Franklin v. House, 35755
| Decision Date | 03 February 1976 |
| Docket Number | No. 35755,35755 |
| Citation | 533 S.W.2d 243 |
| Parties | Maud FRANKLIN, Respondent, v. Paul H. HOUSE and Marie House, his wife, Appellants. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
Raymond H. Dickhaner, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for appellants.
Charles W. Medley, Farmington, for respondent.
Defendants have appealed from a judgment quieting title as between the parties to certain land in St. Francois County.
Plaintiff alleged that title to 'The East Half of South Half of Northeast Quarter of Section 13, Township 38 North, Range 4 East, containing 17.50 acres, more or less,' 1 was vested in her 'by limitations under the provisions of RSMo 1969, 516.101 (§ 516.010?) in that plaintiff and those under whom she claims have occupied said land openly and under color of title for more than ten years,' but that defendants 'appear to have a claim or title or record adverse to a portion of the land,' said portion being the 'North five acres of the Southeast one-quarter of the Northeast one-quarter of Section 13, Township 38 North, Range 4 East.' Defendants' answer was a general denial, except that they admitted they have 'record title (to) and own the North 5 acres' as described in the petition.
James Franklin, son of plaintiff, testified that his father (not living at time of trial) and mother purchased the land described in the petition in 1963, but he did not say from whom. He further stated that the northern boundary line of the tract was 'the east-west section line of Section 13' 2 at which place there was a fence that had been there for 12 to 15 years and which ran through some oak trees. He also stated that all of his mother's land was fenced, and that she 'always claimed that portion that is fenced.'
Without objection Exhibit A was admitted into evidence. It consists of five 'Certificates of Title' issued by the St. Francois County Abstract Company and signed by its President. In the earliest, dated June 16, 1961, it is stated that 'We have examined the records of the offices of the Recorder of Deeds and Courts of Record for the County of St. Francois, in the State of Missouri and HEREBY CERTIFY that the record title * * * (to) the East Half of South Half of the Northeast Quarter of Section 13, Township 38 North Range 6 East, containing 17.50 acres, more or less * * * is well vested in fee simple in Burl A. Koester and Jesse V. Koester, his wife.' The other four 'Certificates of Title' contain the same description and apparently purport to show changes in ownership, the final one reciting that on March 1, 1963, title in fee simple was vested in Walter W. Franklin and Maud M. Franklin his wife. 3
Defendants introduced in evidence a copy of a general warranty deed, dated July 3, 1971, from Vitella C. Smith to them conveying certain land, a part of which was described as the 'North 5 acres of the Southeast 1/4 of the Northeast 1/4 of said Section 13,' Township 30 North, Range 4 East.
The court found 'that plaintiff and those under whom she claims title have occupied said land openly and under color of title for more than ten years,' and decreed that 'plaintiff is vested with fee simple title' to the property.
In view of the description of the land contained in the judgment, and the fact that defendant's claim to land located in the Southeast Quarter of the Northeast Quarter of said Section 13 is limited to the North five acres thereof, there are only two and one-half acres to which both parties make a claim.
We need not determine whether the certificates of title, clearly hearsay, were competent over objection to prove anything. They were, in effect, admitted into evidence by agreement. At most, they tend to establish a record title in plaintiff extending back as far as 1961. But, plaintiff does not rely on record title to establish her right to possession as against defendants. Her alleged claim is that of adverse possession, and the trial court based its judgment on adverse possession.
In order to establish title by adverse possession, plaintiff had the burden of proving that she, and those under whom she claims, had possession of the land so claimed for the statutory period, and 'that such possession was actual, hostile, under claim of right, open and notorious, exclusive and continuous for the whole prescribed period of time.' Beldner v. General Electric Company, 451 S.W.2d 65 (...
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