Hunter v. Wethington

• Citation: 103 S.W. 543,205 Mo. 284
• Parties: HUNTER v. WETHINGTON
• Decision Date: 29 May 1907
• Court: United States State Supreme Court of Missouri

103 S.W. 543

205 Mo. 284

HUNTER v. WETHINGTON

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. EJECTMENT—POSSESSION—PARTIES.

Where, in ejectment, it was shown that the actual possession of a part of the land was held by defendant's tenant at the institution of the suit, plaintiff could not recover judgment for the whole without joining the tenant as a party defendant under Rev. St. 1899, § 3056 [Ann. St. 1906, p. 1756], requiring suits in ejectment to be brought against the person in possession.

2. ACTION—JOINDER OF CAUSES OF ACTION—EJECTMENT—SEVERAL TENANTS.

Where different tenants occupied separate portions of the premises claimed by plaintiff in ejectment, they should be separately sued.

3. EJECTMENT—JOINDER OF LANDLORD—STATUTES.

The common-law rule that ejectment must be brought against the occupant or person in possession is not changed by Rev. St. 1899, § 3056 [Ann. St. 1906, p. 1756], providing that ejectment must be brought against a person in possession, though section 3057 [Ann. St. 1906, p. 1757] provides that the landlord may be made a party defendant in case the property is in the possession of the tenant.

4. SAME—ADVERSE POSSESSION.

Possession of the defendant in ejectment required in order to sustain such action by Rev. St. 1899, § 3056 [Ann. St. 1906, p. 1756], is not the same as that necessary to sustain a claim of adverse possession so as to preclude a defendant claiming title by adverse possession for 10 years from denying possession at the time suit was brought.

5. EVIDENCE — WEIGHT AND SUFFICIENCY — UNCONTRADICTED EVIDENCE—ADVERSE POSSESSION—WEIGHT OF EVIDENCE.

Where, in ejectment, defendant claimed by adverse possession under color of title, and two witnesses testified to adverse possession in defendant for 10 years, the fact that they were not disputed by direct testimony did not require the court to find for defendant on such issue; the court as a trior of the facts being entitled to pass on the credibility of such evidence.

6. ADVERSE POSSESSION — COLOR OF TITLE — EVIDENCE.

Defendant entered certain land as a mere squatter, intending to purchase it from the first person who would sell it to him. A deed to the land was executed to defendant by H. and wife on May 31, 1893, which was not filed for record until July 8, 1903, a few days prior to the institution of plaintiff's ejectment suit. The deed appeared to be altered, and defendant, not only paid no taxes on the land but cleared and improved only five acres in 12 years; the small improvements made being placed on the land when he was a squatter and before he received the deed. Held insufficient to establish adverse possession under color of title.

Appeal from Stoddard County, Circuit Court; James L. Fort, Judge.

Action by S. B. Hunter against S. L. Wethington. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

C. L. Keaton, for appellant. Mozley & Wammack, for respondent.

GRAVES, J.

Action in ejectment for 80 acres of land in Stoddard county. Petition in ordinary form. Answer a general denial. Jury waived, and trial before the court. Finding and judgment for the plaintiff, and defendant appeals. Plaintiff filed his motion to dismiss the appeal for certain alleged deficiencies in the abstract of the record, but this was, prior to the argument of the cause, overruled by this court. Afterward the respondent prints the entire bill of exceptions, by way of an additional abstract of the record, so that we now have a perfected abstract in the cause.

From the bill of exceptions it appears that the plaintiff showed a complete record title, by conveyances in legal form, from the government down to himself. In this bill of exceptions appears the following: "Plaintiff showed a regular chain of title from the government to himself by legal conveyance, and that he and his grantors have paid the taxes on the land each year, and for the purpose of this bill of exceptions defendant admits that the plaintiff has the paper title to said real estate. Defendant claims title by adverse possession under his deed." The deed above referred to was a quitclaim deed, purporting to have been executed by William Hodge and wife to Sam Wethington for the land in dispute on May 31, 1893, and on said day acknowledged before Charles Massey, a justice of the peace. This instrument was not filed for record until July 8, 1903, just 23 days prior to the institution of this suit. Defendant Wethington, testifying in his own behalf, said that at the institution of this suit he did not live on the land, but that he was cultivating all of the cleared land, except a garden spot; that some 18 months before he had rented the house and garden spot to one Powell for $1 per month, and said Powell was in possession of the house and garden; that he (defendant) had cultivated the field each year. He further said that he took possession of the land and built the house thereon some two years before he got the deed from Hodge; that Hodge claimed to own the land, and he paid $50 for the 80 acres; that he had paid no taxes, saying that they could not let him pay any taxes. As to whom is meant by "they" does not appear. In telling when and how he first settled upon the land, he said: "I went there and stayed on the land, with the expectation of buying it from the first man who would sell it to me. I wanted a home, and that was the best I could do. They told me there they didn't know who owned it, and this man Hodge come along and told me he owned it, and I just bought it from him." He further testified that he made no clearing until after he got the deed from Hodge, and since then had only cleared five acres; that he or his tenants had occupied the house on the land from the time it was built until date of the trial. Charles Massey, who acknowledged the deed, testified, in substance, that he took the acknowledgment of the deed; that defendant was living on the land at the time, and had a house and a clearing of five or six acres. The deed was shown the witness, and his attention was called to an erasure in the description and handwriting of the instrument, including that substituted for the erased portion. The witness testified that he thought it was all his handwriting, but he was not positive, nor was he positive that he had made the erasure in the deed. This deed was objected to at the trial on account of the erasure but we see no ruling of the court thereon, and presume that the court considered it in evidence for what it was worth. The deed was likewise submitted to this court at the argument of the case. The witness Massey further testified to the continuous possession of the defendant for some time prior to the deed, and that after the deed defendant claimed title, and was recognized as the owner by parties in the neighborhood. Defendant Wethington testified that the erasure and change in the description was made before the deed was acknowledged. This in substance is the evidence.

The bill of exceptions as printed in full by the respondents contains this statement, just after the close of the testimony: "Whereupon the defendant prayed the court to make the...