Hunter v. Hunter

• Decision Date: 12 February 1951
• Docket Number: No. 41598,No. 1,41598,1
• Citation: 237 S.W.2d 100,361 Mo. 799,24 A.L.R.2d 611
• Parties: , 24 A.L.R.2d 611 HUNTER v. HUNTER
• Court: Missouri Supreme Court

Page 100

237 S.W.2d 100

361 Mo. 799, 24 A.L.R.2d 611

HUNTER v. HUNTER.

No. 41598.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1951.

Rehearing Denied March 12, 1951.

Barksdale, Abbott & Thies, Clarence M. Barksdale and Victor A. Wallace, all of St. Louis, for appellant.

Joseph M. Walsh, J. E. Patton, St. Louis, for respondent Earl Hunter.

LOZIER, Commissioner.

This appeal is here because construction of the state constitution and title to real estate are both involved. The nature of the judgment appealed from and the issues can be better stated if the facts are first reviewed. These facts were either stipulated or were uncontroverted.

Appellant Harry Hunter, Jr. and respondent Earl Hunter are the sons and only children of Harry Hunter, Sr. and Nellie Hunter. Respondent never married and has no children. In 1919, respondent was convicted of first degree murder and sentenced to life imprisonment in the penitentiary. He was confined there until June 27, 1946. On that date, the Governor commuted the life sentence to a 'term ending' that day 'without the benefit of the three-fourths law.' The commutation was conditioned upon respondent's compliance with certain conditions until April 21, 1951, 'failing in any of which, or upon the order of the Governor at any time, he may be arrested and returned to the penitentiary, without a hearing, there to serve out the remainder of his sentence.'

Harry Hunter, Sr. died intestate in 1930 and appellant was appointed administrator of the father's estate. It consisted solely of personal property. A residence had been owned by him and his wife by the entirety. On the application form appellant listed the widow, Nellie Hunter, and the two sons as the 'heirs now in being.' The estate was subsequently ordered distributed, $1457.33 to each of the three.

Appellant, upon his own application, Nellie Hunter having renounced the right, was appointed administrator of the estate of 'Earl Hunter, deceased.' The application form recited that Earl Hunter had 'entered the Missouri State Penitentiary for the rest of his natural life.' The file wrapper showed the estate as that of 'Earl Hunter, civilly dead.' The inventory showed the $1457.33 as being the only property of said 'deceased.' As administrator of the estate of 'Earl Hunter, deceased,' appellant filed in the father's estate a receipt for respondent's distributive share of the father's estate. Thereafter, the amount available for distribution ($1294.86) in respondent's estate was distributed to the mother and appellant, one half ($647.43) to each.

Nellie Hunter died intestate in 1937 and appellant was appointed administrator of her estate. On the application form he listed himself as her only 'heir now in being.' The inventory showed $6276.90 in personal property and $1080 in real estate, the residence property. In the settlement of the mother's estate, $5501.72 was paid to appellant as 'sole heir.' He also received personal property worth $225 which was not included in the inventory in the mother's estate. Two weeks after the mother's death, appellant moved to the residence property and with his family has since lived there. He paid the taxes and the insurance costs and made improvements and repairs.

On January 6, 1948, respondent filed this action in equity. The first count was for an accounting for his distributive share of the father's estate and for one-half interest of the mother's estate and of her other personal property not inventoried. The second count was for partition of the residence property. At the close of all the evidence, the trial court overruled appellant's motion to dismiss respondent's petition; required appellant to account and found for respondent for $4158.70 on the first count; and held that respondent was the owner of an undivided one-half interest in the residence and ordered a partition sale thereof.

Appellant challenges the correctness of these rulings of the trial court: that the 'civil death' statute, Sec. 9225, Mo.R.S.1939 and Mo.R.S.A., now Sec. 222.010, Mo.R.S.1949, and the statute providing for administration of the estate of a life convict, Sec. 9228, Mo.R.S.1939 and Mo.R.S.A., repealed, Laws 1945, p. 1333, violated certain constitutional provisions, Art. II, Sec. 13, 1875 Const.; Art. I, Sec. 30, 1945 Const., and conflicted with other statutory provisions, Sec. 4858, Mo.R.S.1939 and Mo.R.S.A. now Sec. 556.300, Mo.R.S.1949; that appellant became a constructive trustee and was liable to respondent for respondent's share of the father's estate and for one-half of the mother's estate; that respondent inherited an undivided one-half interest in the residence property; that the probate proceedings could be collaterally attacked; that respondent was entitled to bring the action; and that the cause of action was not barred by statutes of limitations.

We have considered all of these matters and find that it is necessary to rule but one. As it appears that respondent's claims were barred by the statutes of limitations pleaded by appellant, we will assume, but not decide, that the trial court correctly ruled all of the other issues.

Respondent's suit was filed January 6, 1948. This was over 16 years after the final settlement in his father's estate, over 15 years after the final settlement in respondent's estate and over 9 years after the final settlement in his mother's estate. All such estates involved personalty only. Any cause of action which respondent may have had resulting from these proceedings, respectively, accrued over 5 years prior to January 6, 1948, and was barred by the provisions of Sec. 1014, Mo.R.S.1939 and Mo.R.S.A., now Sec. 516.120, Mo.R.S.1949.

Respondent's action was filed over 10 years after his mother's death, which occurred on September 10, 1937. Assuming but not deciding that he inherited from her an undivided one-half interest in the residence property, respondent's cause of action therefor accrued more than 10 years prior to January 6, 1948, and he did not assert his claim within the period prescribed by Sec. 1002, Mo.R.S.1939 and Mo.R.S.A., now Sec. 516.010, Mo.R.S.1949.

Assuming that appellant and respondent owned the residence as tenants in common, the general rule is that such a tenant or such an heir presumptively holds possession for his cotenants or coheirs. See Mann v. Mann, 353 Mo. 619, 183 S.W.2d 557; and Humphreys v. Welling, 341 Mo. 1198, 111 S.W.2d 123. But under certain circumstances such a tenant in possession may hold adversely to his cotenants or coheirs and, after such adverse possession for the statutory period, may invoke the statute to defeat the claims of his cotenants or coheirs. Hart v. Eldred, 264 Mo. 148, 174 S.W. 380; and Nickey v. Leader, 235 Mo. 30, 138 S.W. 18.

Appellant's possession of the residence was actual, visible, exclusive, hostile and continuous for more than 10 years after the mother's death. See Eaton v. Curtis, 319 Mo. 660, 4 S.W.2d 819. His actions were 'totally irreconcilable with a recognition of the rights of his cotenant,' and it is not material that respondent had actual knowledge of appellant's actions. Mann v. Mann, supra. His 'claim of right' was based upon respondent's 'civil death' and the probate administration of respondent's estate. In the mother's estate appellant described himself as her only 'heir now in being.' He receipted for her personal property as her 'sole heir.' Compare Buck v. McMinn, Mo.Sup., 300 S.W. 497. Compare also DeLeon v. McMurray, 5 Tex.Civ.App. 280, 23 S.W. 1038, where it was held that a conveyance by cotenants in which they described themselves as 'sole heirs' necessarily implied that such grantors' possession was hostile to the other cotenants. His possession of the residence was clearly coupled with 'an unequivocal claim of ownership'. Bell v. Barrett, Mo.Sup., 76 S.W.2d 394, 396, and Buck v. McMinn, supra.

Respondent contends the 10 year limitation is inapplicable to partition suits, citing Armor v. Frey, 253 Mo. 447, 161 S.W. 829. However, in that case, and in the cases cited therein, possession by a tenant adverse to his cotenants was not involved.

It was not until June, 1946, that respondent's life sentence was commuted to one for years, such commutation to become final in April, 1951, upon respondent's compliance with certain conditions. Assuming without deciding that respondent's 'civil disabilities' were removed in June, 1946, and that he was entitled to file his suit immediately upon his release from confinement, the removal of his disability to sue did not retroactively change the effect of the running of the statutes of limitations. When he filed his suit in January, 1948, these statutes had already run against both of his alleged causes of action.

Respondent asserts that his causes of action did not accrue until June 27, 1946, the date of the commutation of his life sentence, and that the statutes of limitations did not start to run until that date. This is not the law. A cause of action accrues, and limitations thereon begin to run, when the right to sue arises. 34 Am.Jur., Lim. of Actions, Sec. 113, p. 92; and 54 C.J.S., Limitations of Actions, Secs. 108 and 109, pages 9 and 11, citing many Missouri cases. We have studied the cases cited by respondent and find that they all restate this well-established rule. See Coleman v. Kansas City, 353 Mo. 150, 182 S.W.2d 74.

The statutes of limitations were not tolled while respondent was imprisoned. Secs. 1004 and 1020, supra, R.S.1949, Secs. 516.030, 516.170, toll the statutes for one imprisoned on a criminal charge or in execution under a sentence for a term less than life. There is no merit in respondent's suggestion that he came within the exception, 'imprisonment on a criminal charge.' In both Secs. 1004 and 1020, this exception is disjunctively joined with imprisonment in execution of a sentence for a less-than-life term. See Hyde v. Nelson, 287 Mo. 130, 229 S.W. 200, 14 A.L.R. 339. Obviously, the...