Lemmons v. McKinney

• Decision Date: 14 May 1901
• Parties: LEMMONS et al. v. McKINNEY et ux.
• Court: Missouri Supreme Court

63 S.W. 92

162 Mo. 525

LEMMONS et al. v. McKINNEY et ux.

Supreme Court of Missouri, Division No. 1.

May 14, 1901.

BOUNDARIES — AGREED LINE — ADVERSE POSSESSION — ADMISSION — ADMISSION BY HUSBAND — EFFECT ON WIFE'S TITLE.

1. A conveyance described the land conveyed as a certain number of acres off part of a certain section, and subsequently the grantor and one claiming under his grantee measured all the boundaries of the land conveyed, and agreed that in the spring following the measurement they would plant a hedge on the boundary line so laid off, which they did, each planting a half. Held, in ejectment between their heirs, the boundary line being in dispute, that there was no evidence to justify the submission of the case to the jury on the theory that the hedge was only intended to mark the boundary until the true line should be ascertained; it being in fact a settlement of the boundary binding on the parties.

2. Where the issue is whether land has been acquired by adverse possession by a married woman, declarations of her husband as to the character of the possession can have no effect upon her title.

3. The declarations of a husband as to the character of his wife's possession of land can have no effect upon her title, acquired by adverse possession, where the declarations are made after the maturity of the title.

Appeal from circuit court, Saline county; Richard Field, Judge.

Action by Adrian K. Lemmons and others against Willis McKinney and wife. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

This is a suit in ejectment for a strip of land containing about four acres. It arises out of a disputed boundary between the adjoining lands of plaintiffs and defendant Martha McKinney. R. M. Lemmons, now deceased, was the common source of title. In 1881 he, being the owner of a tract of 175 acres, made a deed conveying to his son, the plaintiff A. K. Lemmons, a part of it, which he described in the deed as follows: "Twenty-three acres off the north end of the east half of the southwest quarter, and twenty-three acres off the north end of the west half of the southeast quarter; also, commencing fifty-five yards south of the northwest corner of the northeast quarter of the southeast quarter, running one hundred yards east; thence south thirty-five rods; thence west one hundred yards until it intersects the line of said east half of the southwest quarter and west half of the southeast quarter, — containing fifty acres, all in section 7," etc. Shortly after the execution of that deed, in September, 1881, A. K. Lemmons, the grantee therein, sold the land to H. H. Brown by deed with the same description. Directly after Brown's purchase, he and R. M. Lemmons, the father of the plaintiffs, and the then owner of the rest of the tract, went together and measured off the land they understood to be covered by the deed from R. M. Lemmons to his son, and the deed from the son to Brown. Brown at that time was 60 years old, and Lemmons as old, or perhaps older. The two did the work themselves of measuring the land, using a surveyor's chain, taking certain stones which they recognized as monuments, and, running the lines and making the measurements, established the boundary to their mutual satisfaction, and agreed that in the spring following they would plant a hedge on the line so laid off; and this they did, Brown planting one half, and Lemmons the other half; and that hedge was standing at the date of the trial. Within two months from the date of his deed (that is, in November, 1881) Brown took possession of the land so measured off to him, by putting his son-in-law and daughter, the defendants herein, in occupancy of it; and they have occupied it continuously ever since, cultivating the land up to the hedge, and treating the hedge as the boundary of their land. In 1892, after the death of Brown, the land contained in his purchase under the above-named deeds was, in a deed of settlement among his heirs, conveyed to his daughter, the defendant Martha McKinney. After the transactions above mentioned, R. M. Lemmons made a deed conveying the remainder of his original 175-acre tract to his daughter Charity M. Lemmons. She died in 1898. The plaintiffs are her brothers and sisters and heirs, and claim as such under the deed from their father to her. R. M. Lemmons died about 1890. In 1897 Charity Lemmons had a survey of the land made by F. H. Boyd, the county surveyor; and, according to the testimony of plaintiffs' witnesses, the survey showed that the true line to mark off 50 acres as called for by the deed to Brown runs 66 feet north of the hedge, and the strip of 66 feet is the subject of this suit. On the part of defendants the testimony tended to show that they had been in continuous open, adverse possession for 16 years or more, claiming the land up to the hedge, and the only testimony of the...