Deeds v. Foster

• Decision Date: 08 January 1951
• Docket Number: No. 1,No. 41919,41919,1
• Parties: DEEDS et al. v. FOSTER et al
• Court: Missouri Supreme Court

Page 262

235 S.W.2d 262

DEEDS et al. v. FOSTER et al.

No. 41919.

Supreme Court of Missouri, Division No. 1.

Jan. 8, 1951.

Joseph C. Crain, Ozark, for appellants.

Roscoe C. Patterson, Springfield, for respondent, Gladys Foster.

DALTON, Judge.

Action in ejectment and for partition of described real estate in Greene county, with a cross-action or counter-claim to quiet and determine title in defendant Gladys Foster. At the close of plaintiffs' case, defendant Gladys Foster, who alone appeared and answered, moved for a directed verdict in favor of defendants on both counts of plaintiffs' petition. The motion was sustained and judgment entered accordingly. Plaintiffs have appealed. For convenience we shall refer to the parties as plaintiffs and defendants.

In count one of their petition the plaintiffs alleged that on and prior to June 14 1927, Rutha Caldwell was the fee simple owner of the described real estate; that, thereafter, she conveyed title to James A. Caldwell and his bodily heirs; that Rutha Caldwell was entitled to the possession and use of the premises during her lifetime; that James A. Caldwell is dead and plaintiffs and defendants are his bodily heirs; that Rutha Caldwell died July 22, 1949 and plaintiffs and defendants became entitled to possession as tenants in common, each being the owner of an undivided one-fourth interest; that the ___ day of July 1949 defendant Gladys Foster entered into possession and claims exclusive adverse possession and absolute ownership of the described premises against all persons; that, while claiming and holding the sole and exclusive possession of the premises, said defendant has received the rents and profits therefrom from July 22, 1949 to the date of filing the amended petition; and that the reasonable rental value of the described real estate is $25 per month. The relief asked was for 'judgment for the delivery of the possession of said premises and also for their share of the rents and profits therefrom in the sum of $12.50 per month from the 22nd day of July, 1949 until the date of delivery of possession of said premises, and also for the costs of this suit.' The same facts were re-alleged in the second count and it was further alleged that plaintiffs and defendants were seized of the real estate as tenants in common and each was entitled to an undivided one-fourth interest. The prayer of the second count was for partition of the lands according to the respective interests of the parties or for the sale of the property and the division of the proceeds and 'for such other orders, decrees and relief as to the Court may seem meet and just in the premises.'

The separate answer of defendant Gladys Foster admitted that Rutha Caldwell was the owner of the described premises on June 14, 1927 and alleged that Rutha Caldwell was in possession claiming absolute ownership from October 8, 1885 until the date of her death on July 22, 1949. The alleged conveyance from Rutha Caldwell to James A. Caldwell was denied and it was further alleged that the purported deed was void as a conveyance of title because it was testamentary in character and did not take effect until after the grantor's death. It was admitted that Rutha Caldwell remained in possession of the premises and was entitled to the possession and use thereof until the date of her death, July 22, 1949; and that plaintiffs and defendants were the only bodily heirs of James A. Caldwell, deceased. It was further alleged that Rutha Caldwell died leaving a will whereby she devised the described real estate to the answering defendant, subject to the payment of debts; that the will had been duly proven and admitted to probate in the probate court of Greene county; that the personal estate of said deceased did not exceed $250, while the indebtedness amounted approximately to $800; that the probate court had ordered said defendant, the executrix of the will, to take charge of the real estate for the purpose of administration, and that defendant was in possession of the described real estate under claim of ownership, subject to the payment of the debts of Rutha Caldwell, deceased. Defendant denied that plaintiffs and defendants were entitled to possession as tenants in common and admitted that she claimed absolute ownership. She denied the receipt of any rents and profits from the said lands and alleged that she and Rutha Caldwell, under whom she claimed, had been in the open, continuous, exclusive notorious and adverse possession of the described real estate under claim of ownership for more than ten years prior to the institution of this action by plaintiffs. Defendant prayed the court to try, ascertain and determine the title to the described lands and by its judgment and decree to adjudge the said defendant to be the owner thereof in fee simple, subject to the payment of the debts of Rutha Caldwell, and that the plaintiffs and codefendant Marvin Tong, Jr., have no right, title or interest therein. For answer to count two, defendant realleged the same facts and prayed that the second count of plainiffs' petition (the count in partition) be dismissed and defendant recover her costs.

The cause was tried to the court without the aid of a jury. It was admitted that Rutha Caldwell was the common source of title. Plaintiffs' evidence tended to show that Rutha Caldwell and James A. Caldwell were cousins and neighbors from 1918 to 1943; that in 1942 James A. Caldwell was in possession of a warranty deed to the described real estate; that the deed was written on the usual printed form for a warranty deed; that Rutha Caldwell was the grantor therein and James A. Caldwell was the grantee; that the consideration shown was one dollar and other consideration; that the habendum and warranty clauses were 'unto the said party of the second part and unto his bodily heirs and assigns forever'; and that at the close of the deed, immediately preceding the signature of the grantor, were the words: 'This deed to be of full force and effect on and after the death of the grantor.' The deed was adated June 15, 1927 and had been duly signed and acknowledged on the same date. In 1942, James A. Caldwell was also in possession of an abstract of title to the described lands, with an abstractor's certificate dated June 4, 1927. In July 1926, prior to the date of the deed, Rutha Caldwell and James A. Caldwell had had a deed of trust on the described property released and the record satisfied. The abstract of title shows such release as of July 24, 1926. In 1942, James A. Caldwell had placed the deed and abstract in the possession of his son-in-law, E. F. Deeds, for safe keeping and later had repossed both deed and abstract. Prior to his death on January 28, 1948, James A. Caldwell again returned the deed and abstract to Mr. Deeds for delivery to one of Caldwell's daughters. The deed and abstract of title were so delivered. Rutha Caldwell died July 22, 1949 and thereafter, on July 27, 1949, the deed was duly filed for record in the recorder's office of Greene county. The reasonable rental...