Farmers' Bank of Polo v. Barbee

• Decision Date: 03 July 1906
• Citation: 95 S.W. 225,198 Mo. 465
• Parties: FARMERS' BANK OF POLO v. W. O. BARBEE et al., Appellants
• Court: Missouri Supreme Court

95 S.W. 225

198 Mo. 465

FARMERS' BANK OF POLO v. W. O. BARBEE et al., Appellants

Supreme Court of Missouri, Division Two

July 3, 1906

Appeal from Ray Circuit Court. -- Hon. J. W. Alexander, Judge.

Affirmed.

J. M Davis & Sons for appellants.

(1) Statements of W. O. Barbee, made in the absence of W. L. and Martha J. Barbee, that they had delivered to him a deed to the premises in controversy, were hearsay, and inadmissible in favor of plaintiff, who is privity in estate with W O. Barbee. Turner v. Belden, 9 Mo. 797; Watson v Bissell, 27 Mo. 220; Darrett v. Donnelly, 38 Mo. 492; Morey v. Staley, 54 Mo. 421; Railroad v. Clark, 68 Mo. 374; Railroad v. View, 156 Mo. 618; Diel v. Stegner, 56 Mo.App. 539; State ex rel. v. Croschke, 16 Mo.App. 557; Dodge v. Freedman's S. & T. Co., 93 U.S. 383; Gilbert v. Odom, 69 Tex. 670; Osgood v. Coates, 83 Mass. 77; Morrill v. Titcomb, 90 Mass. 100; Sangutuck Con. Ass'n v. School District, 53 Conn. 478. These self-serving statements are the only evidence in this record of the delivery of the deed to W. O. Barbee and upon them is based the finding of the court, "that in July, 1894, W. L. and Martha J. Barbee delivered to W. O. Barbee a deed for said premises." (2) The evidence conclusively shows that in 1885, W. L. Barbee was the owner of this land, that W. O. Barbee then became a tenant thereof by sufferance. This relation continued, as defendant's evievidence shows, until the day of trial. W. O. Barbee's possession was in its inception friendly and permissive. This is also the presumption of law. Meier v. Meier, 105 Mo. 431. The burden of proof was on plaintiff to show that it became and was adverse and hostile, when it became so, that W. O. Barbee gave actual notice of such adverse claim, and that thereafter and before the institution of this action such adverse and hostile possession had continued for ten consecutive years before the same had ripened into a title. Wilson v. Lersche, 90 Mo. 477; Wilkerson v. Thompson, 82 Mo. 316; Estes v. Long, 71 Mo. 609; Stevenson v. Black, 168 Mo. 561; Handlan v. McManus, 100 Mo. 124; Pitzman v. Boyce, 111 Mo. 392. (3) Any acts of W. O. Barbee consistent with the rights which he had to the premises as tenant by sufferance of his father, did not start the running of the Statute of Limitations. Downing v. Dinwiddie, 132 Mo. 99. The payment of taxes was not sufficient to show adverse possession. Chapman v. Templeton, 53 Mo. 463; Cashman v. Cashman, 123 Mo. 647.

J. E. Ball and M. M. Bogie for respondent; W. E. Fowler of counsel.

(1) This court will assume that the rulings of the trial court were correct, until the contrary be made to appear; and, when it tries a case like this, sitting as a jury, the appellate court will not weigh the evidence and determine whether the finding of the trial court was correct on the evidence. Minton v. Steele, 125 Mo. 190; Fohy v. Gordon, 133 Mo. 426; De Lassus v. Faherty, 164 Mo. 361. No declarations of law were asked by either party nor were any made by the court. Nor were any exceptions saved to the admission of evidence during the trial. As was said by Philips, C., speaking for the court in Miller v. Breneke, 83 Mo. 163: "It is, therefore, manifest that there are no errors presented in this record for this court to review." Weilandy v. Lemuel, 47 Mo. 322; Altum v. Arnold, 27 Mo. 264; Conran v. Sellew, 28 Mo. 320; Wilson v. Railroad, 46 Mo. 36; Harrison v. Bartlett, 51 Mo. 170; Cunningham v. Snow, 82 Mo. 587; Clark v. Railroad, 127 Mo. 255. (2) W. O. Barbee, being in possession of the land in controversy at the time he made the statements in regard to the ownership of the land and the deed thereto, his statements were competent. Crawford v. Ahrnes, 103 Mo. 94; Railroad v. Clark, 68 Mo. 374; Martin v. Bonsack, 61 Mo. 556; Burgert v. Berchert, 59 Mo. 80; Dunlap v. Griffith, 146 Mo. 294. They were admissible for the reason that they were statements of the defendant, W. O. Barbee, a party to the proceeding; and because it is well settled that statements by a party in possession of property are admissible to prove the nature of the possession and whether he holds it as owner, tenant, or otherwise. Foster v. Nowlin, 4 Mo. 18; Turner v. Beldin, 9 Mo. 533; State to use v. Schneider, 35 Mo. 533; Burgert v. Berchert, 59 Mo. 80; Thomas v. Wheeler, 47 Mo. 363.

OPINION

BURGESS, P. J.

This is an action of ejectment for the possession of an eighty-acre tract of land in Ray county. The petition is in the usual form, and the answer is a general denial.

The trial was by the court, a jury being waived. No declarations of law were asked or given. The court rendered judgment in favor of plaintiff, and against all of the defendants, for the possession of the land sued for, and for one cent damages.

Within four days after judgment defendants filed motion for a new trial, assigning as grounds therefor the following:

"1. The judgment of the court is against the weight of the evidence.

"2. The court erred in admitting illegal and incompetent testimony on the part of plaintiff.

"3. The court erred in excluding legal and competent evidence offered on part of defendants.

"4. The judgment of the court is against the law and the evidence.

"5. He gave erroneous declarations in the cause."

The said motion was overruled, and defendants appeal.

After the judgment was rendered, but upon the same day, the court, at the request of defendants, made a finding of facts, as follows:

"That about the year 1885, W. L. Barbee, father of W. O. Barbee, purchased the premises in controversy, taking the title thereto in his own name. That soon thereafter he placed the defendant, W. O. Barbee, on said premises. That in the year 1889, by directions of said W. L. Barbee, the assessor of Ray county, Missouri, assessed said premises to the defendant, W. O. Barbee, and that said premises since that date have been assessed to and the taxes thereon paid by said W. O. Barbee. That said W. O. Barbee, from 1889, claimed to be the owner of said premises; that knowledge of said claim was general in that community and that knowledge of said claim was at divers times brought home to the defendants, W. L. Barbee and Martha J. Barbee. That said W. O. Barbee, in 1894, and prior thereto, made lasting and valuable improvements on said premises and exercised all the rights incident to the ownership of said premises, and has continued to do so since, of all of which the defendants had knowledge. And that before the institution of this suit said W. O. Barbee's title had become absolute by adverse possession as against the defendants, W. L. Barbee and Martha J. Barbee.

"The court further finds that in July, 1894, the defendants, W. L. Barbee and Martha J. Barbee, made, executed and delivered to defendant, W. O. Barbee, a general warranty deed for said premises and that said deed has never been filed for record."

To this finding of facts the defendants excepted. The exceptions were overruled, but defendants did not except to the action of the court in overruling their said exceptions, nor do they make any point thereon in the motion for a new trial. Moreover, the finding of facts was made after judgment was rendered, and does not, therefore, constitute a part of the record, and is not before us for review. [Hamilton v. Armstrong, 120 Mo. 597, 25 S.W. 545; Loewen v. Forsee, 137 Mo. 29, 38 S.W. 712.]

Plaintiff, over the objection of defendants W. L. and Martha J. Barbee was permitted to introduce in evidence statements of the defendant W. O. Barbee, made in the absence of his co-defendants, the said W. L. and Martha J. Barbee, that they had delivered to him a deed to the premises in controversy. The objection to this testimony was upon the ground that it was mere hearsay, and inadmissible in favor of plaintiff, who is privy in estate with the defendant W. O. Barbee.

It is well settled that the declarations of a person in possession of property are not admissible as evidence in his favor, or of those claiming under him, to show title in him. [Turner v. Belden, 9 Mo. 797; Watson v Bissell, 27 Mo. 220; Darrett v. Donnelly, 38 Mo. 492; Morey v. Staley, 54 Mo. 419; Railroad v. Clark, 68 Mo. 371; Railroad v. View, 156...