Hauser v. Murray

• Decision Date: 24 March 1914
• Citation: 165 S.W. 376,256 Mo. 58
• Parties: ADA HAUSER et al., Appellants, v. MARY L. MURRAY et al., Appellants
• Court: Missouri Supreme Court

165 S.W. 376

256 Mo. 58

ADA HAUSER et al., Appellants, v. MARY L. MURRAY et al., Appellants

Supreme Court of Missouri, Second Division

March 24, 1914

Appeal from Ray Circuit Court. -- Hon. Francis H. Trimble, Judge.

Reversed and remanded (with directions).

C. T Garner & Son and James L. Farris for plaintiff-appellants.

(1) The object of Sec. 650, R. S. 1899, now Sec. 2535, R. S. 1909, is not to determine title as against the whole world, as in proceedings in rem, but is to determine issues between adversary parties and their respective titles. Dixon v Hunter, 204 Mo. 390. It was consequently unnecessary therefore, to have Mrs. Moore made a party to this suit. Besides, no such objection was made in the trial below. She has never asserted in any court claim to this property. (2) A jury was properly denied in view of the equitable defenses pleaded in defendant's answer. Pleading the thirty-year Statute of Limitation in this answer, and asking judgment as to the effect of the deed made by John H. Smith and wife to Quesenberry in 1870, presents also, and in addition to the other equitable defenses, a peculiar province for a court of equity. Crocker v. Cutting, 53 N.E. 158; Stone v. Perkins, 217 Mo. 601; Lumber Co. v. Jones, 220 Mo. 197; Shields v. Johnson, 79 P. 391; McLeod v. Lloyd, 71 P. 795; R. S. 1909, sec. 2535. (3) It was unnecessary for defendant in its answer to ask for equitable relief, since it would not have been granted, except in results. In proceedings of this character, under Sec. 650, R. S. 1899, the court had no power to do more than to ascertain and determine the title and interest of the parties to the suit. Powell v. Crow, 204 Mo. 481. (4) Tenant in remainder cannot bring suit for possession, until death of life tenant. So the Statute of Limitations cannot and does not begin to run until after the death of life tenant. Hall v. French, 165 Mo. 430; Reed v. Lowe, 163 Mo. 535; Milton v. Fitch, 125 Mo. 290; Keith v. Keith, 80 Mo. 125; Bradley v. Railroad, 91 Mo. 498. (5) The sheriff's deed made March 10, 1868, was valid and conveyed the title, estate and interest of John Gunnell to John H. Smith. The statute relied upon by appellant, statute of 1865, did not go into effect until August 1, 1866. The statute of 1855 did not require, in attachment suits, that a notice lis pendens, should be filed in the recorder's office. This deed had been recorded more than ten years before the institution of this suit, and was therefore, admissible in evidence without further proof. It is regular upon its face and valid. Secs. 2231, 2232, 2233, R. S. 1909; R. S. 1899, sec. 3123; R. S. 1909, sec. 6318; Hode v. Hubb, 94 Mo. 497; Howard v. Johnson, 93 Mo. 208; Wells v. Pressey, 105 Mo. 181. Even if valid or defective, limitation started to run while John H. Smith claimed to be the owner, and while he and his wife occupied the premises, jointly, and this adverse possession was continued through the trustee until the death of Elizabeth B. Smith, thus completely barring, as against all the world, and in favor of the grantees in said deed, all right or claim to such interest. G. S. 1865; R. S. 1855, sec. 22, p. 244; Stanton v. Bashert, 104 Mo. 398. (6) The deed dated March 5, 1870, made by John H. Smith and Elizabeth B. Smith, his wife, to David H. Quesenberry, trustee, conveyed all the interest they both had in fee in said lands to David H. Quesenberry, and subject to the provisions of said deed. Perkins v. Carter, 20 Mo. 465; Chauvin v. Lowne, 23 Mo. 223; Miller v. Powell, 53 Mo. 252; Burnett v. McCulley, 78 Mo. 688; Long v. Timmons, 107 Mo. 519. (7) The trustee in the deed made by John H. Smith and wife being vested with legal title, and the guardian of Robert S. Gunnell, insane, and Mrs. Elizabeth B. Smith, life tenant, evidently had the right, ex parte to apply for partition, and division of the lands. This did not affect the interest of Harvey Smith or any of the parties to the suit. It merely divided and set off to Robert S. Gunnell, his interest. The parties were none the loser by this action, and they could have agreed on a division of the lands, perhaps, without bringing suit. This judgment shows further that Elizabeth B. Smith recognized the attitude of the trustee and his authority to join her in the action. The question of estoppel does not arise, and therefore, it is unnecessary to discuss it. (8) The adverse possession started by the purchase by John H. Smith of the interest of John C. Gunnell, and all his rights and equities therein passed to the trustee, and could only inure to the benefit of the parties therein named as grantees. The trustee was as much for respondent as for the children of Elizabeth B. Smith, and even if he had desired to have continued the limitation in favor of these parties to the exclusion of plaintiffs it would have been impossible to have so done. The trustee must act in good faith to all the parties in interest, and alike for each. The visible possession of the trustee is found in the enjoyment of the life tenant, and it is to the trustee to look to the title and to see that it is not lost or diminished by any neglect of his. (9) While the testimony of oral declarations of deceased persons are admissible in certain instances, yet the grantor cannot, by subsequent oral declarations impeach his action. It was error to admit the testimony of witnesses as to declarations made by John H. Smith after delivering his deed to Quesenberry. With this rule invoked, there is not the slightest evidence that any of the horses belonging to the estate of Nathaniel Gunnell were traded to William H. Gunnell; they may have at one time belonged to the estate, but afterwards bought by Mr. Smith, and then in part turned over to William H. Gunnell. If John H. Smith purchased horses from the estate at the administrator's sale, and afterwards traded these horses for the interest in question, equity would not sleuth, from this state of facts alone. Equity could only follow the property in which the estate had never in fact parted with its title.

Lavelock & Kirkpatrick for defendant-appellants.

(1) Under the second count of the petition, there was an absence of necessary parties to a complete determination of the issues raised. Plaintiffs were not entitled to the relief demanded, when some of the persons in interest, as shown by the evidence, were not before the court. Sec. 1733, R. S 1909; 30 Cyc. 113, sub. 2, note 17; 15 Ency. Pl. & Pr. 611-2; Estes v. Nell, 108 Mo. 177; Hiles v. Rule, 121 Mo. 256; Johnson v. Johnson, 170 Mo. 57; Graton v. Land and Lumber Co., 189 Mo. 332; Stewart v. Land Co., 20 Mo. 289; Shields v. Barrow, 15 U.S. (L. Ed.) 160; Barney v. Baltimore City, 6 Wall. (U.S.) 285. (2) The suit, under the second count of the petition, being an action at law, was triable by a jury, and a jury should have been granted, if requested by either plaintiffs or defendants. The defendants having demanded a jury, the court committed error in its refusal of defendants' request. Secs. 1968, 2535, R. S. 1909; Cox v. Moss, 53 Mo. 432; Briggs v. Railroad, 111 Mo. 168; Benoist v. Thomas, 121 Mo. 660; Withers v. Railroad, 226 Mo. 373; Frowein v. Poage, 231 Mo. 92; Kansas City v. Smith, 238 Mo. 334; Gillespie v. Gouly, 120 Cal. 515; Tabor v. Cook, 15 Mich. 322. (3) Pleading equitable defenses in the answer, in the absence of a prayer for affirmative relief, did not convert the action at law into a suit in equity, neither did it deprive defendants of the right to a jury trial. The trial court refused the defendants' request for a jury. This was error. 24 Cyc. 125, sub. 3, (b), notes 72-4; Sebree v. Patterson, 92 Mo. 458; Trust Co. v. Nathan, 175 Mo. 42; Seiberling v. Tipton, 113 Mo. 381; Wendover v. Baker, 121 Mo. 273; Laswell v. Handle Co., 147 Mo.App. 541; Shaffer v. Detie, 191 Mo. 392; Bouton v. Pippin, 192 Mo. 469; Cobe v. Lovan, 193 Mo. 252; Pitts v. Pitts, 201 Mo. 358; Bigham v. Tinsley, 149 Mo.App. 477; Withers v. Railroad, 226 Mo. 396; Kansas City v. Smith, 238 Mo. 334. (4) The action of plaintiffs, under the second count of the petition, was barred by the Statute of Limitation before the suit was commenced, whether a new cause of action was created by this statute, or merely a legal remedy was provided in lieu of an existing ground for equitable relief. Sec. 1888, R. S. 1909; Hoesler v. Sammelman, 101 Mo. 623; Haarstick v. Gabriel, 200 Mo. 244; Stark v. Zehnder, 204 Mo. 451. (5) If the deed from William H. Gunnell to John H. Smith, of date Oct. 17, 1876, conveyed any interest, Mrs. Smith and her bodily heirs were, by reason of being the owners of the property exchanged for this interest, the equitable owners of whatever interest or estate was conveyed by such deed, and Mary L. Murray was not divested of her estate therein by the voluntary deed of John H. Smith, of date March 5, 1870. Plaintiffs were not purchasers for value, and Mary L. Murray was not precluded from asserting title by virtue of this deed. 15 Am. & Eng. Ency. Law (2 Ed.), pp. 936-7; 23, Ib., p. 487; 28 Ib., pp. 1108, 1113; 21 Cyc. 1182-3, sub. (B), note 90; 1382-3, sub. V, f. note; Rogers on Dom. Rel., sec. 155, p. 115; 1 Bishop on Married Women, sec. 119; Tennison v. Tennison, 46 Mo. 82; Young v. Scofield, 132 Mo. 660; Boyton v. Miller, 144 Mo. 687; Reed v. Nicholson, 189 Mo. 407. (6) The sheriff's deed, dated March 10, 1868 to John H. Smith, under judgment rendered September 6, 1867, was void and no title was thereby conveyed. The order of publication did not state that defendant's property had been attached. Sec. 23, R. S. 1855, p. 246; Durossett v. Hale, 38 Mo. 348. No abstract of the attachment levied was filed in the recorder's office of Ray county as required by law. Sec. 20, chap. 141, G. S. 1865; Stanton v. Boschert, 104 Mo. 399; Bryant v. Duffey, 128 Mo. 20...