Burgess, C. J., dissenting.
In banc. Appeal from circuit court, Grundy county; P. C. Stepp, Judge.
Action by Homer Hall against James A. French. From a judgment for defendant, plaintiff appeals. Reversed.
The parties have agreed that the following statement made by appellant's counsel is correct, and it is therefore adopted: "This is an action in ejectment for the recovery of the northeast quarter of the northwest quarter of section 14, township 61, range 24, in Grundy county, Missouri. On August 10, 1840, the land in suit, together with other lands, was entered from the government by George Richard. On February 12, 1844, the said George Richard and his wife, by warranty deed, sold and conveyed to Ann P. Henderson, `the said party of the second part, and to her bodily heirs and assigns forever,' the land here sued for, `to have and to hold the said tract or parcel of land, with all the appurtenances thereunto belonging or in any wise pertaining, to the only proper use, benefit, and behoof of the said party of the second part, and to her bodily heirs and assigns forever.' On October 19, 1852, William C. Harvey, as sheriff of Grundy county, Missouri, levied upon and sold all the right, title, interest, and claim, estate and property, of Henry M. Henderson, the husband of Ann P. Henderson, in and to the land here sued for, under an execution issued on a judgment rendered in the circuit court of Grundy county, Missouri, on October 22, 1851, against Henry M. Henderson and Ira Benson. At said sale Robert H. Benson became the purchaser, and received a sheriff's deed dated October 20, 1852. The defendant claims title through successive conveyances from said Benson. Ann P. Henderson and Henry M. Henderson were married about the
year 1838. They were in possession of the land in suit prior to October 20, 1852, the date of the sheriff's deed, and after that time, in 1852 or 1853, they moved to the state of California, and never returned to this state. They continued to live together as husband and wife until the death of Mrs. Henderson. She died intestate on August 16, 1891, in Lake county, Oregon; and her husband, Henry M. Henderson, died intestate, on December 13, 1895, in Mountain View, Santa Clara county, California. There were nine children born of their marriage, six of whom survived their parents, and are plaintiff's grantors in the conveyance under which he claims title to the land in suit. These six are the only children and sole heirs of said Ann P. Henderson and Henry M. Henderson. They are William H. Henderson, aged about 55 years; Viator T. Henderson, aged about 49 years; Melvina J. Gruelle, wife of W. C. Gruelle, aged 46 years; Vincent S. Henderson, aged 43 years; Edward P. Henderson, aged 40 years; and Levin J. Henderson, aged 34 years. On July 8, 1896, V. S. Henderson, in his own behalf and as attorney in fact for the other heirs of Ann P. Henderson, — powers of attorney to him having been executed by them, — executed a quitclaim deed to plaintiff of the lands in suit. The petition in this case was filed July 27, 1896, and summons was served on the same day. The answer was filed October 5, 1896. It was afterwards discovered that the acknowledgment of the deed from the Henderson heirs to plaintiff did not conform strictly to the Missouri form of acknowledgment, and on November 30, 1896, the said V. S. Henderson, for himself and the other heirs, executed and delivered to plaintiff another deed to the same lands. This last deed was the one read in evidence. On January 8, 1897, both the petition and answer were refiled, as the pleadings themselves and the records of the court show, and the case was tried on May 1, 1897. It was agreed between the parties on the trial of the case that, if plaintiff was entitled to recover at all, he was entitled to recover rents and profits at the rate of seventy-five dollars a year from the 1st day of December, 1896; that the defendant was in the possession of the premises at the institution of the suit and the time of the trial; that the plaintiff and those under whom he claims had not been in the actual possession of the land, or paid any taxes thereon, since October 20, 1852; that defendant and those under whom he claims as grantors have been in possession of and claiming title to said land, and have paid the taxes thereon, since October 20, 1852; and that Ann P. Henderson and Henry M. Henderson, her husband, were in possession of said land prior to October 20, 1852." The case was tried by the court without a jury, and the plaintiffs asked, and the court refused to give, the following instructions: "(1) The patent from the United States to George Richard, as shown by the plat book of original entries of Grundy county, Missouri, and the warranty deed from George Richard and wife to Ann P. Henderson, read in evidence, were sufficient in law to vest, and did vest, the title to the land in controversy, in fee, in Ann P. Henderson. (2) If the court, as the trior of the facts, believes and finds from the evidence that said Ann P. Henderson was the wife of Henry M. Henderson, and that there were born alive of the marriage of said Henry M. Henderson and Ann P. Henderson children and issue, then by reason of said marriage and said issue the said Henry M. Henderson became invested with a life estate in said lands, which was subject to seizure and sale under execution for the debts of the said Henry M. Henderson, and the purchaser and those claiming under and through him were entitled to the possession of said land during the life of said Henry M. Henderson, and at his death the said Ann P. Henderson, if living, and, if dead, then the children and heirs at law of the said Ann P. Henderson, and those claiming under and through them, were and are entitled to the possession of said land. (3) If the court believes and finds from the evidence in this case that the said Henry M. Henderson died on the 13th day of December, 1895, and that said Ann P. Henderson died on the 16th day of August, 1891, leaving as her heirs her children born of said marriage with said Henry M. Henderson (V. S. Henderson, E. P. Henderson, V. T. Henderson, W. H. Henderson, L. J. Henderson, and Melvina J. Gruelle) surviving her, and that the children and heirs, in their own behalf in part, and by their duly-authorized attorney in part, as shown by the letters of attorney, executed the deed to plaintiff, read in evidence, then the court must find for plaintiff. (4) Under the pleadings and the evidence in this case, the finding of the court must be for the plaintiff, for the possession of the lands sued for. (5) If the court finds for plaintiff, it will find for him for the possession of the lands described in his petition, and for damages for all waste and injuries thereto, and by way of damages the rents and profits of said land from the 1st day of December, 1896, down to the present time, and will also find for him for the monthly value of the rents and profits of said premises." Defendant asked and the court gave the following instruction: "(1) Under the deed read in evidence from `George Richard and wife to Ann P. Henderson, and to her bodily heirs and assigns,' the said Ann P. took a life estate only in said premises, and this suit not having been instituted for one year, and longer, after the death of the said Ann P., and it being admitted that neither the plaintiff nor those under whom he claims has been in actual possession of the lands in suit, or paid any taxes thereon, for more than thirty years prior to the death of the said Ann P., the
finding must be for defendant." The court entered judgment for the defendant, and the plaintiff appealed.
Hall & Hall, for appellant. Harber & Knight and Samuel Hill, for respondent.
MARSHALL, J. (after stating the facts).
1. The deed from George Richard to Ann P. Henderson, "and to her bodily...
