Joplin Brewing Co. v. Payne

• Decision Date: 19 June 1906
• Citation: 94 S.W. 896,197 Mo. 422
• Parties: JOPLIN BREWING CO. v. PAYNE et al.
• Court: Missouri Supreme Court

94 S.W. 896

197 Mo. 422

JOPLIN BREWING CO. v. PAYNE et al.

Supreme Court of Missouri, Division No. 2.

June 19, 1906.

1. ADVERSE POSSESSION — COLOR OF TITLE — WHAT CONSTITUTES — DEED UNDER VOID JUDGMENT.

Though no jurisdiction was obtained over the person of defendant in divorce, a sheriff's deed on a sale under execution based on a personal money judgment for alimony constituted color of title.

2. LIMITATION OF ACTIONS—HOMESTEAD—RECOVERY.

Rev. St. 1899, § 4262, providing that no action for the recovery of lands or possession thereof shall be commenced by any person unless he or the one under whom he claims was seised or possessed within 10 years prior to the action, applies to land claimed as a homestead.

3. DOWER—ASSIGNMENT—ACCRUAL OF RIGHT.

A wife's right of action for assignment of her dower accrued immediately upon the death of her husband.

4. SAME—ADVERSE POSSESSION.

A wife's right of action for assignment of her dower was barred by 10 years' possession of the land after the death of the husband.

5. HOMESTEAD—INTEREST OF WIFE—CONVEYANCE.

The interest of a wife in a homestead cannot be sold during the lifetime of her husband, and nothing passes from her by her quitclaim deed of the homestead during such life.

6. SAME—RIGHTS OF WIFE—VESTING OF RIGHT —ABANDONMENT BY HUSBAND.

Rev. St. 1879, c. 39, § 2693, provides that, if any head of a family die leaving a widow or children, his homestead shall pass to and vest in such widow or children. Held, that the homestead right did not vest in a wife and children at the time the husband abandoned them and the homestead, but only vested in them on his death.

Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

Suit by the Joplin Brewing Company against Martin V. Payne and others. From a judgment in favor of defendants, complainant appeals. Affirmed.

H. S. Miller, for appellant. C. H. Montgomery and A. E. Spencer, for respondents.

BURGESS, P. J.

This is a suit to ascertain, determine, and quiet the title to Lot No. 73, in Porter's addition to Murphysburg, now in the city of Joplin, Jasper county, Mo. The suit was commenced in the circuit court of Jasper county, but was by a change of venue transferred to the Barton county circuit court, being tried at the January term, 1903, of said court. The plaintiff claims title to the real estate in question by adverse possession under color of title; the color of title being claimed through a deed executed by the sheriff of Jasper county to G. W. Keller on the 16th day of June, 1881, and also a quitclaim deed executed by Rosanna Hicks, formerly Rosanna Payne, wife of M. V. Payne, on June 16, 1881, to said Keller. The defendants are the lawful heirs of Martin V. Payne, deceased. Both parties to the suit admit that the common source of title was in Martin V. Payne. The judgment on which execution was issued against Martin V. Payne and under which the lot in question was sold by the sheriff was a personal money judgment for alimony in favor of said Rosanna Payne, wife of Martin V. Payne, by reason of a divorce proceeding instituted by said Rosanna Payne against her said husband. The property was sold by the sheriff and purchased by G. W. Keller for $150. Said Keller and wife, by quitclaim deed dated February 4, 1884, transferred and sold said property to George Muennig and Nicholas Zentner. On August 7, 1888, Muennig and wife transferred the half interest in said property to said Zentner. Nicholas Zentner and wife on March 8, 1894, sold and transferred, by warranty deed, said property to the plaintiff, the Joplin Brewing Company.

The material facts developed by the testimony are as follows: Martin V. Payne bought the lot in question in 1875, and lived thereon with his wife and family of five children until 1879, when he abandoned his family and went to Texas. On April 12, 1880, Rosanna Payne filed a petition for divorce from her husband, said Martin V. Payne, on the ground of adultery, publication service was had, and the divorce was granted December 16, 1880. She was awarded the care and custody of her two infant children, and the court gave her a personal judgment for alimony for $250 on publication service. After Payne had gone to Texas, Mrs. Payne rented the place to Marion Hicks, her son-in-law, and for a time she lived with her said son-in-law. Afterwards she married another man named Hicks, and went with him to North Missouri and made her home there on a farm. Her family were nearly all grown at this time. The youngest, Martin V. Payne, 12 years old at the time of the sale to Keller (died November 19, 1887), had lived with his sister and brother-in-law, Marion Hicks, until he moved off from the lot in controversy before the sale to Keller, and went to live with his sister, Mrs. Mefford, in Galena, Kan. James Walter Hicks, 16 years old in 1881, worked in Lone Elm, and went to the house of his brother-in-law on Saturday nights. Nancy Elizabeth Payne married Marion Hicks, who lived on the place in controversy until a few weeks before the sale to Keller. Charles Lewis Payne, born in 1861, went to North Missouri in 1880, and made his home there. Anna Mefford married some years before, and made her home in Galena, Kan. On June 16, 1881, when the lot was sold by the sheriff to Keller, Mrs. Payne executed to Keller a quitclaim deed to said property, but her then husband, Hicks, did not join with her in said deed. The money for the lot was paid her, and she then went to North Missouri, where she made her permanent home. According to the evidence Rosanna Payne Hicks died on May 25, 1900, and Martin V. Payne, her former husband, on November 19, 1887. All the Paynes left the lot, remained away therefrom, and never made any claim thereto for more than 21 years, or until the defect of plaintiff's record title was pointed out by plaintiff's suit to quiet title.

The evidence tended to prove that the plaintiff and its grantors had been in adverse possession of the property in controversy for 21 years, and the defendants offered no evidence to rebut the evidence of plaintiff's witnesses in this regard. The court, under the evidence submitted, found that for more than 21 years before the Payne heirs claimed the lot, the plaintiff and its grantors had been in the open, notorious, peaceable, adverse, and continuous possession thereof, under color of title and claim of ownership, and that plaintiff is the absolute owner of the lot in controversy and that the Paynes had no right or title in or to said lot; that the homestead right, if not abandoned, was in the husband, Martin V. Payne; that the divorce of Mrs. Payne did not change his status with regard to...