Ennis v. Korb, 48069

• Decision Date: 12 June 1961
• Docket Number: No. 48069,No. 1,48069,1
• Citation: Ennis v. Korb, 347 S.W.2d 671 (Mo. 1961)
• Parties: Essie ENNIS, Respondent, v. Joseph F. KORB et al., Defendants, Agnes Davis et al., Appellants
• Court: Missouri Supreme Court

Page 671

347 S.W.2d 671

Essie ENNIS, Respondent, v.Joseph F. KORB et al., DefendantsAgnes Davis et al., Appellants.

No. 48069.

Supreme Court of Missouri, Division No. 1.

June 12, 1961.

Rehearing Denied July 10, 1961.

Thomas M. Sullivan, Hugh B. Downey, Downey, Abrams & Sullivan, Kansas City, for appellants.

Ennis, Browne & Martin, Allan R. Browne, Kansas City, for respondent.

DALTON, Judge.

This is an action to quiet and determine title to the north twenty-seven feet of Lot 200, Altamont Addition, in Kansas City, Jackson County, Missouri.The facts constituting the claim and the prayer for relief were joined in the same count with a statement of a claim for damages for trespass to the described real estate and for the destruction of a fence.Plaintiff claimed title by adverse possession and by a conveyance (an unrecorded and lost deed) from a prior owner.No relief was asked with reference to the lost deed.Joseph Korb and Eunice Korb, who had recently purchased the property, were made defendants.After notice of lis pendens had been filed, the Korbs conveyed Lot 200 to Agnes Davis, who executed a deed of trust thereon.Thereafter, Mrs. Davis and Leo Mandl, the trustee in the deed of trust, were made defendants and defendant Davis answered and filed a counterclaim claiming title to the entire lot and asked that her title thereto be quieted and determined.

No facts were stated in either plaintiff's second amended petition or in defendant Davis' counterclaim to invoke the jurisdiction of a court of equity (both stated actions at law), but nevertheless the parties agreed that the action for damages would be tried to a jury and the actions to quiet and determine title would be tried to the court without the aid of a jury; and that the evidence in support of the several claims would be heard at the same time and on substantially the same evidence.Only a part of the evidence was not heard by the jury.At the conclusion of all the evidence, the issue of damages for trespass to real estate and for the destruction of the fence was submitted to the jury and a verdict was returned in favor of defendants.The issue of title was submitted to the court, sitting without the aid of a jury, and the court found that 'the issues as to quieting title, as set forth in plaintiff's second amended petition for damages and other relief and in the counterclaim of defendant Davis, should be determined in favor of plaintiff and against all defendants.'

The court entered a judgment on the jury's verdict in the action for damages for trespass in favor of defendantsJoseph F. Korb and Eunice M. Korb and against the plaintiff.The court further entered judgment quieting and determining title in plaintiff to all of the north twenty-seven feet of Lot 200, Altamont Addition to Kansas City, 'except a rectangle in the southeast corner of said north twenty-seven (27) feet, said rectangle measuring fourteen (14) feet east and west and twenty-one feet north and south', and declared that plaintiff was the fee simple owner thereof free and clear of all liens and encumbrances or of any claim by any of the defendants.The court further fixed the reasonable market value of the plaintiff's portion of said Lot 200 at $300, as of the 1st of August, 1957, and assessed one half of the costs against the plaintiff and the remaining one half against the other defendants.

Defendants Davis and Trustee Mandl have appealed from the judgment as entered, but make no complaint of the trial court's failure and refusal to quiet the title to the remaining portion of Lot 200 in defendant Davis.Instead, appellants contend that the court erred in holding that the plaintiff had acquired title to a portion of said Lot 200 by adverse possession for the statutory period.They insist (1) that the possession, if any, by the plaintiff was permissive and not adverse; and (2) that there was no evidence that the possession, if any, of plaintiff was actual, open or notorious.

Plaintiff's evidence tended to show that she owned a residence, referred to as 3125 Michigan Avenue; and that the lot on which the residence was located faced west on the east side of Michigan Avenue.The front portion of the residence was about six feet from the south line of plaintiff's lot, but the lot was narrower in the rear and the south end of the back porch of plaintiff's residence extended about two feet over onto the rear of the adjacent lot, which adjacent lot was fifty feet wide east and west, and faced south on the north side of Linwood Boulevard.This property (1904 Linwood) was the second lot east of Michigan Avenue.The first or corner lot, at Michigan and Linwood, had been owned by defendant Davis for some years.The rear of her lot also adjoined the south side of plaintiff's lot, but, as stated, the south side of plaintiff's house was further from the rear or north part of this lot than it was from the next lot to the east, on which lot plaintiff's house encroached.As stated, defendant Davis, after this litigation started, acquired Lot 200, and the residence thereon, 1904 Linwood, from the Korbs.The rear (or north wall) of a garage or shed located in the northeast portion of Lot 200 was about five feet from the south end of plaintiff's porch, where it extended across the line onto Lot 200.There was a walk of stones or concrete slabs extending from the front to the rear along the south side of plaintiff's residence.The walk extended upon and over the five foot space between plaintiff's back porch and the rear of the garage on Lot 200.There was a gate across the walk, between the garage and the porch.The gate opened into plaintiff's back yard.There was a fence from the southwest corner of this garage west to the west line of the lot, a distance of thirty-six feet.The fence then extended south along the west line of the lot to where it was attached to the house on Lot 200.

It was stipulated between the parties that, in 1938, the record title to Lot 200 (1904 Linwood) was in Jessie L. Griffith; that the Korbs had obtained a deed on February 15, 1956 from the devisee under Miss Griffith's will; and that the Korbs had executed a deed to defendant Davis on July 29, 1958.The suit had been filed August 9, 1957, and the notice of lis pendens was filed December 5, 1957.

Plaintiff testified that she had resided at 3125 Michigan Avenue since 1920; that, in 1938, she first learned that a portion of her house was upon the adjacent lot owned by her close personal friend Jessie L. Griffith; that when she discovered this fact she went over to see Miss Griffith; and that following that visit a fence was built on the Griffith lot from the southwest (front) corner of the garage or shed on the Griffith property west to the west lot line.This fence was built twenty-seven feet south of the north line of the Griffith lot and separated the rear portion of the Griffith lot from the front portion where the residence was located.The fence was made of woven wire with iron posts.The fence had an iron-rail top, which extended through the top of the iron posts.There was no opening in the fence.The fence was up continuously from 1938 to 1957, when it was taken down by Mr. Korb.The garage and its overhang occupied a space fourteen feet wide and twenty-one feet deep.It lacked about six feet of extending to the rear line of Lot 200.While there were doors on the west side of the garage or shed, plaintiff had seen them opened only once in some twenty years and that was when Miss Griffith opened a door to admit plaintiff to the garage to see something Miss Griffith had stored therein.The only way one could reach the disputed area from the Linwood side was to go around the west side of the fence by a big tree, but it was rough in there and just about wide enough for a person to get through.

Subsequent to 1938, the plaintiff took care of the area north of the fence (between her house and the fence).She planted flowers and shrubs thereon and had a beautiful yard and a bath for birds.She claimed and asserted ownership and possession of the property between her house and the fence for more than nineteen years.No one else claimed it or asserted ownership thereto.She had the lawn mowed over the area whenever she had her front yard mowed, and she kept it in nice shape.No one ever protested her occupancy, or any use of the premises.She offered to pay taxes on it, but the collector refused and said the tax on the whole lot would have to be paid, as they could not divide it.

When Mr. Korb started taking down the fence after he got a deed to Lot 200, the plaintiff protested that the fence belonged to her.She said there had always been a passageway between the garage or shed (on Lot 200) and her house and there was a gate, which opened into the rear of plaintiff's lot.Plaintiff protested when Mr. Korb tore down the gate.She said there had been a walk along the south side of her house ever since the house was built.(She had lived in the house since 1920.)This walk was located on the rear of Lot 200, since the walk passed south of that part of plaintiff's house which extended about two feet over the north line of Lot 200.Mr. Korb claimed the land up to plaintiff's house, put up cords and fastened them to nails in her house and shut plaintiff off from the path on the south side of her house.She objected to Mr. Korb's action.There was evidence that plaintiff had planted some flowers on the terrace at the rear of the corner lot, but plaintiff said she did so with the permission of the then owner, Mrs. Maris.There were no weeds, bottles, brush or garbage on the rear of Lot 200, when plaintiff had it; that, if any were there, that was after Mr. Korb tore down the fence and took charge of it.Plaintiff had never made claim to any part of the corner lot owned by Mrs. Maris and, since 1949, by Mrs. Davis.

Plaintiff further testified that on one occasion Miss Griffith took her down to Omar...