Hill v. Bailey

• Decision Date: 25 November 1879
• Citation: 8 Mo.App. 85
• Parties: BRITTON A. HILL ET AL., Appellants, v. GEORGE W. BAILEY ET AL., Respondents.
• Court: Missouri Court of Appeals

8 Mo.App. 85

BRITTON A. HILL ET AL., Appellants,

v.GEORGE W. BAILEY ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Nov. 25, 1879.

1. Where the title to real estate is in question, a general denial of the plaintiff's title will suffice for the admission of evidence of adverse possession for the statutory period.

2. While the Statute of Limitations does not run as between a trustee and the cestui que trust, when this relation is no longer recognized, and the beneficiary or co-tenant recognizes and acquiesces in the adverse possession, the statute begins to run.

3. Objections to the introduction of testimony before a referee, raised for the first time upon exceptions to the referee's report, come too late to be available.

APPEAL from the St. Louis Circuit Court.

Affirmed.

BRITTON A. HILL and JOHN F. DARBY, for the appellants: Where the Statute of Limitations is relied upon as a defence, it must be pleaded.-- Tramell v. Adams, 2 Mo. 155; Benoist v. Darby, 12 Mo. 196; Boyce v. Christy, 47 Mo. 70; Wynnes v. Cory, 48 Mo. 346; Stiles v. Smith, 55 Mo. 366. “No lapse of time is a bar to a direct trust, as between trustee and cestui que trust.”-- Bailey v. Barnett, 12 Mo 3; Dillon v. Bates, 39 Mo. 292. Adverse possession must be hostile, and taken under color of title, before the statute runs. Hamilton v. Boggs, 63 Mo. 233; Wilkinson v. Allen, 67 Mo. 502. The mortgagee in possession may be made to account for rents and profits.-- Anthony v. Rogers, 17 Mo. 394; s. c. 20 Mo. 281; Rose v. Pilot Knob, 49 Mo. 124; Johnson v. Houston, 47 Mo. 227. “To bar an equity of redemption, twenty years must have elapsed since the last recognition of the mortgage.”-- McNair v. Scott, 25 Mo. 182; 18 Mo. 522; 34 Mo. 285.

GEORGE W. BAILEY, for the respondents: “The construction put upon the existing statute of limitation as to real actions is, that when ten years have elapsed from the taking effect of the act, the action is barred.”-- Callaway County v. Nolley, 31 Mo. 393; Carondelet v. Simon, 37 Mo. 408; Gilker v. Brown, 47 Mo. 105; Hunter v. Hunter, 50 Mo. 445; Ricord v. Watkins, 56 Mo. 555. The Statute of Limitations need not be pleaded.-- Nelson v. Broadhack, 44 Mo. 596; Fugate v. Pierce 49 Mo. 441; Warfield v. Lindell, 38 Mo. 561. “It is not only a bar, but constitutes an affirmative legal title.”-- Merchants' Bank v. Evans, 51 Mo. 335.

LEWIS, P. J., delivered the opinion of the court.

In 1846, John Scott and wife conveyed the real estate in controversy to Solomon P. Ketchum and Franklin A. Dick, in trust, to secure the payment of certain promissory notes in favor of the defendant, George Bailey. In 1849, Scott and wife conveyed the same property to Britton A. Hill, plaintiff, and George Marshall, in trust, for the use and benefit of the wife during her natural life, with remainder to the children of the grantors. Mrs. Scott died in 1854, leaving children, the plaintiffs Thomas J. Scott, William E. Scott, and Emma, who afterwards married the plaintiff George Wright. In 1862 or 1863, John Scott moved with his children to the city of New York, where he resided until his death, in 1876. The plaintiffs' testimony in this cause tended to show that Scott, when about to leave for New York, delivered the property in controversy to the defendant George Bailey, who was to collect the rents and apply the proceeds, as realized, in payment of the trust debt which was still held by him, and upon which little or nothing had been paid. The trustees, Marshall and Ketchum, have in the meantime departed this life, and the present suit is for the purpose of compelling the defendant George Bailey to account for his receipts and disbursements, of ascertaining whether the trust debt has not long since been discharged, leaving a surplus in defendant Bailey's hands, and of obtaining a divestiture of whatever title is supposed to remain in Bailey or his surviving trustee and causing the same to be vested in the plaintiffs, and for other proper relief. A default was taken against the defendant Dick, and Bailey's answer was a general denial.

The cause was sent to a referee, who reported against the plaintiffs' claim, chiefly on the ground that the defendant had acquired an absolute title by operation of the Statute of Limitations.

The plaintiffs insist that the finding and judgment were erroneous, because the answer did not set up the statute in defence. When the statute is relied on as a bar to the remedy merely, it must be specially pleaded. The rule is ancient, and needs no citation of authorities to sustain it. But where the title to real estate is in question, the operation of the statute is found to have a higher range. It is capable of conferring an absolute title. Hence it has long been held that a general denial of the plaintiff's title will suffice for the admission of evidence of adverse possession for the statutory period; because this will not merely bar the remedy, but may establish a title in the defendant which will conclusively negative any ownership in the plaintiff. In other words, it sustains and verifies the denial of the plaintiff's title. Nelson v. Broadhack, 44 Mo. 596. The rule is not confined to actions of ejectment. The reasoning upon which it is founded sanctions its application to any case wherein the title to land is in dispute. There was, therefore, no error in admitting this defence under the general denial.

The defendant Bailey, in testifying, related sundry conversations and admissions of John Scott during his lifetime. No objection was offered against this testimony at the time of its introduction before the referee. The objections raised upon exceptions to the referee's report came too late to be available. Waldo v. Russell, 5 Mo. 387; Railroad Co. v. Moore, 37 Mo. 338; Powers v. Allen, 14 Mo. 367; Shaler v. Van Wormer, 33 Mo. 386.

A considerable number of witnesses were introduced by the plaintiffs, who testified to frequent conversations with the defendant Bailey, in which he stated that he was holding and managing the property as agent for the owners; that he held a deed of trust on it, and would like to get the money and have the property off his hands; that he was collecting the rents for minor heirs, who needed the money, etc. These admissions appear to have been made at various times after the year 1861, and covering several successive years. The defendant's testimony tended to prove that as...