Keith v. Keith

• Decision Date: 31 October 1883
• Parties: KEITH et al., Appellants, v. KEITH.
• Court: Missouri Supreme Court

80 Mo. 125

KEITH et al., Appellants,

v.KEITH.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

Wallace & Chiles for appellants.

Alex. Graves for respondents.

HENRY, J.

This is a suit for partition of several contiguous tracts of land, in Lafayette county, among the children and grandchildren of James M. Keith, deceased, plaintiffs alleging that said James M. Keith, under the will of his father, James W. Keith, and a deed executed to him by the administrators with the will annexed of his father's estate, had a life estate in said lands, with remainder in fee simple to the children of said James M. Keith. Said will was made in Clarke county, Kentucky, on the 27th day of January, 1849, and admitted to probate in the county court of Clarke county on the 26th day of May, 1851, and the deed from the administrators of the estate of James W. Keith to James M., was executed May 13th, 1858, and was recorded in Lafayette county April 17th, 1879, a few days after the death of James M. Keith, which occurred in March or April, 1879.

Defendants, John Johnson and John A. S. Tutt, in their answer, set up a claim to the lands, based upon the following alleged facts: That in March, 1877, said James M. Keith borrowed of said Johnson and executed his note for $1,850, and also executed a deed of trust to Tutt, conveying the lands in question to secure said loan, without any notice to Tutt or Johnson that he had only a life estate in the lands; that James M. Keith had, for thirty years prior to the execution of said note and deed of trust, been in the open, notorious and continuous adverse possession of said lands, claiming and using them as his. The plaintiffs, by their replication, denied all of said allegations.

The evidence for plaintiffs tended to prove that after the death of James M. Keith, the deed from Huston and Donney, administrators with the will annexed of the estate of James W. Keith, conveying a life estate to said James M., with remainder to his children, was found among his papers and placed upon record. On the trial plaintiffs offered as evidence the last will of James W. Keith and the probate thereof, duly certified under the act of Congress, which was rejected by the court, on the ground that it was not recorded or probated in Lafayette county. They then offered the deed from the administrators of the estate of said James W. Keith to said James M. Keith, which was also rejected. That deed purports to have been executed under and by virtue of said last will and testament of James W. Keith. It was admitted that the title to the land was in James W. Keith at the time of his death, which occurred in Kentucky in 1849. For defendants the testimony tended to prove the allegations in the answer of Johnson and Tutt, and there was evidence in rebuttal offered by plaintiffs tending to prove the contrary.

We have not thought it necessary to incumber this opinion with the testimony, or with the numerous instructions given and refused, thirteen in number, seeing no good purpose which would be subserved by incorporating them bodily into this opinion. The court found the issues for defendants and rendered a judgment accordingly, from which plaintiffs have appealed.

1. ESTATES FOR LIFE AND IN REMAINDER: adverse possession.

One, the only instruction given for plaintiffs, declared correctly that if James M. Keith was seized of an estate for life with remainder in fee to his children, then his possession was not adverse to the estate claimed by the children, and that he could not, by his declarations, acts and conduct, and claim of a greater or different estate, make his possession adverse to his children, so as to enable him, or Tutt and Johnson claiming under him, to invoke the statute of limitations by setting up such possession. Salmons v. Davis, 29 Mo. 176.

2. ADVERSE POSSESSION: acceptance of deed for less than the fee.

The instructions for defendants were, except one, in relation to the admissibility and effect of the last will and testament of James W. Keith, and the deed executed by the administrators of his estate to ...