Jennings v. Cherry

• Decision Date: 03 December 1923
• Docket Number: No. 23626.,23626.
• Citation: 301 Mo. 321,257 S.W. 438
• Parties: JENNINGS et al. v. CHERRY et al.
• Court: Missouri Supreme Court

257 S.W. 438

301 Mo. 321

JENNINGS et al. v. CHERRY et al.

No. 23626.

Supreme Court of Missouri, Division No. 2.

December 3, 1923.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Ejectment by William H. Jennings and others against J. E. Cherry and others. From a judgment of dismissal, plaintiffs appeal. Affirmed.

C. R. Landrum, of hit. Vernon, and H. H. Bloss, of Aurora, for appellants.

I. V. McPherson, of Aurora, and Rex V. McPherson and J. M. McPherson, both of Mt. Vernon, for respondents.

HIGBEE, C.

This is an action of ejectment against Mary Gibbs, brought in the circuit court of Lawrence county, for the east half of the northwest quarter and the northwest fourth of the northwest quarter of section 26, township 28, range 27, in Lawrence county. An amended petition was filed, laying the ouster on the ___ day of ___, 1914, and averring that since the institution of the suit Mary Gibbs, on May 17, 1920, conveyed the land to Rex V. McPherson, and that McPherson conveyed it to J. E. Cherry, who was then in possession.

The defendants, J. E. Cherry, Rex V. McPherson, Mary Gibbs, and Charles A. Manse, each filed a separate answer, admitting that Mary Gibbs conveyed the land to Rex V. McPherson on May 17, 1920, and that McPherson, on July 24, 1920, conveyed it to J. E. Cherry; that the defendant Cherry is the owner and is now in possession of said land; and that he and those under whom he claims title have had exclusive, adverse possession and paid all the taxes thereon for more than 31 years; denying all other allegations of the petition; and praying that the title be adjudged to be in the defendant Cherry.

The reply is a general denial and avers fraud in the procurement of defendant's title and, in the view we take of the case, need not be set out. The venue was changed to Jasper county, where, on trial, the plaintiffs dismissed the action as to the northwest fourth of the northwest quarter of section 26. The court found the issues for the defendants, and the cause was dismissed, from which judgment the plaintiffs appealed.

It was admitted on the trial that Francis' M. Jennings, the father of the plaintiffs, acquired title to the land in controversy by deed, dated March, 14, 1870, which was duly filed and recorded, showing that the consideration paid was $3,000; that he and his family resided on said land as his homestead until he died, intestate, on October 11., 1871, leaving the four plaintiffs as his only children and heirs, the eldest being then 15 and the youngest 3 years of age. They were children by a former marriage. Their mother having died, their father, about 1 year before his death, intermarried with Sarah Ellen Faucett, who survived him. The widow and the plaintiffs continued to live on the land until May 10, 1875, when Mrs. Jennings (then the wife of John D. Carroll) and her husband conveyed it to Norman Gibbs for the consideration of $200, who thereupon took possession of the land. Plaintiffs' evidence tended to show that the land was worth $25 or $30 per acre at the time of their father's death; that when the stepmother conveyed the land to Gibbs she told plaintiffs they would have to find a home elsewhere; that the eldest boy, William H. Jennings, found a home for his sister Isabell and took his two brothers and went to Arkansas; and that neither of the three brothers have ever since lived in this state. Mrs. Jennings (Mrs. Carroll) died in the year 1914.

The evidence for the defendants tended to prove that Norman Gibbs took possession of the land on May 10, 1875, and remained in exclusive possession thereof until he died, testate; that by his last will he devised it to his widow, Mary Gibbs, who remained in exclusive possession until May 17, 1920, when she conveyed it to Rex V. McPherson, who thereafter conveyed it to the defendant Cherry. Why either of the other parties were joined as defendants or some of them are named as executors, does not appear.

The defendants read in evidence the orders of the probate court of Lawrence county, made at the January term, 1873, reciting that each of the plaintiffs was a minor residing in said county, and appointing Andrew J. Durnell curator of the estates of said minors, and that he qualified and gave bond as such. The order also recites that William H. Jennings, over the age of 14 years, appeared and made choice of said Durnell as curator of his estate.

The defendants also read in evidence the judgment of the circuit court of Lawrence county rendered March 8, 1876, in the case 32 Andrew J. Durnell, as curator of the plaintiffs, against Norman Gibbs and Sarah Ellen Carroll, formerly Sarah Ellen Jennings. This was an action in ejectment for the 80 acres in controversy. The judgment recites that the court finds from the evidence that Francis M. Jennings died on August ___, 1872, leaving Sarah Ellen Jennings, now Sarah Ellen Carroll, as his widow and the plaintiffs, his sole children and heirs at law; that said Francis M. Jennings owned said land in fee; that it did not then exceed $1,200 in value and was the homestead of said Jennings at the time of his death; that it passed to and vested in his said widow in fee, subject to a reasonable allowance from the products and rents of said land toward the support of such of said minor children as were not of sufficient ability to support themselves until they attained their majority; that on November 16, 1875, Sarah Ellen Carroll sold and conveyed said land to the defendant Norman Gibbs, who thereupon took and still retains possession thereof; that the fences on said land had been washed away and that it would take the rent and income of said land for the year 1876 to repair them; that William E. Jennings and Isabell Jennings are fully able to support themselves, but that James Robert Jennings and Thomas Jennings are not; that if said Gibbs shall cultivate said land or any part thereof, he shall render to said Durnell as curator of said James Robert and Thomas. Jennings each the 1/24 part thereof in kind of the crops he may raise thereon until each of the said minors attained his majority, to wit, January 1, 1882, and January 1, 1881, respectively, and that subject to said charges said Gibbs is the owner of said lands in fee; and judgment was rendered accordingly. The annual and final settlements of the curator were read in evidence showing the receipt of various small sums paid the curator by Gibbs as rent, and that Durnell accounted to each of said two minors and that he paid small sums to them.

Plaintiffs, in rebuttal, offered evidence tending to show that Norman Gibbs knew at the time he got the deed from Mrs. Carroll that her purpose in selling the land was to cheat and defraud the plaintiffs out of their inheritance, and that McPherson and Cherry had notice of such purpose when they severally acquired title; also, that Durnell brought the suit against Gibbs through collusion with the latter to enable him to defeat plaintiffs' title.

Respondents insist that appellants' bill of exceptions should not be considered because it was not filed within the time allowed by the trial court and that further time was not granted for that purpose. Section 1460, R. S. 1919, provides that the bill of exceptions may be filed at any time before the appellant shall be required to serve his abstracts of the record. The bill of exceptions was properly filed. State v. Rogers, 253 Mo. 399, 409, 161 S. W. 770; Grouch v. Heffner, 184 Mo. App. 365, 368, 171 S. W. 23.

2. Under the conceded facts, at the time of the death of Francis M. Jennings on October 11, 1871, the homestead, if not...