Falvey v. Hicks

• Decision Date: 30 July 1926
• Docket Number: 24604
• Citation: 286 S.W. 385,315 Mo. 442
• Parties: Patrick Falvey et al. v. Mary Agnes Hicks et al., Appellants
• Court: Missouri Supreme Court

286 S.W. 385

315 Mo. 442

Patrick Falvey et al. v. Mary Agnes Hicks et al., Appellants

No. 24604

Supreme Court of Missouri

July 30, 1926

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Reversed and remanded.

W B. & Ford W. Thompson, J. W. Hays and James E King for appellants.

(1) The land in question being the homestead of Thomas Connelly at the date of his death, his widow was entitled to a life estate therein. Laws 1875, p. 60; West v. McMullen, 112 Mo. 405. (2) The deed from the sheriff in execution of the judgment for taxes, where the life tenant alone was made party defendant, would convey only the interest of the life tenant. (3) The testimony of the plaintiffs themselves clearly shows that their claim of title is based upon the sheriff's deed, and nothing else, and that the second deed which they procured from Mrs. Conway in 1918, six years after the death of the life tenant, who died August 22, 1912, conveyed nothing, since Mrs. Conway had already in 1902 by warranty deed to them disposed of all right, title or interest which she had obtained by mesne conveyances from the sheriff's deed. (4) No title by adverse possession could begin to run against the remaindermen until the death of the life tenant, the widow. Wells v. Eggers, 259 S.W. 437; Carr v. Barr, 294 Mo. 673; Hall v. French, 165 Mo. 430; Mathews v. O'Donnell, 289 Mo. 235; Case v. Sipes, 280 Mo. 110; Willis v. Robinson, 291 Mo. 650. This suit was filed by the plaintiffs on August 25, 1921; the widow Connelly died August 22, 1912; the case was tried and judgment entered on June 12, 1922. Therefore the ten-year Statute of Limitations could not have run. (5) The color of title possessed by the plaintiffs and relied upon was the sheriff's deed, and that deed conveyed only the life estate, which was the sole interest of the sole defendant in the tax suit. Vance v. Corrigan, 78 Mo. 98; Land & Lumber Co. v. Moss Tie Co., 87 Mo.App. 176; Taff v. Tallman, 277 Mo. 157. The widow held no record title whatever, the record showing the land in her husband, Thomas Connelly, then deceased.

William Hilkerbaumer and Igoe, Carroll, Higgs & Keefe for respondents.

(1) There is nothing to consider on this appeal. The assignments of error, if any one of them should be sufficient in form, do not raise the questions discussed in the brief of appellants. There is no assignment of error, nor ground for new trial in the motion for new trial claiming that there is no evidence to support the judgment. Neither number 1 nor number 3 of the assignment of error is sufficient. Vahldick v. Vahldick, 264 Mo. 529; Freck v. Ins. Co., 279 Mo. 156; Nelson v. Cowles, 193 S.W. 579. Number 4 is not sufficient. Machen v. Cape Girardeau, 242 S.W. 131. Neither are numbers 2 and 5 sufficient under the authorities cited above. Number 5 is insufficient for the further reason that it is not error that instructions are against the evidence or the weight of the evidence. The assignments of error are merely repetitions of five out of the six grounds stated in the motion for a new trial. (2) The actual and exclusive possession of the premises in controversy by respondents and their predecessors, and the improvement of the same by making permanent additions thereto consisting of additional rooms, flooring, roof, weatherboarding, etc., to the old house and the erection of an entirely new house, sheds, vault, sidewalks, fencing, including a division fence, paying special improvement taxes for streets and sewers, general taxes, conveying the premises by warranty deeds as far back as 1902, mortgaging the same, and many other circumstances, all as shown by the verbal testimony and the exhibits in the record, are not only substantial and ample evidence of the adverse character of the possession, but are convincing, and could lead to no other conclusion than that reached by the trial court. Saucier v. Kremer, 249 S.W. 640; Turner v. Hall, 60 Mo. 271; Swope v. Ward, 185 Mo. 316; Mississippi County v. Vowels, 101 Mo. 225; Dunlap v. Griffith, 146 Mo. 283; Bene v. Miller, 149 Mo. 237; Pharis v. Jones, 122 Mo. 131; 2 C. J., 269 to 275. (3) Title by adverse possession is an independent title and may be set up by any one even as against his own grantor and those under whom he derives some title and where there is a common source of title. Macklot v. Dubreuil, 9 Mo. 477; Wilcoxson v. Osborn, 77 Mo. 632; Perkins v. Irvin, 200 Mo. 490; Waddell v. Chapman, 238 S.W. 483.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This cause was ruled by this Division of this court in an opinion filed on April 13, 1925. A rehearing was granted, however, and the cause was subsequently orally argued and submitted upon supplemental briefs filed by the respective parties. After rehearing and submission, the case was re-assigned to the writer to prepare an opinion expressing the conclusions and judgment of this court. The original opinion was written by my learned brother and associate, Commissioner Lindsay, and received the concurring votes of three of the then judges of this Division, Judge Atwood not sitting, because he was not a member of this court at the time the cause was originally argued and submitted. The original opinion fairly states the facts and rightly, we think, applies the law to the facts. We are still of the conclusion that the original opinion correctly ruled this appeal in so far as the homestead proper is involved, and it is therefore embodied herein and made a part of this opinion, the writer hereof confining himself solely to a discussion and ruling of the additional points raised by the respective parties upon rehearing. In our original opinion, which is adopted and made a part hereof, this court, speaking through Lindsay, C., said:

"The plaintiffs, being in possession of certain real estate in the city of St. Louis, brought suit, setting up the provisions of Section 1311, Revised Statutes 1919, and asked for a decree vesting in them title to said real estate, by limitation under the provisions of said section. The defendants answered, denying generally and specifically the allegations of the petition, made in conformity with said section, and by way of further defense and cross-bill pleaded that one Thomas Connelly acquired title to the premises in fee simple, in August, 1875, took possession thereof, and with his wife, Mary Connelly, occupied the same as his homestead until his death, about the year 1880; that Thomas Connelly died intestate, and had no children, and that there were no children born of the marriage of Thomas Connelly and Mary Connelly; that Mary Connelly, as the widow, was entitled to occupy said premises as a homestead during her natural life and until her death, which occurred August 22, 1912; that thereupon and thereafter the defendants, nephews and nieces, and the only heirs at law of Thomas Connelly, deceased, were entitled to the possession of the premises as tenants in common, and as such entitled to partition. The defendants prayed judgment for possession of said real estate, for the monthly rents and profits, and for a decree in partition. The reply was a general denial, followed by a plea of adverse possession by plaintiffs for more than ten years, a plea that the cause of action set up by defendants did not accrue within ten years next before the commencement of the action, nor within twenty-four years before the commencement of the action, and a renewal of the plea setting up facts by which it was alleged that defendants were barred under the provisions of Section 1311. Upon the trial plaintiffs dismissed their petition and announced they would try the case, and the case proceeded, upon the cross-bill of defendants and the reply of the plaintiffs, to which defendants filed a general denial. It was shown that the property in dispute was conveyed to Thomas Connelly by a deed made June 28, 1875, executed by the Union National Bank of St. Louis, and at that time the plaintiffs admitted that by said deed he took whatever title had emanated from the Government, but counsel stated that they did not admit any common source of title. Afterward, when the deed made by Bridget Conway to plaintiffs for a part of the lot in controversy (hereinafter referred to) was offered in evidence, the following occurred:

"'Mr. Thompson: We want to object to that deed, for this reason, your Honor, that it appears that this party had no title to the property, the grantors, legal or equitable; that the admission in this case is that the title in this property was in Thomas Connelly, and that at the time of his death he left a widow, and that the widow occupied this property as her homestead until 1912, and this deed is made in 1903.

"'The Court: The common source of title was already admitted.

"'Mr. Hilkerbaumer: Our title is based on possession, adverse possession.

"The Court: The objection will be overruled.'

"The property in dispute is a triangular piece of ground fronting on Hunt Avenue. The dwelling of Thomas Connelly was toward the west end of the lot, and is numbered 4478 Hunt Avenue. This was occupied by Thomas Connelly, with his wife, Mary, as a homestead until the death of Connelly in 1880. The evidence shows conclusively that they had no children, and that Thomas Connelly left no will, and that Mary Connelly continued to live in this dwelling until her death on August 22, 1912. Shortly after the death of Thomas Connelly, Bridget Conway, a sister of the widow, Mary Connelly, with her husband, James and their two sons and a daughter Mary Conway, came to live with Mary Connelly in this dwelling house. Mary Conway afterwards, in 1900, was married to Patrick Falvey, and she and her said husband are the plaintiffs herein. In 1897 a judgment was rendered in a suit by the...