Fields v. Jacobi

• Decision Date: 02 December 1915
• Docket Number: No. 17297.,17297.
• Citation: 181 S.W. 65
• Parties: FIELDS et al. v. JACOBI et al.
• Court: Missouri Supreme Court

181 S.W. 65

FIELDS et al. v. JACOBI et al.

No. 17297.

Supreme Court of Missouri, Division No. 1.

December 2, 1915.

Motion for Rehearing and to Transfer to Court In Banc Denied December 21, 1915.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Ejectment by Della M. Fields and others against F. Gotlieb Jacobi and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded, with directions.

Ejectment in the circuit court of Audrain county, Mo., by Della M. Fields and Gertrude Gurwell, to recover possession of an undivided one-third interest in the N. ½ of N. E. ¼, S. E. ¼ of N. E. ¼, and N. E. ¼ of S. E. ¼ of section 17, township 50, range 7, in said county. Also the undivided one-third of the E. ½ of S. W. ¼ of section 20, township and range aforesaid, containing in all 240 acres of land. The answer contains a general denial, and also avers that defendants are the owners of said land; that plaintiffs have no title thereto, nor interest therein. A jury was waived; evidence heard; defendants' instructions refused; judgment entered for plaintiffs for possession of an undivided two-ninths interest in said 160 acres in section 17 aforesaid; for damages amounting to $77.77 and for $5.56 monthly rents. The trial court found against plaintiffs as to the 80 acres of timber in section 20 aforesaid, "title thereto having passed by the deed made by Amos Hoselton."

John Hoselton, of Illinois, is the common source of title, and on January 5, 1880, executed a will, which was duly probated in said state, February 2, 1880. Three separate copies of said will were respectively filed in the recorder's office of said Audrain county on December 29, 1891, on October 13, 1892, and on January 25, 1899. Paragraph 3 of said will reads as follows:

"I give and devise all the rest, residue and remainder of my real estate, 240 acres lying in Audrain county, Missouri (to my son Amos Hoselton) as long as said Amos Hoselton shall pay or cause to be paid taxes on said land, and in case of a failure to pay taxes, the said land to go to his four children, viz.: — Henry, Mary Augusta, Linwood and Bob Hoselton."

Amos Hoselton died in Arkansas in October or November, 1906. He left a widow, Mary E. Hoselton, who is still living and has never married again, four children by his first wife, Henry Hoselton, Mary Augusta Hoselton, Linwood Hoselton, and Robert Hoselton, and two children by his wife, Mary E. Hoselton, who are the plaintiffs in this action. All of said children were of age at the time of trial, December 15, 1911. Amos Hoselton married Mary E. Hoselton — his second wife — December 18, 1879, and about 17 days before his father, John Hoselton, executed his will aforesaid (January 5, 1880). After the marriage of Amos and Mary E. Hoselton in 1879, they lived upon said 240 acres, and occupied the same as their homestead for 11 years, or until November, 1890, when Amos abandoned and deserted his wife, went to Arkansas, furnished her no support, paid no taxes thereafter on said land, and remained in Arkansas until his death in 1906. Della Fields married in 1901, and was then between 18 and 19 years of age. Gertrude Gurwell was born April 11, 1890, the year her father left. The date of her marriage is not stated. These plaintiffs lived upon said 160 acres with their mother as a homestead from 1890 until their marriage. The widow remained upon said 160 acres and occupied the same as her homestead from 1890, when her husband left, until she sold her interest in said land on December 22, 1904, to the four children of Amos by his first wife, for the expressed consideration in the quitclaim deed made to them at the time of $1,550. "It was admitted that Mary E. Hoselton paid the taxes on the land until 1904."

On January 25, 1899, Mary E. Hoselton filed in the probate court of Audrain county, Mo., a declaration of homestead as to said 160 acres in section 17 aforesaid, and alleged therein that the interest of Amos in said land did not then exceed in value $1,500. The evidence tends to show that during the years 1908, 1909, and 1910, the 160 acres was worth $45 to $50 per acre, and the 80 acres of timber was worth $15 to $20 per acre. The rental value of the 160 acres was from $300 to $325, and the 80 acres $25 to $35 a year, during said period.

Plaintiffs rely upon the theory that their father, Amos Hoselton, died the owner of this land in 1906, without having made any valid conveyance of same; that by reason of his death they have inherited the undivided two-ninths of said land. Plaintiffs further rely on the doctrine of res judicata, as the four children in 1898 sued the widow in ejectment to recover possession of said land, were defeated in said action, and at the trial read in evidence in said cause a deed from Amos Hoselton, not joined in by his wife, Mary E. Hoselton, conveying said 240 acres to said four children, and which said deed was declared void as to said homestead, on account of the failure of Mary E. Hoselton to join in same; she having a homestead in said land, and having paid the taxes thereon, prior to the attempted alienation of same by her husband. The four children appealed said cause to the Supreme Court, and Division 2 thereof affirmed the judgment in favor of the wife. See 166 Mo. 182, 65 S. W. 1005.

(1) Defendants claim title on account of conveyances from the four children of Amos, by his first wife, to them.

(2) They contend that Amos had simply a life estate in said land, and at his death it passed to them by virtue of their deed from said children.

(3) They assert that the widow sold and conveyed in 1904 her homestead, etc., in said land to the four children aforesaid, and that thereafter these plaintiffs had no further interest in said land.

(4) They charge that Amos refused to pay the taxes on said land after 1890; abandoned same; left the state; and recognized said four children as the owners thereof, by conveying said land to them by warranty deed in 1898 for the expressed consideration of $4,000.

(5) They claim that the deed last described was ratified by Mary E. Hoselton, as she signed and acknowledged same in 1905 and thereby, in conjunction with her husband, passed the fee-simple title in said land to said four children.

The foregoing and other questions presented by the record will be discussed in the opinion which is to follow.

Fry & Rodgers, of Mexico, Mo., for appellants. David H. Robertson, of Mexico, Mo., for respondents.

RAILEY, C. (after stating the facts as above).

John Hoselton — the common source of title — by his will executed in Illinois January 5, 1880, conveyed to his son Amos whatever title the latter acquired to the 240 acres in controversy by paragraph 3 of his will, which reads as follows:

"I give and devise all the rest, residue and remainder of my real estate, 240 acres lying in Audrain county, Missouri (to my son Amos Hoselton) as long as said Amos Hoselton shall pay or cause to be paid taxes on said land, and in case of a failure to pay taxes, the said land to go to his four children, viz.: — Henry, Mary Augusta, Linwood and Bob Hoselton."

Appellants contend that Amos simply acquired a life estate in said land by the terms of the will aforesaid, and that at his death in 1906 their grantors became the absolute owners of said land in fee simple. On the other hand, respondents — children of Amos by his second wife — claim that their father died in 1906, as the absolute owner in fee of said land, subject to the homestead right and inchoate dower of their mother, Mary E. Hoselton, and that by reason thereof they are entitled to the possession of the undivided two-ninths interest in said land. The above conflicting contentions require us to determine whether Amos had simply a life estate, or the fee-simple title to said land, at the time of his death in 1906.

Section 4650, R. S. 1899, and section 583, R. S. 1909, provide that:

"All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them."

Upon the record before us we have no means of ascertaining the true intent and meaning of said paragraph 3, aside from the will itself. In Hoselton v. Hoselton, 166 Mo. 182-188, loc. cit. 65 S. W. 1005, the grantors of defendants sued Mary E. Hoselton in ejectment in 1898 to recover possession of said 240 acres. The above paragraph of John Hoselton's will was introduced in evidence, and construed by Division 2 of the Supreme Court, to convey to Amos an estate in fee, subject to a conditional limitation. The conclusion reached by Judge Burgess in the above case, on the facts disclosed by the record, is sustained by the authorities. Devlin on Deeds (2d Ed.) § 974; Tiedeman on Real Property (2d Ed.) § 281; Tiedeman on Real Property (3d Ed.) § 200, and following. The foregoing contention of respondents, in the absence of any further evidence upon the subject, is ruled against appellants.

II. Amos and Mary E. Hoselton were married December 18, 1879, and lived upon the land in controversy from said date, as their homestead, until November, 1890. Respondents are the only living children by said marriage. They were both of age and married when this action was commenced in April, 1911. Both respondents were minors and lived upon said homestead with their mother until 1901. In November, 1890, Amos abandoned said homestead, wife, and children, went to the state of Arkansas, and never returned to Missouri, prior to his death in 1906. He never paid, or authorized any one to pay, the taxes on said land after he left in 1890, and never thereafter furnished his wife or children aforesaid any means for their support. It is conceded that Mary E. Hoselton paid all the taxes due on said land from 1890 to 1904, and also paid back taxes thereon. On January 25, 1899, she executed and filed for record in the recorder's office of ...