Dunlap v. Griffith

• Decision Date: 17 October 1898
• Citation: 47 S.W. 917,146 Mo. 283
• Court: Missouri Supreme Court
• Parties: DUNLAP v. GRIFFITH.<SMALL><SUP>1</SUP></SMALL>

47 S.W. 917

146 Mo. 283

DUNLAP v. GRIFFITH.¹

Supreme Court of Missouri, Division No. 2.

October 17, 1898.

TENANCY IN COMMON — ADVERSE POSSESSION — EJECTMENT — EVIDENCE — APPEAL — REVIEW.

1. A party who requested an instruction tendering an issue which, in substantially the same form, was given at the adversary's request, cannot be heard to say that there was no evidence to warrant a submission of the issues.

2. Plaintiff's intestate negotiated for a farm, saying he wanted to buy it for defendant, his brother. While the conveyancer was drafting the deed intestate said the farm would suit his brother, and, when the deed as drawn named both him and his brother as grantees, he objected that only his brother's name should appear, because the farm was for him, but, the conveyancer having no other blank, he accepted it, saying he would fix it when his brother came. Intestate paid part of the price, but it was not shown who paid the balance. The brother moved on the farm. It was assessed in his name. He paid the taxes, made improvements, and occupied it for 23 years, while intestate resided a mile away, and frequently visited him. Held to support a submission to the jury whether the possession was adverse to intestate's paper title to the undivided interest.

3. An actual verbal claim of adverse ownership to a co-tenant personally is not necessary to prove an ouster by one in possession doing overt acts which indicate a hostile claim.

4. In ejectment, declarations of plaintiff's intestate as to ownership, made when he was out of possession, are inadmissible.

5. Declarations of an adverse claimant of lands while in possession are admissible, as tending to characterize his ownership.

Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.

Action by R. C. Dunlap, administrator, against Daniel Griffith. There was a judgment for defendant, and plaintiff appeals. Affirmed.

James W. Coburn and C. A. Mosman, for appellant. W. B. Norris and Benj. Phillip, for respondent.

GANTT, P. J.

This is an action of ejectment by the administrator of Henry M. Griffith, deceased, against Daniel Griffith, for the recovery of the undivided one-half of 148 acres of land in Buchanan county. The action was brought in pursuance of an order of the probate court under section 129, Rev. St. 1889. The defenses are — First, a gift of the land by Henry M. Griffith to his brother, the defendant, in his lifetime; second, adverse possession for the statutory period. While counsel for the parties draw conclusions radically different, the evidence is practically unquestioned. It appears that Henry M. Griffith, in 1870, resided in Buchanan county. He was a man of considerable means. Daniel Griffith, his brother, lived in Kentucky. At that time the land in controversy belonged to Hurt and Pence. The negotiation for the land was conducted by Henry Griffith. When he went to examine the land he said to Hurt: "I want to buy a place for my brother Dan, who is in Kentucky, if I can find one that I think will suit him." The purchase was agreed upon, and Henry Griffith said he would bring the notary out to the farm to make the deed. Esquire Pettigrew was engaged to prepare the conveyance, and undertook to do so in his office, but when he arrived at the farm found he had made a mistake in the numbers; whereupon he tore it up, and began to draw another. While he was thus employed Henry Griffith and Hurt went out to look at the farm, and Henry then said to Hurt: "If this place don't suit Daniel, I don't know where he will find one in Buchanan county that will suit him." When they came back to the house the justice had finished the deed, and had inserted therein the names of both Henry M. Griffith and Daniel Griffith as grantees. He began reading the deed to the parties in interest, and, when he came to the names of the grantees, Henry remarked: "Captain, my name ought not to be there; the land is for Dan." The scrivener told him that he had no other blank with him, whereupon Henry replied that "that was all right; he would fix it all up when his brother came." With that the deed was executed, and Henry paid a portion of the purchase price. It is not shown who paid the remainder. Shortly afterwards Daniel Griffith moved to Buchanan county, and Henry met him at the station, moved him and his family to the farm, put him in possession of it, and from that day to this Daniel Griffith has been in exclusive possession of all the property. Henry Griffith owned a farm in the immediate neighborhood, only two miles and a half from the land in controversy, upon which he lived from 1870 until he died, in 1893. Shortly after Daniel took possession of the farm he began setting out an orchard and making other improvements. Twenty years ago he planted 70 fruit trees, and from time to time since then has added to the orchard, until it now consists of about 500 trees, all of the present value of about $2,500. They were paid for entirely by Daniel Griffith. Immediately after the land was purchased, in 1870, it was assessed for taxation in the name of Daniel Griffith, and it has been assessed in that way ever since. It is admitted that Daniel Griffith paid the taxes on all the property from the time the land was purchased up to the date of the trial. The evidence shows that from the day Daniel took possession of the property he occupied it exclusively as his home, cleared it, cultivated it, improved it, and managed and controlled it exclusively as he saw fit; that he rented out portions of the land, and received the rents and profits; that he has never paid any rent to Henry Griffith, nor did Henry ever demand any; that he received all of the rents and profits, and never accounted to Henry Griffith for any part of them, and Henry has never claimed any interest in the property; that 14 years before the beginning of this suit Daniel erected a large frame dwelling upon the land at a cost of $1,200, and a barn at a cost of $259, and other improvements; that he had cisterns dug and fences built; that all of these improvements were paid for by Daniel; that Henry was never consulted regarding them at any time; that he visited Daniel frequently, and knew the improvements were being made; that he contributed nothing to their cost; that he was never in possession of the property; that he never exercised any act of ownership or control over it, or any part of it, and never claimed the right to do so; that he paid none of the taxes; that Daniel Griffith, from the time he first went into possession of the property until the day of the trial, claimed the land as his own; that Henry Griffith knew that Daniel claimed the property as his own, and whenever he referred to the farm he always called it "Dan's farm." In 1893 Daniel sold an undivided half of the property, and Henry remarked that "it was too bad that Daniel, in his old age, only had eighty acres of land left."

The evidence thus tended to show, not only the adverse holding of the defendant, Daniel Griffith, but also that Henry Griffith disavowed any interest in the land, and up to the day of his death never pretended that he had any interest in it. Indeed, the only evidence in the case that Henry Griffith had any interest in the land at all is the deed conveying the property from Hurt and Pence, and it was proven, without dispute, by Hurt, who owned the land, and by the scrivener, who drew the deed, that Henry's name appeared in the deed as a grantee only on account of a mistake of the scrivener. Upon this evidence the court, at the instance of both plaintiff and defendant, submitted the question of adverse possession for the statutory period, and the question of the gift of the land by Henry to Dan, to the jury. The triors of the fact...