Houghton v. Pierce

• Decision Date: 14 May 1907
• Citation: 102 S.W. 553,203 Mo. 723
• Parties: HOUGHTON et al. v. PIERCE et al.
• Court: Missouri Supreme Court

102 S.W. 553

203 Mo. 723

HOUGHTON et al. v. PIERCE et al.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. EJECTMENT—PARTIES DEFENDANT—TENANT IN POSSESSION.

In ejectment, where the evidence showed that one L. was in possession of the land at the time of the commencement of the suit and he was not made a party to the action, the court properly adjudged that plaintiffs could not recover possession in ejectment, though they were shown to be the owners thereof in equity.

2. TRUSTS—ADVERSE POSSESSION BY TRUSTEE —HOSTILE CHARACTER—NECESSITY.

Where P. took possession of land under a deed conveying it to him in trust for C., and there was no evidence that he ever made any claim or title to the land in suit adverse to C. or her heirs up to the time of his death, his possession was not adverse to C. or her heirs.

3. SAME—SUFFICIENCY OF TITLE OR CLAIM— TRUST DEED.

Where the husband of defendant held land under a deed of trust for the benefit of C., and there is no evidence, save possession, that she is the owner of a note or trust deed to the land under which she claims to have taken possession, or when or how she came into possession of them, and there is no evidence tending to show that she claimed possession of the property adversely to her husband, her possession cannot be considered adverse to her husband or to C. or to C.'s heirs.

4. SAME—MANAGEMENT OF TRUST PROPERTY —SATISFACTION OF PRIOR LIEN—PRESUMPTION.

Where defendant's husband held land in trust for C., it was his duty to protect C's estate and pay off a prior lien out of the rents and profits of the estate, and where a note and deed of trust constituting a prior lien on the land were in the possession of defendant, in the absence of any showing of when or how she obtained them, the presumption is that her husband, out of the rents from the land which it was shown went to him and his family, had satisfied the note and trust deed.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by William Houghton and others against Frances Pierce and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Harry H. Haeussler, for appellants. D. C. Taylor, for respondents.

GANTT, J.

In September, 1903, the plaintiffs brought their action in ejectment in the circuit court of St. Louis county for a tract of land situated in said county, described as a tract of land containing 20 10/100 acres, in United States survey No. 3116, township 44 N., range 5 E., it being lot No. 32 of a subdivision of said survey, made April 30, 1845, a plat of which subdivision is of record in Plat Book No. 1, volume 2, p. 61, in the office of the recorder of deeds for the city of St. Louis, Mo. Ouster was laid as on the _____ day of _____, 1898. Judgment was prayed for possession of said premises with damages to the amount of $500 and $25 for the monthly rents and profits. The answer of the defendants, Lucy, Cora, and Della Pierce and Frances and Allen Pomroy, was a general denial. The answer of Frances Pierce was first a general denial and secondly a plea of the 10-year statute of limitations, and then, by the way of further defense, she pleaded that she was the owner of the said real estate, and that the plaintiffs have now come and by their petition claim some title or estate in said real estate as above described, and she prayed the court to ascertain, determine, and adjudge her title and interest in and to said real estate, and that her title be quieted. For reply the plaintiffs deny all the new matter therein pleaded. The cause was tried to the court without a jury. On the part of the plaintiffs the evidence was as follows: First, it was admitted that the common source of title is a deed from Felix G. Dunnavant and wife to Levi W. Cline dated July 26, 1864, and recorded in Book 310, p. 272, of the recorder of deeds of the city of St. Louis, and it is further admitted that a John Pierce was the husband of Fannie Pierce, and that he died January 21, 1899. Plaintiff then introduced and read in evidence a certified copy of a deed from Levi W Cline to John Pierce, trustee for Jane Elizabeth Cline, dated the 23d day of December, 1865, recorded in Book 310, p. 274, of the recorder's office of the city of St. Louis, conveying the following described property situated in Carondelet township, St. Louis county, to wit: Lot No. 32 of the subdivision of United States survey No. 3116, on the Merrimack river, near the Fenton bridge, beginning at a point the common corner of lots 17, 18, 19, and 20; thence S., 28° E., with line between lot 17 and 20, 15.08 chains, to corner of lots 16, 17, 20, and 21, thence S., 52° W., with north line of lots 20, 29, and 32, 40.34 chains, to Merrimack river; thence up said river to S. W. corner fractional lot 30; thence N., 52° E., 21.97 chains, to the beginning, containing 20.10 acres more or less. And a certain lot of personal property consisting of horses, cows, hogs, chickens, and household and kitchen furniture on the said premises. "The above described real estate is hereby conveyed subject to a deed of trust of even date herewith given by said first party to Voullaire and Jordan to secure the payment of a note therein described. To have and to hold the same with all the rights, immunities, privileges and appurtenances thereunto belonging unto the said party of the second part and his heirs and assigns forever. This deed is made to said second party in trust for the sole use and benefit of said Jane Elizabeth Cline, wife of said first party, to be by her held, used and enjoyed together with the rents and profits thereof separate and apart from her husband with full power to sell and convey the same or in any wise dispose of the same as she shall request and direct in writing."

William Houghton, one of the plaintiffs, testified that he was 46 years old, and was the son of Jane E. Cline, who had married Levi W. Cline after the death of his (Houghton's) father; that he never had seen Cline and knew nothing of his death; that later his mother married one James Abner, in Edwardsville, Ill., and by this Abner had two children, Jennie, who died when 9 months old, and Sallie, about whom he testified as follows: "Q. What became of Sallie? A. Henry Sutter took her to raise and moved to Mt. Pleasant, Tex., and I lost track of her. Q. That is Sallie Abner? A. Yes, sir. Q. What is her name now? A. Sallie Reese. Q. When did you last see her? A. In 1897, nine years ago, and I saw her last month again on the 30th of October. She was here in Clayton then. She and her husband. Q. You recognized her when you saw her? A. Yes, sir. Q. You recognized her and knew her to be a child of your mother? A. Yes, sir; she has her resemblance. My mother died in 1872 in Edwardsville, Ill. She was a half-sister of Mrs. Fannie Pierce, whose husband was John Pierce, the same man to whom this property was transferred in trust for my mother. John Pierce took possession of the said property belonging to my mother. I did not know of any writing in regard to it. I did not return to the place here until in June, during all of which time I lived in Illinois, and had not seen my sister Sallie since she left Edwardsville, when a little child, until she came to Clayton. At the time John Pierce took possession he was in the fire department in St. Louis, and lived on Barrett street. He was not a farmer." On cross-examination he stated that John Pierce took possession of the land after we left in 1866, when plaintiff was nine years old. "We left the place and went to Venice, Ill., mother and I, and lived there all the time until mother died in Edwardsville. Mother married Abner while I was working for Mr. Mackey, and she sent my stepfather to get me. I was living with her when the stepchildren were born, and when the one died. I do not know how the property was transferred to Pierce, nor how he took possession. Do not think that he went to live on the place. Since we moved from the land I did not go to see it or make any inquiries about it until this year. I visited the Pierces once, and was ordered away and never visited them again." He stated that the first time he had seen the property since was in June of the year of the trial. Asked what induced him to come back, he answered: "I went to see— They always claimed that I owed $600. They never would give me possession until I raised it, and I couldn't do that, and I came out here to see if there was anything coming to me; if not, I was satisfied." Fannie Pierce told him that he owed them $600 when he was a boy 15 years old; that was when he went to see them and she told him not to darken her door any more. He saw Mr. Pierce, but the latter never talked to him on the subject. "John Pierce took possession of what we left, the land and the personal property. He came out there and took the stock. I saw him riding the horses in." One of the horses belonged to plaintiff's mother. William Stafford testified that he had lived in the county except for an interval of two years since 1865. He knew Levi W. and Jane Elizabeth Cline, who lived on the land in dispute. He knew John Pierce, who was a brother-in-law of Jane Cline, and had seen him on the place. He saw the plaintiff several times and recognized him as the boy who claimed to be the son of Mrs. Cline. He further testified he knew old man Cline, because about 1864 witness prosecuted him for horse stealing, and he was convicted and sent to the penitentiary. After this in 1865, witness went west and lost track of the Clines; they were gone when he got back two years later. He had promised to look up this property for plaintiff Houghton, and he promised to pay him something. Witness went security for costs for him in this case. Witness did not know Sallie Reese, nor anything about the transfer from Cline to Pierce. There had been several tenants on the property Witness' brother-in-law rented it at the time witness came back from the west. Witness' mother died in...