Holmes v. Kring

• Decision Date: 19 December 1887
• Citation: 6 S.W. 347,93 Mo. 452
• Parties: Holmes et al., Plaintiffs in Error, v. Kring et al
• Court: Missouri Supreme Court

6 S.W. 347

93 Mo. 452

Holmes et al., Plaintiffs in Error, v. Kring et al

Supreme Court of Missouri

December 19, 1887

Error to Cass Circuit Court. -- Hon. N. M. Givan, Judge.

Reversed and remanded.

Gage Ladd & Small for plaintiffs in error.

(1) The premises sued for constituted the homestead of James See, and his widow was entitled, after his death, and until her dower was assigned, to the possession of them, as against James See's heirs and every one else. Consequently, the statute of limitations did not begin to run until her death, which occurred in 1876. Prior to that time the heirs had no right of action. 1 R. S., 1855, p. 672, sec. 21; Stokes v McAllister, 2 Mo. 163; Orrick v. Pratt, 34 Mo 226; Miller v. Talley, 48 Mo. 503; Jones v. Manly, 58 Mo. 564; State v. Moore, 61 Mo. 280; Roberts v. Nelson, 86 Mo. 25; Brown v. Moore, 74 Mo. 633. (2) The fact that James See was not actually in the house at the time of his death can make no difference, under the circumstances of this case. It was at the time of his death, no less his homestead and mansion-house, because he was not, under General Ewing's order number eleven, permitted at that time to enjoy the actual occupation of it. Hamilton v. Boggess, 63 Mo. 233. (3) Of this order and condition of affairs in that part of the state, at that time, this court will take judicial notice as a part of the public history of the state. Williams v. State, 67 Ga. 260; Monroe County Commissioners v. May, 67 Ind. 265; Killebrew v. Murphy, 3 Heisk. 550; New Orleans Canal Co. v. Templeton, 20 La. Ann. 141; People v. Snyder, 41 N.Y. 398; 1 Greenl. on Evid. [11 Ed.] sec. 6.

A. Comingo for defendants in error.

(1) If the possession of Eleanor See was adverse, open, notorious, etc., and had been for a period of ten years and more, prior to her death, it invested her with the legal title to the land. The fact that she was the widow of James See, and as such might have claimed a dower interest, did not deprive her of the right to enter and claim adversely. Tyler on Eject. 876-878; Free-man on Cotenancy [2 Ed.] secs. 108, 221-223; Culver v. Rhodes, 87 N.Y. 348; Campbell v. Laclede Gas Co., 84 Mo. 352; Warfield v. Lindell, 38 Mo. 561; S. C., 30 Mo. 272; Lapeyre v. Paul, 47 Mo. 586; Alexander v. Kennedy, 19 Tex. 488. (2) The declarations of Eleanor See, while in possession, were competent evidence. Considered in connection with her acts, disclosed by the evidence, they tended to explain the character of her possession. Martin v. Bonesack, 61 Mo. 556; Burgert v. Borchert, 59 Mo. 80; Sutton v. Casselleggi, 77 Mo. 397; Wilson v. Albert, 89 Mo. 537. (3) The vice of plaintiffs' theory consists in the assumption that Eleanor See could not claim adversely to the remaindermen, inasmuch as she was the widow of James, through whom plaintiffs claim to derive title; and that she was consequently compelled to avail herself of her quarantine, and to claim it until dower should be assigned. This is not the law, as applicable to this case; and she could not have claimed and enjoyed quarantine, in this property, if she had desired. R. S., 1879, sec. 2205; McClurg v. Turner, 74 Mo. 45; also, authorities, supra.

OPINION

Norton, C. J.

This is an action of ejectment to recover possession of certain lands in Cass county by John See, who subsequently conveyed his interest to one Robert I. Holmes, in whose name the suit was there-after prosecuted until it reached this court on a writ of error. The answer is a general denial. The suit was commenced against the present defendant and her sister, Louisa E. George, intermarried with one Alfred George. The last two having died after the case reached this court, the cause was dismissed as to them, and said Holmes having also died testate, and having, by the terms of his will, devised whatever interest he had in the lands in controversy in this cause to the above-named plaintiffs in error, James T. Holmes et al., it was, by an order of this court, at its last term, revived in their names.

The land in question was owned by James See, and John See claims it as an heir of said James, and plaintiffs claim through said John. Defendants base their claims on continuous adverse possession by Eleanor See, the widow of said James, and by themselves, for more than ten years before suit was brought.

The evidence showed that the land in controversy was situate in Cass county, about three miles from Pleasant Hill; that it was owned by James See at the time of his death, which occurred at Pleasant Hill, at that time a military post; that said James died in the winter of 1863-64, without children, but leaving his widow, Eleanor, surviving him; that the original plaintiff, John See, was one of his heirs, being the son of a deceased brother; that, in 1865, said Eleanor, the widow of said James, moved back (in the language of the witness) to his farm, their home, where she lived up to the time of her death. The witness further stated that "the fences had been burned during the war, and that she reenclosed the farm; she made all the improvements on the farm but the house, which had not been burned; she reenclosed a part of the farm in 1865 and in 1866, about thirty acres in all; she made some trifling improvements on the house, and built a barn and stables after her husband's death. Almost every year she added to the farm. The rails were made from timber on the place, and in 1868 she had it all enclosed. She sold timber off the farm, paid the taxes, and received the profits. I don't know that she claimed the land before her husband's death."

At this stage of the case, defendants offered to prove that said Eleanor, the widow, openly and notoriously claimed the land as her own from the time she took possession, after her husband's death, until her death, which occurred in October, 1876. This evidence was objected to on the ground that the defendants had not pleaded the statute of limitations; that the widow, Eleanor, while dowress for life, could not, by her declarations, elevate her estate into a fee, and that such declarations, claiming the land as her own, were not admissible to show adverse possession, unless they were made known to the heirs of said James See. The objection was overruled and the evidence received, and this action of the court is the first ground of error assigned. The objection that the evidence was not admissible, because the statute of limitations had not been set up in the answer, is not well taken, it having been held in the case of Nelson v. Brodhack, 44 Mo. 596, that, in an ejectment suit, the defendant could rely on the statute of limitations without pleading it.

In support of the other ground of objection, it is insisted that James See lived upon the land in question till he went to Pleasant Hill, four or five months before his death; that he was compelled, by Gen. Ewing's military order, No. 11, to remove from his home, and that, notwithstanding such enforced removal, the house still continued to be his mansion-house to the possession and enjoyment of which, and the messuages, or land, attached, his widow, in virtue of her quarantine right, was entitled until dower was assigned her; that she thereby became a tenant in common with the heirs of James See, and that her possession was presumptively friendly, and not adverse, and that it could not become adverse by oral declarations made by her, that she claimed the property to belong to her absolutely, unless made to her cotenant, or unless it...