Eaton v. Curtis

• Citation: 4 S.W.2d 819,319 Mo. 660
• Decision Date: 24 March 1928
• Docket Number: 26387
• Parties: James W. Eaton and Lizzie Huffman, Appellants, v. Mary Dale Curtis
• Court: Missouri Supreme Court

4 S.W.2d 819

319 Mo. 660

James W. Eaton and Lizzie Huffman, Appellants, v. Mary Dale Curtis

No. 26387

Supreme Court of Missouri

March 24, 1928

Appeal from Cass Circuit Court; Hon. Ewing Cockrell, Judge.

Affirmed.

M T. January for appellants.

(1) When the trial court called Lizzie Huffman to the stand as a witness, on his own motion, it was error to refuse to permit counsel for plaintiffs to examine her on the whole case. Likewise, it was error to deny the same right as to witness J. W. Eaton, who, when on the stand, was questioned by the court and also by counsel for defendant on the merits of the case. Sec. 5414, R. S. 1919; State v. Roe, 180 S.W 881; State v. Hersh, 296 S.W. 433. (2) Where an issue in the case is a Statute of Limitations, the party claiming under such statute is a competent witness in his own behalf, even though the other party be dead. Spicer v Spicer, 249 Mo. 582; Spence v. Spence, 141 S.W. 898. (3) To acquire title by limitation, good faith in taking possession or in afterwards asserting title is not essential. The initial possession may begin with a trespass. Declarations A, B and C are erroneous. Wilkerson v. Eilers, 114 Mo. 245; Wood on Limitations (3 Ed.) sec. 259, p. 597; 2 C. J. sec. 405, p. 199; Swope v. Ward, 185 Mo. 316. (4) Declarations of a party in possession of land claiming ownership, are admissible in support of a title by limitation. Swope v. Ward, 185 Mo. 316. (5) Neither law nor equity will grant relief after forty years have elapsed and all the original parties to the transaction are dead and all evidence rests in parol. Declaration 4 should have been given. Prevost v. Gratz, 6 Wheat. (U.S.) 481; Taylor v. Blair, 14 Mo. 437. (6) Declarations of parties who are dead, made long years ago, may be some evidence, but it is doubtful whether it should be admitted at all. Peters v. Schacner, 280 S.W. 429; Cornet v. Bartelsman, 61 Mo. 127. (7) The letters of Norah Eaton were but declarations. Since she would have been an incompetent witness against her husband, plaintiff James W. Eaton, as to confidential communications, her declarations as to such communications were equally incompetent. It was error to admit them in evidence. Laws 1921, p. 392. (8) There is no evidence in the record to identify the letters as having been written by Noah Eaton, except the evidence of her husband, James W. Eaton, elicited by questions put by the court. There is no evidence whatever that James W. Eaton authorized her to write the letters. It is axiomatic that declarations of a wife, especially as to confidential communications, are not admissible unless shown to have been directed or authorized by the husband.

Homer M. Poage for respondent.

(1) Sec. 1311, R. S. 1919, vests title to lands in the person in the lawful possession of the same for the period and under the conditions set forth in the statute. And the term "lawful possession" as used therein means that such person only is entitled to the benefit of the statute when he enters into possession of the land claiming to own the same and in good faith believing he is the owner. Abeles v. Pillsman, 261 Mo. 359. (2) To establish title to lands by adverse possession by limitation, the party must have been in possession of the land for ten years or more under claim of right against the true owner, and such possession must have been actual, open, notorious, continuous and hostile for that period of time. Spicer v. Spicer, 249 Mo. 582; Lumber Co. v. Craig, 248 Mo. 319; McCune v. Goodwillie, 204 Mo. 306; McClanahan v. McClanahan, 258 Mo. 379. (3) The claim of adverse possession must begin hostile and continue hostile, because the law presumes every possession is consistent with the true title and ownership. Possession friendly in its beginning and begun in subordination to the true title does not change into a hostile one unless, by open and unequivocal acts amounting to an ouster and sufficient to bring notice home to the true owner, it is changed into one adverse and hostile to him. McCune v. Goodwillie, 204 Mo. 339; McClanahan v. McClanahan, 258 Mo. 579; 2 C. J. 134, sec. 230. (4) The party in possession under a contract creating a relation in the nature of landlord and tenant cannot claim adversely. Lumber Co. v. Craig, 248 Mo. 330. (5) The burden of proving adverse possession is on the party claiming the same. Lumber Co. v. Craig, 248 Mo. 330. (6) The appellate court will not reverse the judgment unless it shall believe that errors were committed by the trial court against appellants materially effecting the merits of the action. Sec. 1513, R. S. 1919. (7) If in the course of the trial, defendant by cross-examination of plaintiff waives his incompetency as a witness, plaintiff should, after such waiver, make an offer of proof of competent evidence by the witness and obtain a ruling of the court thereon, and if such ruling be adverse save an exception thereto. Boutross v. Miller, 223 S.W. 899; Renfrow v. Harber, 274 S.W. 103.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

Davis, C.

The petition comprises two counts: the first count is based on Sections 1311 and 1973, Revised Statutes 1919, involving the Thirty-Year Statute of Limitations, and praying the vesting of title in plaintiffs as to certain land; the second is an action to ascertain and determine title. Both counts involve lots 1 and 2 of the Northeast Quarter of Section 2, Township 34, Range 31, in Vernon County. The venue was twice changed, first to Bates County, and then to Cass County. The cause was tried by the court in the last-named county, a jury being waived. The trial court found the issues in favor of defendant, the plaintiffs appealing from the judgment againt them.

We summarize the petition as follows. The first count avers that defendant, a non-resident, claims an adverse interest in the land; that the title emanated from the Government in 1857 and neither defendant nor any person under whom she claims has been in possession of the land for more than thirty years, nor have they paid any taxes nor brought an action for recovery within one year from the thirty-year period. It is alleged that the action was brought under Sections 1311 and 1973, Revised Statutes 1919. The second count prays the court to ascertain and determine title as between plaintiffs and defendant in accordance with Section 1970, Revised Statutes 1919.

The answer admits that defendant claims the land and then generally denies. Defendant further avers she is the owner of the land in fee simple and plaintiffs have no interest therein; that about October 15, 1881, James A. Eaton, the father of defendant, purchased the land from J. W. Lillard and wife for the sum of $ 1920, receiving a warranty deed therefor, recorded October 31, 1881, in Book 19 at page 591 of the deed records of said county; that James A. Eaton placed his brother, George Henry Eaton, father of plaintiffs, in possion of the land under an agreement or promise to hold and use said land as his tenant or trustee, and for such use and possession thereof he was to keep taxes against the same paid; that George Henry Eaton occupied the land from then until his death in 1912 as the tenant and trustee for James A. Eaton without claiming it; that plaintiffs, the only heirs of George Henry Eaton, after his death continued to live on the land and in continuance of the agreement to pay taxes without having or claiming title; that in May, 1922, James A. Eaton died intestate, leaving defendant as his only heir at law; that plaintiffs have never held the land adversely to James A. Eaton or to defendant, and are estopped to claim title by limitation or otherwise. Defendant prays the court to determine all interest as to plaintiffs and defendant and for relief, whether legal or equitable, and for all proper relief in the premises.

Plaintiffs' reply avers that the father of James A. Eaton and George Henry Eaton, who were half brothers, purchased the land on October 15, 1881, for the benefit of George Henry Eaton, placing him in possession, but for reasons of his own put the title to the land in James A. Eaton; that George Henry Eaton continuously from 1881 to his death occupied the land, claiming it as his own, and neither defendant nor anyone under whom she claims has been in possession or paid taxes during that period; that plaintiffs admit that James A. Eaton is dead and that defendant is his only heir. Further replying, plaintiffs aver that George Henry Eaton went into possession of the land in controversy in 1881, erected improvements and occupied it under claim of title continuously to his death. Further replying, plaintiffs say that since the death of their father, George Henry Eaton, on August 24, 1912, to this date they have been in continuous, uninterrupted, adverse possession of said land under a claim of ownership.

During the trial the parties admitted that on or about October 15, 1881, James A. Eaton purchased the land for the sum of $ 1920, receiving a warranty deed therefor recorded October 31, 1881, in Book 19 at page 591 of the records of Vernon County. It was also admitted that James A. Eaton died in May, 1922, intestate, leaving defendant as his only heir at law, his estate in Kentucky being fully administered. It was further admitted that plaintiffs are the only heirs at law of George Henry Eaton, and that the title to the land emanated from the Government of the United States in 1859. Defendant admitted that from March, 1882, until August 24, 1912, George Henry Eaton lived on the place, cultivated it, farmed it, paid taxes and, as far as she knew, appropriated the usufruct therefrom.

Plaintiffs' evidence warrants the finding that George Henry Eaton hereinafter called Henry, died August 24, 1912, and that from March, 1882, until his death...