Falvey v. Hicks

• Decision Date: 30 July 1926
• Docket Number: No. 24604.,24604.
• Citation: 286 S.W. 385
• Parties: FALVEY et al. v. HICKS et al.
• Court: Missouri Supreme Court

286 S.W. 385

FALVEY et al. v. HICKS et al.

No. 24604.

Supreme Court of Missouri. Division. No. 1.

July 30, 1926.

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

Action by Patrick Falvey and others against Mary Agnes Hicks and others, in which defendants filed a cross-bill. Judgment for plaintiffs, and defendants appeal. Reversed and remanded for further proceedings.

W. B. & Ford W. Thompson, of St. Louis, J. W. Hays, of Hannibal, and James E. King, of St. Louis, for appellants.

William Hilkerbaumer and Igoe, Carroll, Higgs & Keefe, all of St. Louis, for respondents.

SEDDON, C.

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 reassigned 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, R. S. 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; 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 then 10 years, a plea that the cause of action set up by defendants did not accrue within 10 years next before the commencement of the action, nor within 24 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 collector of the city of St. Louis against Mary Connelly as defendant for taxes against the property; the property was sold under execution issued on said judgment, and one Nicholas Wilhelm became the purchaser and received a sheriff's deed in August, 1898. On September 6, 1900. Wilhelm executed a quitclaim deed to the property to Bridget Conway, and in January 1902, Bridget Conway and her husband executed a warranty deed for the east 25 feet of the lot to the plaintiffs, and in 1903 executed to plaintiffs a warranty deed for an additional strip of 5 feet. In " March, 1918, Bridget Conway executed to plaintiffs a warranty deed for all of the property in controversy. The introduction of these deeds, and of the sheriff's deed, was objected to by defendants on the ground that Mary Connelly had only a life estate in the property and was the sole defendant in the suit for taxes. At this time counsel for plaintiffs announced that their title was based on adverse possession, and these deeds were admitted for the purpose of showing that they claimed adversely and claimed title while in possession.

"In 1902 the plaintiffs erected a dwelling house on the east part of the lot, being the part embraced in the deeds theretofore made to them by Bridget Conway and her husband, and they lived there until about 1911, and after that rented it to others and collected the rents afterward. They, with Mr. Conway, also enlarged the house on the west part of the lot, the original dwelling of Thomas Connelly. The evidence showed that the general and special taxes on the property had been paid by plaintiffs, and by Bridget Conway after the execution of the deeds mentioned.

"The evidence further showed that there was a fence around the whole of the property for many years, antedating the conveyance to plaintiffs, and that about 1902 the plaintiffs erected a fence across the lot between the two houses. This suit was filed August 25, 1921, or 9 years after the death of Mary Connelly, the widow of Thomas Connelly. The cross-bill of defendants was filed December 9, 1921. Both parties offered instructions in the nature of declarations of law. The court gave the declarations asked by plaintiffs, and refused all those offered by defendants, and rendered judgment in favor of the plaintiffs.

"I. The plaintiffs have filed their motion to dismiss the appeal for failure to comply with the rule 15, and upon the ground that the assignment of errors set out in defendants' brief does not specifically and distinctly allege the errors claimed to have been committed by the trial court. The brief contains five assignments of error. The first is so general as to be within the rule announced in Vahldick v. Vahldick, 264 Mo. 529. 175. S. W. 190, but the second assigns error in the refusal of the declarations of law offered by defendants, the fifth assigns error in the giving of the declarations of law offered by the plaintiffs, and the fourth assigns error in admitting evidence for plaintiffs over defendants' objections. The third is that the decree is against the law and against the weight of the evidence, and against the law under the evidence, and is for the wrong party. The errors assigned here are substantially those in the motion for a new trial. Under the head of `Points of Law and Fact,' counsel have stated certain contentions made by them under various phases of the evidence, and have cited authorities in support thereof. Under the holdings in Kirkland v. Bixby, 282 Mo. 462, 222 S. W. 462, and Osagera v. Schaff, 293 Mo. 333, 240 S. W. 124, the motion to dismiss is overruled.

"II. Counsel for plaintiffs insist here that the suit is one at law, and therefore the finding of the trial court must be affirmed unless error was committed in the admission or rejection of evidence, or in the giving or refusal of instructions. Counsel for defendants insist that it is a suit in equity, and that the finding is reviewable as such. The defendants claimed title as heirs at law of Thomas Connelly, deceased, who, it was admitted, had all the title to the property that had emanated from the government, and claimed that...