Hendricks v. Musgrove

• Decision Date: 20 June 1904
• Citation: 81 S.W. 1265,183 Mo. 300
• Parties: HENDRICKS v. MUSGROVE et al., Appellants
• Court: Missouri Supreme Court

81 S.W. 1265

183 Mo. 300

HENDRICKS v. MUSGROVE et al., Appellants

Supreme Court of Missouri, First Division

June 20, 1904

Appeal from Scotland Circuit Court. -- Hon. E. R. McKee, Judge.

Reversed.

Smoot Boyd & Smoot for appellants.

(1) Defendants' instruction in the nature of a demurrer to the evidence should have been given. Peck v Lockridge, 97 Mo. 549; Campbell v. Gas Co., 84 Mo. 374. When defendant Gilbert's deed from plaintiff's mother was put of record it was an assertion of record then and there that he owned the land from thence forward. Gilbert was not a tenant in common with plaintiff at any time. He had purchased the interests of all his cotenants and was holding adversely for twenty years. Huston v Huston, 139 Mo. 235. It is not necessary to prove distinct verbal acts. Dunlap v. Griffith, 146 Mo. 283. The ouster occurred in this case, if a cotenancy existed, as against the mother of plaintiff when the deed was delivered and recorded. Whitaker v. Whitaker, 157 Mo. 353; Peck v. Lockridge, 97 Mo. 549. In this case upon the undisputed evidence the ouster occurred more than ten years before suit was brought by plaintiff. The defendant Gilbert's object in purchasing the interest of his cotenants was to procure their interests, and it destroyed the unity of possession, whether the deeds had that effect or not. Peck v. Lockridge, supra. The taking and recording of the deeds was of themselves an act of ouster. 13 Am. and Eng. Ency. of Law (1 Ed.), 1114; Campbell v. Gas Co., 84 Mo. 374. The uncontradicted testimony shows that Gilbert had open, notorious, adverse possession of the premises in question for nearly twenty years before the bringing of this suit and if he was a tenant in common at any time he had ousted his cotenant. Warfield v. Lindell, 38 Mo. 561. (2) Instruction 9 given for plaintiff was not only misleading but erroneous, and when applied to the facts in this case was not the law. Boyce v. Railroad, 168 Mo. 583; Warfield v. Lindell, supra; Peck v. Lockridge, supra. The improvements shown in this cause, the collection of rents and profits for a long series of years, and the appropriation of it by Gilbert were acts of ouster of themselves. Huston v. Huston, 139 Mo. 236. Upon the evidence in this case a jury might well be warranted in finding from the improvements and collection of rents that an ouster had actually occurred; notwithstanding this instruction says these facts may all be found by the jury and yet such acts of themselves do not constitute an ouster. The rule is universal that the collection of the rents and profits for a long series of years, and the making of valuable and lasting improvements, when done under a claim of right, as is shown in this case, of themselves constitute an act of ouster. Lapeyre v. Paul, 47 Mo. 586; 1 Cyc. 1074; Oglesby v. Hollister, 9 Am. St. Rep. 177.

Mudd & Wagner, J. M. Jayne and Lewis Myers for respondent.

(1) The instructions given on the part of both the appellants and respondent under the evidence, and the position taken by the parties at the trial, fairly present the case, and announce correct principles of law as applied to the facts of the particular case under consideration. The appellate court will not, therefore, reverse the trial court on the account of its failure to give other and further instructions. Warfield v. Lindell, 38 Mo. 561; Shotwell v. Gordon, 121 Mo. 485. (2) The rule is well settled in this State that the adverse possession of a cotenant must be a public one, one totally irreconcilable with the cotenancy of another. Long v. McDow, 87 Mo. 197. (3) The court is bound to submit the question of adverse possession to the jury under proper instructions. It is out of the province of the court to assume such adverse possession. Whitaker v. Whitaker, 157 Mo. 342. (4) The mortgage of the whole premises by a cotenant is not per se an ouster. Wilson v. Collishaw, 13 Pa. St. 276.

OPINION

MARSHALL, J.

This is an action of ejectment for an undivided one-fifth of the north half of the northeast quarter of the southeast quarter and the west half of the northeast quarter, and the northeast quarter of the northeast quarter of section 36, township 65, range 11 west, in Scotland county. The petition is in the usual form, and the ouster is laid as of the first day of July, 1892. The answer admits the possession by the defendants; pleads estoppel and title by limitation. There was a verdict and judgment for the plaintiff, and defendants appealed.

The facts in this case are all undisputed, and are as follows: Ludwell Musgrove owned the land here involved, together with other lands. He died intestate in 1873, leaving his widow, Mary A., and five children, to-wit, Mary F. Hendricks, the mother of the plaintiff, but the plaintiff was not born for some two years thereafter, Julia, Alexine Woods, William E., and the defendant, Gilbert, and possibly John T. Musgrove, who, however, appears, to have died. The widow, Mary A., believing that she was entitled only to dower and homestead rights, instituted on May 9, 1879, a partition suit against the six children. This resulted in a decree in partition whereby, the land in controversy was set apart to the widow as a homestead of the value of $ 1,500.

Thereafter, at the solicitation of the widow, and all parties believing that she had a life estate only in the property, the defendant Gilbert, who then lived in Colorado, purchased from his sister, Mary F. Hendricks, all of her divided and undivided interest in the land in controversy, for the price and sum of eight hundred dollars, by a warranty deed, dated February 23, 1880, and recorded on May 18, 1880. Moved thereto by like inducement, the defendant Gilbert purchased the interest of his sister, Mrs. Alexine Woods, on April 21, 1880, and of his sister Julia, on August 26, 1880. These deeds were also duly recorded. Thereupon having, as they all supposed, acquired the title by inheritance or by purchase to four-fifths of the fee, subject to his mother's life estate of homestead, the defendant Gilbert moved back to Missouri, and went to live upon the premises with his mother. Shortly afterwards, about 1880 or 1881, the plaintiff's mother died, and the plaintiff continued to live in Colorado. In 1883, the widow died and the defendant Gilbert entered into the possession and sole enjoyment of the premises.

On September 6, 1886, he executed a deed of trust to Erwin Dewey, upon his interest in the land, which was recited in the deed to be a four-fifths interest, that is, the interest of Gilbert, of Mary F. Hendricks, plaintiff's mother, of Alexine Woods and of Julia Musgrove, and which was the whole estate except the one-fifth then owned by his brother William E. Musgrove.

On March 10, 1887, he purchased the interest of his brother William E., in the premises, and having, as he supposed, then acquired by inheritance or purchase the absolute fee to the premises, he executed, on December 6, 1887, another deed of trust upon the land to Henry H. Fugate, which purported to cover the whole fee. All of these conveyances and deeds of trust were duly and promptly placed of record in the proper office in the county in which the land lies.

After the defendant Gilbert had thus acquired the whole fee, as he supposed, and after the death of his mother, which terminated her life estate, as they all regarded it, he made many and valuable improvements on the land, and otherwise cleared and improved it at an aggregate expense of some three thousand dollars. He occupied, used, enjoyed and remained in the open, exclusive, notorious and continuous possession of the premises and has continued so to do. He claimed to hold the whole estate against the whole world. His neighbors and the community regarded and treated it as his. No one else claimed any interest in it prior to the institution of this suit. On the fifteenth of June, 1896, he conveyed the land to E. R. Bartlett, and on the twentieth of December, 1898, Bartlett conveyed it to Zora M. Musgrove, the wife of the defendant Gilbert, and he claims that these conveyances were intended to settle the land upon his wife, while the plaintiff claims that about that time he began making inquiries about his interest in the land and that the defendant, Gilbert, made the conveyances for the purpose of thereby furnishing a foundation for a claim of actual ouster of his cotenant, the plaintiff.

At the close of the whole case the defendants demurred to the evidence. The court overruled the demurrer. The court submitted the case to the jury upon instructions which proceeded upon the theory that the widow, Mary A. Musgrove plaintiff's grandmother and Gilbert's mother, owned the fee, and not merely a life estate or homestead right in the land, and that at her death the land descended in fee to her children, and that the plaintiff became seized of an undivided one-fifth thereof in right of his deceased mother; that Gilbert became a tenant in common with the plaintiff, and that Gilbert's possession was for the plaintiff as well as for himself, and that Gilbert could not acquire title by adverse possession against the plaintiff except "by such acts as would amount to an assertion that he owed the whole of said lands, as against the plaintiff's right, and by such overt, public, hostile and notorious acts as would inform the plaintiff that he claimed the title as against him and that he had ousted the plaintiff of his right to the possession of his interests in the said lands;" that the possession of Gilbert, no matter how long continued, would not constitute an ouster of the plaintiff; that the deeds read in evidence can not be considered by the jury for the purpose of determining whether Gilbert acquired the plaintiff's interest in the land, but...