Hynds v. Hynds

Decision Date06 December 1913
Citation161 S.W. 812,253 Mo. 20
PartiesHYNDS et al. v. HYNDS.
CourtMissouri Supreme Court

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Ejectment by A. J. Hynds and others against George Hynds, with cross-bill by defendant. From a decree awarding certain interests, plaintiffs appeal. Reversed and remanded.

J. M. McCall and P. J. Reiger, both of Kirksville, and Joseph Park, of La Plata, for appellants. Higbee & Mills, of Lancaster, and Campbell & Ellison, of Kirksville, for respondent.

LAMM, J.

Ejectment in the Adair circuit court. From certain evidence (in which a "partition suit" is referred to), we conclude plaintiffs had sued defendant at some prior time for the partition of certain lands in Adair county, that therein defendant claimed adverse possession, and that thereupon such proceedings were had in that suit, that plaintiffs were either cast or that the cause was abated until plaintiffs brought ejectment and tried out title.

At any rate, in March, 1909, plaintiffs sued in ejectment to recover three tracts of land in Adair county, for convenience here designated as A, B, and C. Tract A is the S. ½ of the S. W. ¼ of section 12, township 61, range 15, except the right of way of the Wabash railroad. Tracts B and C are two outlying tracts of timber land that need no description. Plaintiffs aver they were lawfully entitled to possession on a certain day in October, 1899. They lay ouster as of May 18, 1908.

Defendant answered with a general denial, following that by the averment that he was the owner in fee and in possession as such, claiming title, but that plaintiffs claimed some interest adverse to defendant's title. Thereupon the answer goes on to pray the court to ascertain the respective titles, estates, and interests of plaintiffs and defendant, and adjudge the same severally, and finally determine all the rights and claims of the parties, and adjudge and decree defendant to be the absolute owner, that plaintiffs or neither of them have any title, and for all proper equitable relief.

(Note: The pleader evidently undertook in his answer to state a cause of action under former section 650 to determine and quiet title—now section 2535, R. S. 1909—and this by way of defense, without reference to a counterclaim.)

Presently, at the same term, plaintiffs filed their motion to strike out all that part of the answer following the general denial, for sundry and divers reasons, but, as the motion was overruled and no assignment of error is made on that ruling, it is put away from us. At the same term plaintiffs filed their reply, in which, after denying allegations of new matter, they more fully exploited their alleged title, claiming as heirs (children and grandchildren) of one Parmelia Hynds, who died intestate seised as owner of the premises and in possession at the time of her death, to wit, in 1898, and averring that defendant was also an heir (child) of Parmelia and was devisee of another deceased heir, one, Rit Hynds (also a child), that as such heir and devisee defendant was entitled to an undivided two-fifths of the land as tenant in common with plaintiffs; that two of plaintiffs, A. J. Hynds and Jennie Mahaffey, were each entitled to a one-fifth as such tenants, and that the other plaintiffs, naming them, were the widow and children of a deceased heir of Parmelia, to wit, William Hynds, and as such, entitled to his share, to wit, an undivided one-fifth as such tenant. After restating the averment of the petition that defendant wrongfully withholds possession, etc., plaintiffs renew their prayer for judgment.

At the next, to wit, the January term, 1910, on the trial at the close of the evidence, defendant filed an amended answer. This amended answer was a replica of the former, with the addition of what the pleader called a "cross-bill." In a nutshell, the cross-bill set forth these averments: That in 1858 John Hynds died intestate in Adair county, leaving a widow, Parmelia, and certain children, one of whom was defendant, then aged two years, and William, A. J., and Richie (Rit), and Jennie Mahaffey; that Parmelia was appointed administratrix, took possession of the estate, to wit, personal property of the value of $2,500; that with the money and assets in her hands as such administratrix she bought the land described in the petition, taking title thereto in her own name; that afterwards, on dates and in ways mentioned in the answer, she settled in full with all the children of John...

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    • Missouri Supreme Court
    • 30 Abril 1921
    ... ... 277; Hubbard v ... Slavens, 218 Mo. 621; Diener v. Publishing Co., ... 230 Mo. 619; Chandler v. Railroad, 251 Mo. 599; ... Hynds v. Hynds, 253 Mo. 20; Warren v. Lead & Zinc Co., 255 Mo. 145; Carpenter v. St. Joseph, ... 263 Mo. 711. (4) If the petition in this case wholly ... ...
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