Gibbany, Admr. v. Walker, 19282.

• Decision Date: 07 November 1938
• Docket Number: No. 19282.,19282.
• Citation: 121 S.W.2d 317
• Parties: CHARLES E. GIBBANY, ADMINISTRATOR OF THE ESTATE OF WESLEY S. WALKER, DECEASED, APPELLANT, v. JOHN W. WALKER AND PEARL WALKER, RESPONDENTS.
• Court: Missouri Court of Appeals

121 S.W.2d 317

CHARLES E. GIBBANY, ADMINISTRATOR OF THE ESTATE OF WESLEY S. WALKER, DECEASED, APPELLANT, v. JOHN W. WALKER AND PEARL WALKER, RESPONDENTS.

No. 19282.

Kansas City Court of Appeals. Missouri.

November 7, 1938.

Appeal from Gentry Circuit Court. — Hon. Thomas A. Cummins, Judge.

AFFIRMED.

Dean Leopard, E.L. Redman and J.W. McKnight for respondents.

Cases involving title to real estate within constitutional provision fixing Supreme Court's jurisdiction are cases in which the judgment will directly affect or operate upon the title itself. Ballenger et al. v. Windes, 93 S.W. (2d) 882. Where neither party requests adjudication of title to realty, yet court must ascertain which party has title in order to render judgment asked for by pleadings, title is incidentally or collaterally and not directly involved, precluding Supreme Court from taking jurisdiction of such case. Ballenger et al. v. Windes, 93 S.W. (2d) 882. In ejectment, proof of adverse possession may be made under general denial. Courtner v. Putnam, 30 S.W. (2d) 126, 325 Mo. 924; Carson v. Berthold & Jennings Lumber Co., 192 S.W. 1018, 270 Mo. 238. Where one is put in possession of land under a parol gift (either with or without a consideration), his possession is adverse from its inception. Brown v. Brown, 106 Mo. 611; Reader v. Williams, 216 S.W. 738; International Bank of St. Louis v. Fife, 95 Mo. 118; Coshow v. Otey, 222 S.W. 804; Allen v. Mansfield, 108 Mo. 343; Rannels v. Rannels, 52 Mo. 1008; Hargis v. Railway Co., 100 Mo. 210. Such a parol gift, admitted only to show the character of possession in an action at law, need only be proven by preponderance of the evidence and not by quantum of proof required by courts of equity in cases of specific performance and parol trusts. Reader v. Williams, 216 S.W. 738. One who holds title to realty by adverse possession for ten years or more acquires the legal title as fully as if he had a deed from the owner. Coshow v. Otey, 222 S.W. 804. The Statute of Limitations based on adverse possession bars action to recover, and also confers an independent title upon a presumption of a grant as against everyone but the government. Gill on Titles (3 Ed.), section 1379; Waddell v. Chapman, 238 S.W. 481, 187 Mo. 184; Scannell v. American Soda Fountain Company, 161 Mo. 606. Adverse possession not only bars an action but confers an independent title. Waddell v. Chapman, supra. Title by adverse possession is good for offensive as well as defensive purposes. Barry v. Otto et al., 56 Mo. 177; Ridgeway v. Holliday et al., 59 Mo. 4444; Houx v. Batten, 68 Mo. 84; Scannell v. American Soda Fountain Company, 161 Mo. 606. In ejectment evidence tending to establish the defense of limitation and adverse possession is admissible although insufficient to establish an equitable defense. Brown v. Brown, 106 Mo. 611. The parol contract between Wesley S. Walker and John W. Walker was admissible in evidence to characterize defendants' possession and to prove the intent with which possession was given by Wesley S. Walker and was taken by John W. Walker. Reader v. Williams, 216 S.W. 738; Coshow v. Otey, 222 S.W. 804; Brown v. Brown, 106 Mo. 611 (a contract case). Any facts which go to disprove an unlawful entry and wrongful withholding by defendant, constitute a legal defense in an action in ejectment. 19 C.J. 1073. A right of action accrues whenever such a breach of duty has accrued or such a wrong has been sustained as will give a right to bring and then sustain a suit. State v. Logan, 190 S.W. 75. Where parties in the sale of stock agreed to pay a certain sum of money on one day, on a subsequent day a certain other sum and at the same time to execute a note for a third sum and such acts were done on such days, the contract cannot be said to be executory merely because the note given was unpaid. Cincinnati H. & B.R. Co. v. McKeen, 64 Fed. 36, 12 C.C.A. 14. A contract becomes executed when all is done that its terms required to be performed. Cincinnati H. & B.R. Co. v. McKeen, 64 Fed. 36, 12 C.C.A. 14; 13 C.J. 245. A possession which is known to be the true owner to be adverse and which is intended by him so to be is sufficient to put in operation the Statute of Limitations, and openness and notoriety are unimportant. Dausch v. Crane, 109 Mo. 323; Coshow v. Otey, 222 S.W. 804; Burnside v. Doolittle, 24 S.W. (2d) 1011; Allen v. Mansfield, 108 Mo. l.c. 350. The rules as to weight and sufficiency of evidence in civil actions in general apply to the weight and sufficiency of evidence relating to the bar of limitations. 37 C.J. 1250, section 779; Reader v. Williams, 216 S.W. 738. "If it conceded that in this action at law the gift, proved solely to characterize an entry, must be proved by more than a preponderance of the evidence, the presence of substantial evidence of its having been made precludes our interfering with the finding on that ground, since this is not a suit in equity and the facts are not open to review on their weight." Reader v. Williams, 216 S.W. 738, l.c. 739. The theory upon which tax lists or tax returns are admitted into evidence is that such lists or returns are made under such circumstances as requires the maker to disclose the truth and are regarded as admissions which may be received in evidence in some cases. Tax assessments not prepared by the person effected stand on a different footing and as a rule are not admissible in evidence. 22 C.J. 306.

SHAIN, P.J.

This is a suit in ejectment brought by the plaintiff, administrator of the estate of Wesley S. Walker, deceased.

It appears that at its February term, 1933, the probate court made an order authorizing and directing said administrator to take possession of all real estate owned by said Wesley S. Walker at the time of his death and rent same and apply rental on payment of debts owing by said Walker at time of his death. Said order further directed said administrator to bring any action necessary to obtain possession of said real estate.

The defendant, who is a son of said Wesley S. Walker, was in possession of the portion of the real estate herein involved at the time of the death and at the time this action was brought.

The petition filed by plaintiff, after setting out matters above, states:

"Plaintiff states that as administrator of the estate of Wesley S. Walker, deceased, he was on the 10th day of February, 1933, entitled to the possession of the following described premises, of which the said Wesley S. Walker died seized, in Gentry County, Missouri, to-wit: The North Half of the Southwest Quarter (SW¼) of Section No. Twenty-one (21), Township No. Sixty-two (62), Range No. Thirty-one (31), and being so entitled to the possession thereof, defendants afterwards, to-wit: on the 10th day of February, 1933, entered into said premises, and unlawfully withholds from plaintiff the possession thereof, to his damage in the sum of Two Hundred Fifty dollars ($250.00)."

The defendants makes answer as follows:

"Come now defendants and for answer to plaintiff's petition deny each and every allegation of fact and matter therein alleged and contained.

"WHEREFORE, having fully answered defendants pray to be discharged and have their costs in this behalf expended."

Trial was had before a jury and verdict was for defendants. Judgment was entered in accordance with the verdict and plaintiff duly appealed from said judgment.

Plaintiff makes assignments of error as follows:

"I.

"The court erred in overruling the plaintiff's objection to the testimony concerning the oral contract and agreement between W.S. Walker and the defendant, John W. Walker, for the reason that such constituted an equitable defense and could not be shown under a general denial, no equitable defense having been pleaded.

"II.

"The court erred in refusing to give plaintiff's instructions No. 1A and 2A, both in the nature of peremptory instructions.

"III.

"The court erred in giving defendant's instruction No. 1, predicating the claim of adverse possession upon the executory contract therein set out for the reason that the holding could not have been adverse under such circumstances.

"IV.

"The court erred in refusing to give plaintiff's instruction No. 3A and No. 4A defining the quantum of proof necessary to prove an oral contract.

"V.

"The verdict was against the weight of the evidence and cannot stand for the reason that the proof required of a party asserting an oral contract to convey land was wanting.

"VI.

"The court erred in not permitting plaintiff to show that the land in controversy had been uniformly assessed in the name of W.S. Walker."

We will continue to refer to appellant as plaintiff and to respondents as defendants.

Plaintiff in "Points and Authorities" makes contention as to assignment No. 1 as follows:

"An equitable defense cannot be shown under a general denial."

As to assignment No. 2, contention is made as follows:

"The contract being executory, the vendee could not hold adversely to the vendor and, therefore, the statute of limitations did not begin to run.

"(a) When anything remains to be done by either party the contract is executory.

"(b) When the vendee takes possession under an executory contract, that possession is not of itself adverse but on the other hand is in recognition of the title of the vendor.

"(c) Possession to start the statute of limitations must be adverse and cannot be equivocal.

"(d) The cases holding that possession taken under a parol gift immediately becomes adverse are not in point because such constitutes an executed transaction."

As to assignment No. 3, contention is made as follows:

"In all cases of parol contracts to convey land the proof must be so clear, cogent and forcible as to leave no doubt whatever in the mind as to its terms and character."

As to assignment No. 4, claim is made as follows:

"Where a party knows that land claimed by him is assessed in the name of another the assessment roll is admissible in...