Hunt v. Hunt

• Decision Date: 19 March 1925
• Docket Number: No. 24062.,24062.
• Citation: 270 S.W. 365
• Parties: HUNT et al. v. HUNT.
• Court: Missouri Supreme Court

270 S.W. 365

HUNT et al. v. HUNT.

No. 24062.

Supreme Court of Missouri. Division No. 2.

March 19, 1925.

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

Action by Giles Hunt and another against P. L. Hunt. Judgment for plaintiffs, and defendant appeals. Affirmed.

Benj. H. Marbury, of Farmington, for appellant.

J. B. Burks and B. H. Boyer, both of Farmington, for respondents.

Statement.

RAILEY, C.

On July 18, 1919, the above-named plaintiffs filed in the circuit court aforesaid 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 cotenants, 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 (section 1305, R. S. 1919); that defendant has been, for more than 10 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, R. S. 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 1 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 R. 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 hence north 82½ degrees west 2.69 chains; thence north 7½ degrees east 20.40 chains to north line of said lot 51; thence south 82½degrees east 2.69 chains to the northeast corner of lot 51; thence south 7½ degrees west 20.40 chains to the beginning. Also the west part of said lot 54 in the said subdivision, described as follows: Beginning at the southwest corner of said lot 54 and running south 82 degrees 30 minutes east 20.32 chains; thence north 82 degrees 30 minutes west 4.65 chains to the northwest corner of said lot 54; thence south 7 degrees 30 minutes west 20.32 chains to the beginning, containing 8.73 acres, and containing in all 14.34 acres. That plaintiff Giles Hunt is in fact the true and lawful owner of said 14.34 acres and is entitled to the possession of same free and clear of any right, claim, or title of the said defendant or of coplaintiff, W. B. Hunt, in and to the same. That said defendant is the true and lawful owner of all the remainder of lot 54 lying east of said 8.73-acre tract and all of lot 55 aforesaid except the one-acre tract heretofore disposed of as aforesaid. "Wherefore, it is ordered and decreed by the court that all the right, title, and interest or claim of right or title of defendant in and to the aforesaid lands situate in subdivision of United States survey No. 2969, aforesaid, 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 degrees west 2.69 chains; thence north 7% degrees east 20.40 chains to the north line of said lot 51; thence south 82½ degrees east 6.69 chains to the northeast corner of said lot 51; thence south 7½ degrees west 20.40 chains to the beginning. Also the west part of said lot 54 in said subdivision, described as follows: Beginning at the southwest corner of said lot 54 and running south 82 degrees 30 minutes east 20.32 chains; thence north 82 degrees 30 minutes west 4.65 chains to the northwest corner of said lot 54; thence south 7 degrees 30 minutes west 20.32 chains to the beginning, containing 8.73 acres and containing in all 14.34 acres, all being situate in the county of St. Francois, state of Missouri—be, and the same hereby is, divested out of defendant and full and complete title and right to the possession of said lands is hereby decreed and vested in plaintiff Giles Hunt. "It is further ordered and decreed that plaintiff have and recover his costs herein."

The testimony tends to show that John G. Hunt, the common source of title, died intestate about October 15, 1880, the owner of the lands in controversy, together with other lands in St. Francois county, Mo.; the net acreage of all of said land being about 208.07 acres. At the time of his death, said John G. Hunt left seven heirs, consisting of plaintiffs, the defendant, H. P. Hunt, J. D. Hunt, and S. W. Hunt as sons, and Sarah Bumpass (Stallings), a niece, each of whom inherited a one-seventh interest in said land. In 1884, Sarah Bumpass conveyed her undivided one-seventh interest to plaintiffs, the defendant, J. D. Hunt, and S. W. Hunt, giving to each Of the five an additional one-fifth of one-seventh interest in said land. In 1885, Giles Hunt, P. L. Hunt, J. D. Hunt, and S. W. Hunt bought the one-seventh interest of H. P. Hunt aforesaid, each thereby acquiring a one-fourth of one-seventh interest in said land. On June 26, 1889, W. B. Hunt, J. D. Hunt, S. W. Hunt, P. L. Hunt, and Giles Hunt, the owners of all of said lands, entered into an agreement as follows:

"We, the undersigned heirs to the estate of the late John G. Hunt, agree to make the following division of said property, to wit:

"Wm. B. Hunt is to have one-seventh and one-fifth of a seventh of said estate to"be located adjoining the land he now owns, including the' eastern half or portion of lot No. 52.

"P. L. Hunt is to have one-seventh, one-fifth of a seventh, and one-four of a seventh located as follows: Commencing at the extreme eastern boundary of said estate and running west to a line to be ascertained by the survey that will be necessary to find just what number of acres each party to this agreement is entitled to, including lot No. 55.

"S. W. Hunt is to have one-seventh, one-fifth of a seventh and one-fourth of a seventh located just west of and adjoining P. L. Hunt's portion, lines to be as found by survey mentioned above.

"Giles Hunt to have one-seventh, one-fifth of a seventh and one-fourth of a seventh located west of S. W. Hunt's and including parts of lots Nos. 49, 51 and 52.

"J. D. Hunt is to have one-seventh, one-fifth of a seventh and one-fourth of a seventh west of S. W. Hunt's line and including parts of lots Nos. 49, 51 and 52.

"J. D. Hunt and Giles Hunt by special agreement dividing their portion to their own satisfaction provided each shall have an equal share of timbered land.

"And further provided that should there at any time prior to the final survey and settlement in accordance with this agreement by any discovery of lead or other minerals on any of said lands that each and all shall have an interest...