Friesz v. Butcher

• Decision Date: 20 December 1916
• Docket Number: No. 18213.,18213.
• Citation: 191 S.W. 66
• Parties: FRIESZ v. BUTCHER et al.
• Court: Missouri Supreme Court

191 S.W. 66

FRIESZ v. BUTCHER et al.

No. 18213.

Supreme Court of Missouri, Division No. 1.

December 20, 1916.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action in ejectment by A. L. Friesz against J. W. Butcher and others. There was judgment for plaintiff, and defendants appealed to the Kansas City Court of Appeals, the cause being certified to the Supreme Court on account of title to real estate being involved. Cause reversed.

This is an action in ejectment to recover possession of about 2¼ acres of land, lying in a wedge shape, and located in the southwest quarter of the northwest quarter of section 12, township 54, range 21, Chariton county, Mo., and more particularly described in the petition, as follows:

Beginning at a point 11.65 chains east of the quarter section corner between section eleven (11) and twelve (12), in township fifty-four (54), range twenty-one (21), in the county of Chariton, in the state of Missouri, thence due east on said line 3.26 chains, thence north 14.43 chains, thence south 11.30 west 6 chains, thence south 13.30 west 8.80 chains to the place of beginning.

The answer contains a general denial; an allegation of ownership in himself, and a plea of title by adverse possession under the ten-year statute of limitations. The reply is a general denial.

Plaintiff's Case.

Respondent offered in evidence the will of W. F. Seneker, dated October 5, 1899, entered for probate on March 20, 1902, and recorded in Chariton county aforesaid, on the same day. The second clause of said will provides for Nancy C. Seneker, wife of testator, among other things, as follows:

"* * * I also will to her the use, control and product of the following described real estate composing my home place and described as follows, to wit: * * * Also, thirty (30) acres west part of southwest quarter of northwest quarter of section twelve (12) township fifty-four range twenty-one; * * * all in Chariton county, Missouri, to have and to hold the same during her natural life or so long as she remains my widow, but in the event that she marry again the farm above described to revert to my two daughters Jessie A. and Francis A. Seneker with the rents and products thereof."

Clause 3 of above will reads as follows:

"I will and give to my two daughters Jessie A. Seneker and Francis A. Seneker in fee simple as their absolute property, the following real estate situate in Chariton county, Missouri, to wit: * * * Also thirty (30) acres west part of the southwest quarter of the northwest quarter of section twelve (12) township fifty-four (54) range twenty-one (21) subject to the use of their mother Nancy C. Seneker as set forth in paragraph `two' of this will."

The fourth clause of said will is in the following language:

"To my son Charles F. Seneker I will and bequeath all of that part of the southwest quarter of the northwest quarter of section twelve (12) township fifty-four (54) range twenty-one (21) lying east of a ditch running north and south through said tract of land, containing ten acres more or less, to have and hold during his natural lifetime and at his death to become the absolute property of his legal heirs at law."

On April 14, 1900, testator added a codicil to said will, which reads as follows:

"I hereby revoke so much of paragraph 4 in this will as refers to a certain tract of land willed to my son Charles F. Seneker under certain conditions, and hereby will and bequeath to him land in said paragraph described as his absolute property to use, enjoy, sell or dispose of after my death as he pleases."

Plaintiff likewise read in evidence a warranty deed, dated November 19, 1909, executed by the widow of W. F. Seneker, Francis A. Seneker, and Jessie A. Seneker and her husband, to A. L. Friesz, the plaintiff herein, conveying to him 30 acres, the west part of the southwest quarter of the northwest quarter of section 12, township 54, range 21.

It was agreed between counsel that the land described in petition was in possession of defendant at the date of trial, and that defendant J. W. Butcher holds the fee-simple title to the lands conveyed by the will in evidence to C. F. Seneker, as set out in clause 4 of said will and described as:

"All that part of the southwest quarter of the northwest quarter of section 12, township 54, range 21, lying east of a ditch running north and south through said tract of land, containing ten acres more or less."

Thereupon plaintiff rested.

Demurrer to Evidence.

At the conclusion of plaintiff's case supra, defendant interposed a demurrer to the evidence, which was overruled.

Defendant's Evidence.

Defendant read in evidence his deed from C. F. Seneker to himself, dated July 25, 1902, conveying —

"ten acres more or less, being that part of the southwest quarter of the northwest quarter of section 12, township 54, range 21, being and lying east of the Hickman Slough ditch, running north and south through said tract of land and being the east part of said tract, line to be in the center of said ditch."

The petition in this cause was filed August 12, 1913, and the case was tried at the September term, 1913.

The evidence is conclusive that the ditch referred to by testator in paragraph 4 of his will, running north and south on west side of appellant's 10 acres, was there when the will was made, and so remained until it was widened. The evidence is likewise conclusive that defendant, in the fall of 1902, or spring of 1903, took possession of the 10 acres east of said ditch and continued in possession of same up to the date of trial in September, 1913. It appears from the evidence that in the spring of ...