Gray v. Shelton
| Decision Date | 20 March 1926 |
| Docket Number | 25137 |
| Citation | 282 S.W. 53 |
| Parties | GRAY et al. v. SHELTON |
| Court | Missouri Supreme Court |
James V. Billings, of Kennett, for appellant.
L. R Jones, of Kennett, for respondents.
This is a suit brought under section 1970, R. S. 1919, to quiet title and in ejectment. The case was tried to a jury in the circuit court of Dunklin county, February 20, 1923, resulting in a finding that the ownership of the land was in the plaintiffs, and that they were entitled to the possession of same, whereupon a judgment was rendered in conformity with this verdict, from which the defendant appeals.
The land consists of 40 acres, described as the southeast quarter of the southwest quarter of section 35, township 20 north range 9 east, Dunklin county. It is admitted that the record title to the land was vested in John and Maggie Gray, husband and wife, January 19, 1901. They were the parents of the plaintiffs. In the fall of 1901 they removed from the land, and both died intestate, the husband before the wife, in February, 1902, while living elsewhere. They were seized of the land as tenants by the entirety. At the time of their removal, there was a house on the land in which they had resided, and about 6 or 8 acres had been cleared for cultivation; the remainder was timber land, uninclosed, and much of it was covered with water, and it was regarded as worthless. This condition continued for a long time after the removal of John and Maggie Gray, exactly how long the record does not disclose. Later, when the system of drainage and reclamation of swamp lands was inaugurated in southeast Missouri, the water was drained or ran off of this land, and it was rendered susceptible, after being cleared, of cultivation. At the time of the trial, about 17 acres had been cleared.
At the time of the deaths of John and Maggie Gray, their children, the plaintiffs, were of tender years; Edgar Gray being about 8 or 9 years of age, Charles Gray, 3 or 4 years of age, and Minnie Daugherty, nee Gray, about 11/2 or 2 years of age. After the death of their parents, they were taken to the home of an aunt residing in the state of Arkansas, where they were reared. Edgar Gray enlisted in the United States army in November 1913, and has twice re-enlisted since his discharge in March, 1919. In June and July, 1916, while in the service, he was in Mexico. His brother, Charles Gray, enlisted in the United States army in April, 1917, and remained in the service until May, 1919. Plaintiffs claim this land as heirs at law of their parents, John and Maggie Gray, in whom it was vested by a title emanating from the United States government.
The defendant claims title to the land by adverse possession, dating from some time in 1901, after the Grays had removed therefrom; that his possession commenced with the rental of the house on the land to one Hawkins. The testimony as to the time of the commencement of Hawkins' possession is indefinite; it being uncertain whether it began before or after the deaths of John and Maggie Gray. Hawkins' testimony was:
'That from Christmas, 1901, until the fall of 1902, he had lived on this place; that he had not seen the place since he moved off of it, but that it was a wild place when he left it; that he did not know that any one had occupied this house after he left it; that he tended other lands of the defendant about three-quarters of a mile away from this place for 5 or 6 years after he left this place, and that, so far as he knew, no one moved on this place after he moved off of it; that, when he went on this land, he did not rent the land, he just got the house to live in to tend land on another place of the defendant; that he only had possession of the house, and there were no fences on the place except a little yard fence; that the land was in the woods when he went on it, and he was not claiming possession of any of the land, just the house; that he did not pay any one rent for the house while he was there; that Mr. Gray said it was all right for him to move in there.'
It was also attempted to be shown that John Gray had made a deed to the defendant of the land. It was claimed by the defendant that he bought the land from John Gray in the fall of 1901; that he had once had a deed from Gray to the land which had never been recorded, and that it may have been destroyed in a fire he had in his store several years before the trial; that he had been in possession of the land continuously since 1901. The only testimony corroborative of the possession of the deed was that of one McElvoy, who stated that he knew the defendant, and was familiar with the land in controversy; that he had worked in the defendant's store in the neighborhood 2 or 3 years previously, but did not recall the years; that he had looked at the defendant's deeds and papers while at the store and had once seen a deed from John and Maggie Gray to W. R. Shelton, the defendant -- that was before the fire at the store. He just saw this deed as it was folded up, but didn't know what year it was or what land it covered, nor did he know anything about its contents.
Another witness, named Starcks, testified that he had cleared up 16 or 17 acres of the land about 5 years before the trial, and had 'got a crop off of part of it and lost a part due to water, mud, and everything else'; that when he took possession there was only about one acre cleared; that he knew nothing of the land since he moved off of it. From whom he obtained possession of the land, or whether he obtained it from any one, the record does not show.
In rebuttal, it was offered to be proven by the plaintiffs, but excluded by the court, that some time after this suit was brought, but before the trial, the defendant came to the witness and asked him if he (defendant) 'didn't get that land from him (the witness) and if he wouldn't make a deed to the defendant to it.' The witness told defendant that, while he once owned the land, defendant had never gotten it from him.
The defenses interposed, as disclosed from the testimony, were that the defendant had obtained possession of the land by a deed from John and Maggie Gray, and that he had acquired title to the land by the 10-year statute of limitations.
I. Error is assigned in the alleged admission of testimony concerning the service of Edgar and Charles Gray in the United States army during the World War as affecting the running of the statute of limitations. It is enough to say that the objection made to the admission of this testimony was not based on its inadmissibility under section 1345, R. S. 1919, extending the time of legal proceedings during military service, which limits the exemption to 'citizens of the state,' but to matters irrelevant to the competency of the testimony offered. So far, therefore, as the right of the defendant to this assignment is concerned, it is precluded by the absence of a specific and relevant objection to the testimony complained of. Aside, however, from the failure of the defendant to preserve the objection for consideration, it appears that the court, on its own motion, excluded the testimony on the ground that the statute was limited to citizens of this state, and that Edgar and Charles Gray were residents, at the time of their enlistment for military service, of the state of Arkansas. Thus excluded from the consideration of the jury, the defendant suffered no injury on this account, and this assignment must go for naught.
II. There was no sufficient and convincing proof of the open continuous, and adverse possession by the defendant of the land under a claim of ownership for any definite length of time during the interval between the removal of the Grays therefrom and the institution of this suit. The defendant's own testimony is demonstrative of the correctness of this conclusion. After testifying generally that he had claimed to own the land ever since 1901, and that no one had ever disputed his title, and...
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