Johnson v. Moore

• Decision Date: 27 September 1940
• Docket Number: 36539
• Citation: 143 S.W.2d 254,346 Mo. 854
• Parties: Joseph E. Johnson, Thomas M. Johnson, Maud Davis and Jean A. Ogg v. Rebecca B. Moore et al., Defendants, Walter L. Llafet, William B. Llafet, Sr., Joseph E. Llafet, Mamie G. Llafet, Cora F. Llafet, as Guardian and Curatrix of Frances Elizabeth Llafet and Samuel Edward Llafet, Minors, William B. Llafet, Sr., as Administrator of the Estate of Lemuel L. D. Llafet, Belle Fowler and Geneva Melton, Appellants
• Court: Missouri Supreme Court

143 S.W.2d 254

346 Mo. 854

Joseph E. Johnson, Thomas M. Johnson, Maud Davis and Jean A. Ogg v. Rebecca B. Moore et al., Defendants, Walter L. Llafet, William B. Llafet, Sr., Joseph E. Llafet, Mamie G. Llafet, Cora F. Llafet, as Guardian and Curatrix of Frances Elizabeth Llafet and Samuel Edward Llafet, Minors, William B. Llafet, Sr., as Administrator of the Estate of Lemuel L. D. Llafet, Belle Fowler and Geneva Melton, Appellants

No. 36539

Supreme Court of Missouri

September 27, 1940

Appeal from Ray Circuit Court; Hon. James S. Rooney, Judge.

Affirmed.

Earl C. Borchers and Albert D. Menefee for appellants.

(1) Plaintiffs must recover, if at all, upon the strength of their own title, and not upon the weakness of defendants' title. Cullen v. Johnson, 29 S.W.2d 39; Himmelberger-Harrison Lbr. Co. v. Craig, 248 Mo 330. The last cited case holding that the burden of proving adverse possession is on the party claiming by adverse possession. (2) The decree purporting to set aside a portion of the will of Lemuel Boone is void. Plaintiffs tacitly admit said decree is void. Therefore, no citations are offered in support of this point. It further being apparent upon the face of the decree that same is an attempt to judicially ratify a stipulation or agreement which the parties were wholly without authority to make or enter into. (3) The children of Lemuel Boone never acquired a greater title to the real estate in question than a life estate. (4) Payment of taxes and preservation of the remainder was said and is the duty of a life tenant. Therefore, the payment of taxes and preservation of the remainder is not available to plaintiffs as a basis of claim of ownership under adverse possession. Herbst v. Merrifield, 34 S.W. 571, 133 Mo. 267; Witcher v. Henley, 253 S.W. 1002; Larsen v. Hansen, 12 S.W.2d 505; Falvey v Hicks, 286 S.W. 385, 315 Mo. 442; Wicobb v Moore, 257 S.W. 474; Hall v. French, 65 S.W. 769, 165 Mo. 430. (5) No proof was offered to show that plaintiffs or their grantors had been in adverse possession of the real estate in question for any given period of time. Himmelberger-Harrison Lbr. Co. v. Craig, 248 Mo. 330; 2 C. J. 276, sec. 621; Burnside v. Doolittle, 24 S.W.2d 1011; Badger Lbr. Co. v. St. L.-S. F. Ry. Co., 89 S.W.2d 954; Crismond v. Kendrick, 29 S.W.2d 1100; Eaton v. Curtis, 4 S.W.2d 819, 319 Mo. 668; 2 C. J. 134, sec. 230. (6) Under the evidence in this case plaintiffs did not establish title by adverse possession or under any Statute of Limitations. Crismond v. Kendrick, 29 S.W.2d 1100; Sutton v. Casseleggi, 77 Mo. 397; Robinson v. Claggett, 50 S.W. 280, 149 Mo. 153; Crowl v. Crowl, 92 S.W. 890, 195 Mo. 338; Taylor v. Planet Property & Financial Co., 78 Mo.App. 137.

Rogers & Penniston and David A. Thompson for respondents.

(1) The decree of the chancellor, that respondents have acquired title by adverse possession and limitations, is in accordance with the evidence and the law applicable thereto. Secs. 850-857, 1520, R. S. 1929; Burgess v. Magers, 24 S.W.2d 1042; Langford v. Welton, 48 S.W.2d 860; Miller v. Rosenberger, 144 Mo. 292, 46 S.W. 167; Smith v. Wallace, 343 Mo. 1, 119 S.W.2d 813; Kee v. Jernigan, 60 S.W.2d 522. (2) The possession of respondents and their predecessors in title was adverse, hostile, open, notorious, exclusive and continuous from the date of purchase by Henry Page in 1880. (3) The will of Lemuel Boone created a tenancy in common. Therefore upon the death of each life tenant the remainder, as to that interest, immediately vested in fee and the Statute of Limitations began to run. Sec. 3114, R. S. 1929; Naylor v. Godman, 109 Mo. 543, 19 S.W. 56; King v. Theis, 272 Mo. 416, 199 S.W. 183; Philbert v. Campbell, 317 Mo. 556, 296 S.W. 1001; Holloway v. Burke, 336 Mo. 380, 79 S.W.2d 104.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Joseph E. Johnson and others instituted this action on August 21, 1937, to quiet title to the North half of the Northeast quarter of Section 11 (except one-half acre thereof reserved for a grave yard) and the North half of the Northwest quarter of Section 12, Township 52, Range 28, West in Ray county, Missouri. They assert title here under adverse possession and the trial court so adjudged. Defendants Lemuel L. D. Llafet, Belle Fowler and Geneva Melton appealed. They question the judgment only in so far as it affects the title to the real estate situate in Section 11 -- the "West 80."

Lemuel Boone is the common source of title. He died testate in 1876, leaving surviving as his heirs at law his four children, viz.: William S. Boone, Martha Jane Griffey, Elizabeth Banister, and Sarah Llafet. Lemuel Boone devised one-fourth of his real estate to each of his four children for life, with remainder over. Sufficient for the purposes of this review, the nature of the gift to each of his said children may be had from the following excerpts of his will, to-wit:

"Third. I will and bequeath to each of my children, to-wit: . . . My daughter Martha Jane Griffey, wife of William Griffey, for and during her natural life one-fourth part of all my property real personal and mixed, to her own sole and separate use independent of her present or any future husband, afterwards in remainder to her children if she should have any, if not, then her interest share and estate shall go to and be divided among her brother and sisters then living or their descendants. . . .

"It is further expressly understood that it is my full will and purpose that my said property herein and hereby willed and devised shall go to my children and not to their husbands or wife, that each of them may after my death have and enjoy the property for and during their lives and afterwards that the same shall go to their children where they shall have any, if not, then the property shall be held by those of them yet alive or their children or their descendants.

"It is my will that if my said children shall all agree thereto may sell and dispose of my said real estate and reinvest the means arising from the sale of the same, or have the same loaned out on good security and the same shall be done in the name and by the Executor of my last will and testament and if sold after my estate shall be settled up then he as trustee shall be invested with the power and authority to sell the same and the proceeds of the same shall be held and kept and disposed of as herein provided except, the issues or income arising from the same which shall go to each one as herein above provided."

Each of said children of said Lemuel Boone died intestate and, except said Sarah, childless. We understand the heirs of Lemuel Boone and his daughter Sarah, as of the date of trial, were: Lemuel L. D. Llafet, a son of said Sarah. Belle Fowler, a granddaughter of said Sarah and a daughter of Augusta A. Gant, deceased. Geneva Melton, a granddaughter of said Sarah and a daughter of Sarah Waring, deceased. John Banister, a grandson of said Sarah and a son of Eva Banister, deceased. Lamuel L. D. Llafet, Belle Fowler and Geneva Melton filed answers. They claim that each, with said John Banister, is entitled to an undivided one-fourth interest in said North half of Section 11.

After the death of Lemuel Boone suits were instituted contesting his said will and for a partition of his said estate among said life tenants. Respondents admit there were certain imperfections in said proceedings. However, they appear to have been consolidated and judgments entered at the November Term, 1877, of the Circuit Court of Ray county, Missouri, purported to adjudicate said controversies. The judgment in the partition suit was a dismissal. The purported judgment in the will contest recites that it is subject to the rights of any future issue of Sarah Llafet, Elizabeth Banister, and Martha Jane Griffey; that Lemuel L. D. Llafet, Augusta A. Gant, Eva Banister and Sarah Waring (children of Sarah Llafet) entered their voluntary appearance, and that the judgment was entered under the agreement and with the consent of all parties. It vested an absolute fee to seventy-five acres (not here involved) of the estate of Lemuel Boone in Lemuel L. D. Llafet, Augusta A. Gant, Eva Banister and Sarah Waring, in equal parts, and the fee to the balance of said estate in said Lemuel Boone's children in equal parts, subject to the rights of any future issue as aforesaid.

After said judgment said children of Sarah Llafet (Lemuel, Augusta, Eva and Sarah) entered into the possession of the real estate set off to them under said decree. Thereafter Lemuel, by various deeds, acquired the interests of his sisters in sixty-four acres thereof and by warranty deed, dated July 25, 1892, conveyed the same to Caleb Jackson for the recited consideration of $ 2,000.

On November 25, 1878, Martha Jane Griffey and husband acquired the title of her brother and sisters to the Northwest quarter of the Northeast quarter and Mary E. Banister and husband acquired the title of her brother and sisters to the Northeast quarter of the Northeast quarter of Section 11 here involved, under quitclaim deeds. Henry Page acquired said Northeast quarter from Mary E. Banister on August 6, 1880, and acquired said Northwest quarter from Martha Jane Griffey on April 28, 1881, under warranty deeds. Henry Page died intestate in 1882 and the land in Section 11 was set off to two of his heirs, to-wit, Nelle Page and Thompson Page. Nelle, under warranty deed dated April 13, 1887, acquired the interests of said Thompson, and on February 13, 1891, by warranty deed, conveyed to Caleb Jackson. On October 8, 1898, Caleb Jackson, by warranty deed, conveyed the same to Madison Johnson and wife, for the recited consideration of $ 6,600. Respondents are the sole heirs of Madison Johnson, who survived his wife and died...