Higgerson v. Higgerson

• Decision Date: 20 April 1973
• Docket Number: No. 9509,9509
• Citation: Higgerson v. Higgerson, 494 S.W.2d 374 (Mo. App. 1973)
• Parties: Nina Johnson HIGGERSON, Appellant, v. Andrew J. HIGGERSON, Jr., et al., Respondents.
• Court: Missouri Court of Appeals

Page 374

494 S.W.2d 374

Nina Johnson HIGGERSON, Appellant, v. Andrew J. HIGGERSON, Jr., et al., Respondents.

No. 9509.

Missouri Court of Appeals, Springfield District.

April 20, 1973.

Charles C. Hatley, New Madrid, for appellant.

Hal E. Hunter, Jr., New Madrid, for respondents.

BILLINGS, Judge.

In this court-tried case judgment was entered for the defendants on plaintiffs' petition to quiet title by adverse possession to a sixty-acre farm and partition was ordered pursuant to defendants' counterclaim. We affirm.

John Wesley LaPlant, the common source of title, died in 1921 survived by his mother, Mary, and his sister Dora. Dora was the wife of Andrew Jackson Higgerson and among their eleven children was Arthur who was married to Nina (Nina and her ten children were plaintiffs herein but only Nina prosecutes this appeal).

Grandmother Mary was living on the farm with John at the time of his death and at her request Arthur and Nina moved to the farm. Grandmother Mary died in 1923, Dora died in 1934, ¹ Andrew Jackson Higgerson died in 1949 and Arthur died in 1966.

Arthur farmed the tillable twenty-five acres of the farm (the remaining acreage consisting of pasture and woods) until 1961 at which time his son Robert took over the farming operation and payed his father crop rent. Since Arthur's death, Robert has continued to farm and pays his mother crop rent.

There is no dispute as to certain facts: the occupation and farming of the lands from 1921 until 1966 by Arthur; the occupation of the lands from 1966 until time of trial in 1971 by Nina and the farming from 1966 to 1971 by her son Robert; the real estate taxes being paid until 1966 by Arthur (with possibly some contribution by his mother, Dora) and since that time by Nina; the rents and profits from 1921 until 1971 being retained by Arthur or Nina as well as the proceeds from various government farm programs which listed Arthur as 'owner'. During his occupancy Arthur did some fencing, some fence repairing, and re-built the house in 1937 and 1943 following fires. The last house built was a one-room house and Nina now lives in a house-trailer on the premises.

In 1951 Arthur began seeking quitclaim deeds from his brothers and sisters (or their descendants) and continued such efforts until his death. He obtained such deeds from two of his brothers, one sister, the surviving husband of a deceased sister, and one of the two children of the deceased sister. Another brother quitclaimed his interest to Nina after this suit was filed in 1969. Efforts to obtain quitclaim deeds from other of Dora's descendants by Arthur, Nina and Robert were unsuccessful.

Nina, 70 years of age at trial time, testified that when she and her husband moved to the farm in 1921 Grandmother Mary LaPlant was about 85 or 86 years of age and 'pretty feeble'. During all of the time she and her husband were on the farm none of the defendants had ever 'asked you all to share this farm or get off this farm.' However, she stated that prior to her mother-in-law's death in 1935 Arthur was living on and farming the land with his mother's consent; that Arthur recognized his mother's right and interest in the farm and that he did not claim the farm adversely to her; further, that after Dora's death Arthur recognized the interests of his brothers and sisters in the property and 'that is how come him to have these quitclaim deeds he tried to get'--that Arthur had the consent of his brothers and sisters to live on the property during his lifetime.

Nina served as administratrix of her husband's estate and Arthur's interest in the farm was inventoried and ordered distributed to his heirs as an 'undivided interest'.

Andrew Higgerson a brother of Arthur who released his interest to Nina after this suit was filed, testified that '. . . (G)randmother Mary gave this place to my brother to come and live with Grandma as long as she lived.' He said Arthur recognized his (Andrew's) interest in the farm and had inquired of him if he had received the deed Arthur had mailed him for execution. Harold Higgerson, a brother of Arthur, refused to sign a deed at Arthur's request in 1965, having earlier denied such a request. Alice Higgerson Taylor, a sister of Arthur, was requested by Arthur to release her interest to him on two occasions, the last time being in 1965. Mildred Henry, daughter of Arthur's deceased sister Nevada, was contacted by Arthur to deed her interest in the property six months before his death and again the day he died. She refused. After Arthur's death in 1966 Robert unsuccessfully sought to obtain a deed from Velva Gullion, another daughter of Nevada.

In ruling against plaintiffs' claim of title by adverse possession the trial court, inter alia, made the following findings: that the evidence did not establish a gift of the farm by Grandmother Mary, acquiesced in by Dora, to Arthur and Nina for services; that the lack of exclusive ownership and lack of actual color of title in plaintiffs were such that it did not render the facts as to adverse possession apparent; that the parties were tenants in common to the farm and the evidence did not show sufficient adverse possession against the cotenants; that the possession and control of Arthur and Nina was of a permissive nature and they had no color of title as to all the property and the proof of adverse possession was not unequivocal and unmistakable to the extent that it imparted notice to the cotenants.

In this court Nina contends Arthur's adverse possession was under color of title, and in the alternative, without color of title the claimed adverse possession was of such exclusive and unequivocal nature as to defeat and repudiate any rights of the cotenants-defendants. Nina argues that by Arthur going on the farm in 1921 and continuously cultivating, maintaining, improving and paying taxes on the property that this manifested exclusive ownership sufficient to deny the rights of his cotenants. Further, this is not a case of 'permissive adverse possession'.

The scope of our review is governed while we review the case upon both the whle we review the case upon both the law and evidence the judgment is not to be set aside unless clearly erroneous, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Additionally, where there is a direct conflict in the testimony deference is to be given the trial court's conclusions. Nutz v. Shepherd, 490 S.W.2d 366 (Mo.App.1973); Kester v. Jeter, 481 S.W.2d 510 (Mo.App.1972); Dill v. Poindexter Tile Co., 451 S.W.2d 365 (Mo.App.1970). In Dill we said, at page 371: '. . . (I)n court-tried actions we are obliged to accept as true the evidence and all permissible inferences therefrom favorable to the prevailing party and disregard such testimony as is contrary thereto (cases), and not to set aside the judgment unless it is clearly erroneous.'

Plaintiff relies upon Wunderlich v. Baumgarth, 437 S.W.2d 78 (Mo.1969) as support for her theory that color of title existed and thus her burden to establish Arthur's adverse possession against defendants is lightened. This case...