Landis v. Overton

• Decision Date: 11 April 1927
• Docket Number: 25553
• Citation: 293 S.W. 371
• Parties: LANDIS et al. v. OVERTON
• Court: Missouri Supreme Court

293 S.W. 371

LANDIS et al. v. OVERTON

No. 25553

Supreme Court of Missouri, First Division

April 11, 1927

D. S Mayhew, of Monett, for appellant.

J. S Davis, of Cassville, for respondents.

OPINION

ATWOOD, J.

This is a suit instituted by respondents to recover possession of certain lands conveyed to them by sheriff's deed in partition. The petition is in the usual form, and the land therein described is the north half of the northeast fractional quarter, and the northeast quarter of the northwest fractional quarter, all in section 1, township 23 range 29, Barry county, Mo.

Defendant's answer denied that plaintiffs were entitled to the possession of said premises or to damages, denied every other allegation in plaintiff's petition not admitted in said answer, and alleged that defendant and his son were in possession of said premises as renters. Further answering, defendant said that he was the owner in fee of a certain 12-acre tract, a part of the land covered by plaintiff's petition, described by metes and bounds as follows:

'Beginning at a point where Woodward creek crosses the section line, east of the northwest corner of section No. one (1), township No. 23, range No 29; thence in a southeastern direction along said creek, the line to be where the center of the stream ran in 1916, to the east line of said section; thence north to the northeast corner of said section one (1); thence west to place of beginning -- all in section one (1), township 23, range 29, containing 12 acres more or less, located in Barry county, Mo.'

Further answering, defendant stated that the land last above described was, on March 4, 1916, conveyed by warranty deed from A. A. Overton and wife to O. K. Overton and Clara Overton, who on November 5, 1918, 'deeded all the lands owned by them connected with the lands described in plaintiff's petition to the defendant herein; that by mistake of the scrivener, the 12 acres in section 1 which had been deeded to O. K. Overton and Clara Overton as aforesaid was left out of said conveyance to the defendant, which mistake has since been corrected by O. K. Overton and Clara Overton by making a deed to the 12 acres described in defendant's answer.'

In their reply plaintiffs admit that defendant was in possession of the premises described in their petition at the time this suit was filed, but allege that his possession was wrongful and without right, and deny each and every other allegation in defendant's answer. Plaintiffs further say that the question of the title of the real estate in this suit was adjudicated by the circuit court of Barry county on February 4, 1920, in a suit in partition, the purpose and object of which was to partition between R. C. Overton and others as plaintiffs and Oscar Overton as defendant the land in plaintiffs' petition described; that the land involved in this suit is the same as the subject-matter of said partition suit; that in said partition suit the circuit court had full and complete jurisdiction of the subject-matter and of the plaintiffs and defendant therein, and was a court of competent jurisdiction to adjudicate all matters touching the title to said real estate that were involved or might have been asserted in said suit affecting the rights of the parties thereto; that afterwards on March 19, 1923, said circuit court by consent of the parties to said suit rendered its decree in partition by which it determined, defined, and adjudicated the respective interests, estates, and titles of the parties to said suit, and by consent of said parties, one of whom was defendant herein, ordered said real estate sold by the sheriff of Barry county, Mo., that the proceeds of said sale might be partitioned between the parties to said suit; that pursuant to said order of sale the sheriff of Barry county, Mo., did on June 29, 1923, sell said real estate to the highest bidder for cash, and at said sale defendant herein was present and bid on said real estate, and, plaintiffs being the highest and best bidders, said real estate was struck off and sold to them; that after said sale...