Hunt v. Hunt

• Decision Date: 19 March 1925
• Docket Number: 24062
• Parties: GILES HUNT and W. B. HUNT v. P. L. HUNT, Appellant
• Court: Missouri Supreme Court

270 S.W. 365

307 Mo. 375

GILES HUNT and W. B. HUNT v. P. L. HUNT, Appellant

No. 24062

Supreme Court of Missouri

March 19, 1925

Appeal from St. Francois Circuit Court; Hon. Peter H. Huck Judge.

Affirmed.

Benj. H. Marbury for appellant.

(1) The evidence given at the trial of the case on behalf of plaintiff is not sufficient to warrant the relief given by the court's judgment, and his findings of fact were erroneous. Russ v. Hope, 265 Mo. 644; Stewart v Lead Co., 200 Mo. 281; Charles v. White, 214 Mo. 188; Harrison Machine Works v. Burns, 200 Mo 219; Gratton v. Holliday-Klotz L. Co., 189 Mo. 322; Secs. 1305, 1309, R. S. 1919; 32 Cyc. 1344 et seq; 30 Cyc. 153 et seq.; Mather v. Walsh, 107 Mo. 121. (2 Under all the evidence at the trial defendant was entitled to prevail. Kilpatrick v. Wiley, 197 Mo. 123; Skillman v. Clardy, 256 Mo. 297; Stone v. Ry. Co., 169 S.W. 88; Harvey v. Long, 168 S.W. 708; Ledbetter v. Phillips, 187 S.W. 9; Wimpey v. Lawrence, 208 S.W. 54; Turner v. Hines, 248 S.W. 933; H. & St. J. Railroad Co. v. Clark, 68 Mo. 371. (3) The report, plat and findings of the surveyor were not introduced in evidence and the same were inadmissible, being incompetent and being collateral matter without sworn statement or affidavit as to correctness, and the court erred in considering and taking them into account in his judgment. Lumber Co. v. Ripley Co., 270 Mo. 121; Sec. 1971, R. S. 1919; Powell v. Crow, 204 Mo. 481; 33 Cyc. 1139 et seq., and note 62 on page 1143; Newcomb v. Payne, 250 S.W. 553; Kellerman Contracting Co. v. C. H. W. Co., 137 Mo.App. 392. (4) All the evidence in the case was not sufficient to impeach the integrity of the mutual partition of the land by the parties which should and does conclude the parties to this action. Sutton v. Porter, 119 Mo. 100; Bonapart v. Roderman, 24 Mo. 385, 399; Gulich v. Huntley, 144 Mo. 241, 249; Edwards v. Latimer, 183 Mo. 626; Nave v. Smith, 95 Mo. 595; Troll v. St. Louis, 257 Mo. 626; 30 Cyc. 153 et seq. and 165. (5) Plaintiffs are concluded by the doctrine of estoppel. 21 C. J. 1067, notes 86 to 93; 21 C. J. 1077, notes 83 to 84; 21 C. J. 1088, sec. 68, note 91; Summitt v. City Realty Co., 208 Mo. 501; Steele v. Culver, 158 Mo. 136; 30 Cyc. 164, (G) and 168. (6) Plaintiffs' evidence was insufficient to avoid the force of the ten-year Statute of Limitations, which is a complete defense to plaintiffs' action. Haarstick v. Gabriel, 200 Mo. 237; Stone v. Perkins, 217 Mo. 585; Secs. 1305, 1309, R. S. 1919; Ernsting v. Gleason, 137 Mo. 594; Mangold v. Phillips, 186 S.W. 988; Scannell v. Am. Co., 161 Mo. 606; Franklin v. Cunningham, 187 Mo. 184; Farris v. Coleman, 103 Mo. 352; 32 Cyc. 1344, notes 70 to 74; 25 Cyc. 963 et seq. (7) Plaintiffs' action was and is a collateral attack on the mutual partitioning of the land by the parties carrying out the will of the common source of title, followed by execution and delivery of the deeds between them and by long, exclusive and continuous possession and occupancy of the land by the defendant. 30 Cyc. 153 et seq.; Hayes v. Marsh, 123 Iowa 81, 98 N.W. 604; Gulick v. Huntley, 144 Mo. 241; Sutton v. Porter, 119 Mo. 100; 30 Cyc. 158 (D); Castevens v. Castevens, 227 Ill. 547, 118 Am. St. 291; Phelps v. Harris, 101 U.S. 370, 25 L.Ed. 855; Edwards v. Latimer, 183 Mo. 610; Nave v. Smith, 95 Mo. 596; Jackson v. Hasbrauck, 3 Johns. (N. Y.) 331; 30 Cyc. 158 (D) and 165 (I).

J. B. Burks and B. H. Boyer for respondents.

(1) Appellant complains that the trial court erred in considering, as evidence, the report of Surveyor Holman. Too late; no such point was made in the motion for new trial. The finding of fact by the court, being supported by evidence, is conclusive on appeal. Dowd v. Bond, 199 S.W. 955. (2) Appellant now invokes the doctrine of estoppel. This cannot be, as no such defense was pleaded. Throckmorten v. Pence, 121 Mo. 60; Creek v. Railway, 293 Mo. 541. (3) Whether appellant's refused instructions were good, bad or indifferent, is not necessary here to discuss. The court's findings and judgment sufficiently disclose the theory on which the cause was tried and decided. Armour v. Lewis, 252 Mo. 568. (4) Section 1970, is highly remedial and plaintiffs were entitled thereunder to have their title and interest, in any part of the lands claimed by defendant, determined. Ball v. Woolfolk, 175 Mo. 278; Utter v. Sidman, 170 Mo. 284; Dowd v. Bond, 199 S.W. 954. (5) Plaintiffs' cause of action is not barred by the ten-year Statute of Limitations. Peper v. Trust Co., 219 S.W. 947; Armor v. Frey, 253 Mo. 474; Powell v. Powell, 267 Mo. 117; Klein v. Groeschner, 280 Mo. 599. Moreover defendant was never in the continuous, open, hostile and exclusive possession of the lands adjudged to plaintiffs. On the contrary his acts and conduct, up to one year prior to suit, tended to recognize the rights of plaintiffs in said strip of land as tenants in common. Hynes v. Hynes, 253 Mo. 20; Stone v. Perkins, 217 Mo. 586. (6) Parole partitions are only upheld when the divisions are fair and equal. Sutton v. Porter, 119 Mo. 100.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On July 18, 1919, the above named plaintiffs filed in the Circuit Court of St. Francois County an action at law against above named defendant, to quiet title to 82.26 acres of land, more or less, located in said county and described in the petition.

It is alleged in petition that the real estate aforesaid is in possession of defendant, and that most of it is in cultivation; that defendant claims some title, estate or interest in said premises, the nature and character of which claim is unknown to plaintiffs, and cannot be further described herein, except that same is adverse and prejudicial to the interest of plaintiffs. The petition concludes with a prayer, in which the court is asked to ascertain and determine the title and interest of plaintiffs and defendant herein to the real estate aforesaid, and to determine, define and adjudge by its judgment and decree the title and interests of plaintiffs and defendant respectively in and to the real estate aforesaid.

The answer contained a general denial, and further alleged that the land described in plaintiffs' petition was mutually partitioned on June 26, 1889, among the then co-tenants, W B. Hunt, J. D. Hunt, P. L. Hunt and Giles Hunt, and the land described in petition given to the defendant; that thereafter deeds were executed and delivered in compliance with said mutual agreement. The answer further avers that plaintiffs are barred by Section 1879, Revised Statutes 1909 (Sec. 1305, R. S. 1919); that defendant has been, for more than ten years before the commencement of this action, under a claim of ownership, in the actual, open, hostile, exclusive, adverse, uninterrupted and continuous possession of the lands described in petition. Wherefore he prays to be dismissed with his costs.

The reply is a general denial, etc.

The case was tried by Judge Huck without a jury on December 11, 1919. On May 13, 1920, at the conclusion of the trial, the court, without objection, made and entered of record the following order:

"Now, at this day, it is ordered by the court that the County Surveyor, Thomas Holman, survey the lands in accordance with the contract exhibited in evidence purporting to make a partition of the lands of John G. Hunt among the heirs; and it is further ordered that the County Surveyor make a report to this court, and the costs be taxed in equal parts against the parties of this suit."

On June 5, 1920, the County Surveyor aforesaid filed in the circuit court, without objection, his report, pursuant to above order, which is incorporated in the bill of exceptions and as a part of the court's finding of the facts. On December 8, 1920, counsel for defendant filed a motion, under the provisions of Section 1402, Revised Statutes 1919, requesting the court to render a separate finding as to the law and facts in the case. Counsel for defendant also submitted three declarations of law to the court, numbered 1, 2 and 3. The court refused defendant's instruction one and did not pass on the other two. The court in its finding of facts, without objection, adopted as a part of said findings the report of surveyor Holman. At the conclusion of said finding of facts the following appears: "To which finding of facts and law the defendant, by his counsel, then and there objected and excepted."

No objection was made to the report of the surveyor, nor was any objection made to it being adopted as part of the court's finding of facts.

On said December 10, 1920, the court entered of record the following judgment and decree herein:

"Pursuant to the submission heretofore had in the above cause, the court now proceeds by its decree to ascertain, determine and adjudge the right, title and interest of the parties in and to the following described real estate situate in subdivision of U.S. Survey No. 2969, Townships 35 and 36 north, Range 5 east, County of St. Francois, State of Missouri, to-wit: Lot 55, containing 43.20 acres, less one acre in the southeast corner thereof heretofore disposed of; Lot 54 containing 38.35 acres, and a strip of ground containing 5.61 acres off the east end of Lot 51 of said subdivision.

"That while the record title to the above lands is in defendant the court finds that defendant is not the true and lawful owner of the following part of said land, to-wit: The east part of said Lot 51 aforesaid containing 5.61 acres, described as follows: Beginning at the southeast corner of said Lot 51, running thence north 82 1/2 degrees west 2.69 chains; thence north 7 1/2 degrees east 20.40 chains to north line of said Lot 51; thence south 82 1/2 degrees east 2.69 chains to the northeast corner of Lot 51; thence south 7 1/2...