the 8-acre tract. (The petition erroneously included a description of the 20 acres which plaintiff had owned since Anna's death as a surviving joint tenant.) Thereafter, two amended pleadings were filed. Later, her attorney was seriously burned and thereafter died. After plaintiff employed her present counsel she filed an affidavit in the partition suit which reads as follows:
'Lillie Curtis, being first duly sworn, on her oath, states that she authorized John J. Robison as her attorney to take the necessary legal action to clear the title to the 8 acres in the Southeast corner of the Northeast Quarter (NE1/4) of the Northwest Quarter (NW1/4), Section Eight (8), Township Fifty-seven (57) of Range Thirty (30), in DeKalb County, Missouri, as described in the petition filed herein, by a quiet title suit or by a suit to reform the Sheriff's Deed, dated October 18, 1935, by which she and her sister Anna Curtis acquired title to said land and other land which was supposed to have been conveyed to them as joint tenants with right of survivorship, and that she did not authorize him to file a partition suit or a petition in partition relating to any of her land and particularly to the North Half (N1/2) of the Northeast Quarter (NE1/4) of the Northwest Quarter (NW1/4), and the 8 acres in the Southeast corner of the Northeast Quarter (NE1/4) of the Northwest Quarter (NW1/4), of Section Eight (8), all in Township Fifty-seven (57), of Range Thirty (30), in DeKalb County, Missouri, as described in the pleadings herein, because she has claimed to be the sole owner of said land since the death of her sister, Anna Curtis, on September 3, 1944, and that she was not informed of the nature of the suit filed in her behalf and in her name as plaintiff until she secured the legal services of Stephen J. Millett, an attorney.
'Wherefore, Lillie Curtis, the plaintiff in the above entitled cause, hereby authorizes and directs her attorney, Stephen J. Millett, to dismiss the Second Amended Petition in this cause.'
In the trial of the case defendants offered the three petitions filed by plaintiff's attorney in the partition suit and they were admitted in evidence over plaintiff's objection. Plaintiff offered the affidavit heretofore set out and it was admitted in evidence.
While it does not bear on any of the issues raised on this appeal it should perhaps be stated that defendants Louise Curtis Parkey, Verrel Curtis Swicegood, Ben W. Curtis, and Alma Jones filed answers in which they admitted the facts alleged in plaintiff's petition and consented to the entry of a judgment in favor of plaintiff. One defendant, Kenneth Curtis, defaulted and the other defendants filed an answer in the nature of a general denial.
Plaintiff's first point is that her case was established by substantial and undisputed evidence; that the verdict for defendants is contrary to the overwhelming weight of the evidence and not supported by substantial admissible evidence; that the judgment should be set aside and the cause remanded with instructions to enter judgment for plaintiff. That contention is without merit. The trial court could have granted plaintiff a new trial on the ground that the verdict was against the weight of the evidence but it did not see fit to do so. However, it is firmly established that an appellate court is not authorized to weigh the evidence and, '(w)hether a jury's verdict is against the weight of the evidence is a question for the trial court alone.' Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907, 917. Also, in a case of this kind it is...
To continue reading
Request your trial
-
Parker v. Wallace
...the evidence is a function of the trial, not the appellate, court. Neavill v. Klemp, Mo., 427 S.W.2d 446, 449--450(13--15); Curtis v. Curtis, Mo., 427 S.W.2d 410, 412(1, 2); Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585, This court has several times discussed at length the......
-
State ex rel. Div. of Family Services v. Duncan
...plaintiffs. "[I]n a case of this kind it is not necessary that there be any evidence to support a defendant's verdict." Curtis v. Curtis, 427 S.W.2d 410, 412 (Mo.1968). Plaintiffs' fourth point reads: "This court should remand this case to the trial court for a hearing on the Motion for New......
-
Moss v. Moss, WD
...800 (Mo.1956). In a quiet title suit, it is not necessary that there be any evidence to support a defendant's verdict. Curtis v. Curtis, 427 S.W.2d 410, 412 (Mo.1968). In the present case, it appears beyond question that neither Alice nor Willie and Belle are claiming title to any land of w......
-
Wilson v. Concordia Farmers Mut. Ins. Co., 25662
...and that whether a jury's verdict is against the weight of the evidence is a question for the trial court alone. See Curtis v. Curtis, Mo.Sup., 427 S.W.2d 410, Neavil v. Klemp., Mo.Sup., 427 S.W.2d 446; also see 3A Mo. Digest Appeal and Error k1003. The question whether there is any substan......