Lester v. Tyler

• Decision Date: 14 March 1934
• Docket Number: No. 30913.,30913.
• Citation: 69 S.W.2d 633
• Parties: LESTER et al. v. TYLER.
• Court: Missouri Supreme Court

69 S.W.2d 633

LESTER et al. v. TYLER.

No. 30913.

Supreme Court of Missouri, Division No. 1.

March 14, 1934.

Appeal from Circuit Court, Pemiscot County; John E. Duncan, Judge.

Action by Necie Ann Lester and others against J. J. Tyler. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded with directions.

Ward & Reeyes, of Caruthersville, for appellant.

S. V. Medling and Sam J. Corbett, both of Caruthersville, for respondents.

HYDE, Commissioner.

This case, coming to the writer by reassignment, is a suit in two counts; the first count is ejectment, the second is partition. Plaintiffs claim to own a one-half interest in a tract of land of about 2 acres in the town of Denton, in Pemiscot county. Defendant, by his answer, made claim to all of the land by adverse possession. He also set up estoppel and laches by reason of plaintiffs allowing him to make valuable improvements without setting up any claim thereto. The trial court found that plaintiffs were the owners of a one-half interest therein and judgment was entered therefor for plaintiffs on the first count. The court also found that plaintiffs were entitled to partition; that defendant did not make the improvements in good faith and was not entitled to any allowance therefor; and that because of the size of the property it could not be partitioned in kind but should be sold. The court entered judgment for plaintiffs on the second count and ordered land sold and the proceeds divided between the parties according to their interests as found by the court. From this judgment, defendant has appealed.

The court found and recited in its judgment that the interests of the parties were as follows:

"The plaintiff, Necie Ann Lester, an undivided one-sixth interest in and to the whole of said land and property.

"The plaintiff, Dovie Piercey, an undivided one-sixths interest in and to the whole of said land and property.

"The plaintiff, C. A. Piercey, an undivided four-sixths interest in and to the whole of said land and property.

"The defendant, J. J. Tyler, an undivided one-half interest in and to the whole of said land and property."

Plaintiffs admit that this part of the judgment was incorrect, since they only claim to own one-half interest in the property and ask that it be corrected to state their interests as twelfths, rather than sixths. Defendant, however, contends that plaintiffs are not entitled to recover at all and that his declarations of law, in the nature of demurrers to the evidence as to each count, should have been sustained. Plaintiffs' evidence was that N. M. Nunnery, under whom they claim, obtained a deed to the land in 1875 from D. M. Boone. This deed conveyed a tract of 80 acres. The land in dispute is located in the south 40 of this 80. While the evidence is not very definite, it does tend to show that this land was a part of Nunnery's farm which he had cleared, otherwise improved and used under claim of title through this deed for more than ten years before his death in 1909. It is definitely stated that he finally moved on this land and lived there eight years continuously before he died. Defendant showed only that this land was granted by the United States to the state of Missouri as swamp and overflow land; that a patent was issued by the state of Missouri to Pemiscot county; and that Pemiscot county conveyed it to A. D. Boone in 1855. There is nothing to indicate that any one ever disputed Nunnery's title to it. In 1904 Nunnery gave a right of way deed to the Mississippi Valley Railroad Company, to the 2-acre tract in controversy and also a 50-foot strip all the way across the south 40 of the 80 conveyed to him by Boone. When the railroad was built, this 2-acre tract was used as a switchyard. Later, the railroad company took up its track and abandoned the land. The various witnesses do not agree upon when the tracks were finally taken up, but fixed the time all the way from 1915 to 1918. It appears that the railroad company stopped running trains a year or two before it took up its tracks. After Nunnery died, that part of this 80, north of the railroad, was occupied by his widow under her dower and homestead rights until her death in 1911. The part south of the railroad had previously been sold and was part of the town of Denton, built up with stores and residences.

Nunnery left surviving him two daughters, Narcisis Funderburk and Victoria Farris. In 1910, A. B. Denton, defendant's grantor, obtained a deed from Mrs. Funderburk for all of her undivided interest in the whole 80, subject to her mother's dower. Victoria Farris died in 1914, leaving surviving her her husband, R. L. Farris, and their two daughters, Nellie Farris Jordan and Dovie Farris Piercey. Victoria Farris, before her marriage to R. L. Farris, had been married to one Hensley. It seems that there were six children born of this prior marriage. Three of these children were living at the time this suit was commenced. They were plaintiff Necie Ann Lester, her sister Myrtle Wheeler and her brother Clint Hensley. Another brother, Garlin Hensley, was dead; apparently he left no surviving children, but whether he died before or after his mother is not made clear. The other two Hensley children died before they became of age and had no children. In 1915, after the death of Victoria Farris, A. B. Denton purchased the interest of her husband, the two Farris children, and the three now surviving Hensley children in the Nunnery land north of the railroad, and obtained a warranty deed signed by them. Denton said that because "one wouldn't sign it, (Garlin?) and one was a minor," he had a trust deed, signed by Victoria Farris and her husband in 1913, foreclosed to perfect the title. He also produced receipts signed by the children of Victoria Farris in 1915 and 1916 "in full on settlement of land." Evidently that transaction was before the railroad was abandoned. One basis for Denton's claim of title was "that these deeds conveyed the land down to the railroad and when the railroad was abandoned this land, it went to the land owner there."

Defendant purchased the land from Denton in 1929, a few months before this suit was brought. After he purchased it, he hauled material there to build a store building. R. L. Farris and plaintiff C. A. Piercey went to him and notified him of their claim. Defendant's version of this is as follows:

"I had at that time bought all the material for the building. They come down and wanted to know if I had bought that strip of land and I told them yes, and he said, `do you know that it belongs to us?' and I said `no', and he said, `it does belong to us', and he said that they were going to take it, and I said, `well, you may do it, but I don't know so much about it', and they said, `well, we just wanted to tell you about it', and I said, `you must notify me according to law and we will see further about it', and that was all they ever said about it. * * * When they came to see me that evening they told me they were claiming an interest in this property and not to put these buildings on the ground or any other improvements, because they were going to bring a law suit for their interest, but notwithstanding that I went right ahead and put the building up, for I already had some stuff there. Mr. Denton told me before I bought it that these people were making claim to it, and I knew that when I bought it; and he said notwithstanding that fact he would make me a deed to it."

Defendant relies upon the adverse possession of Denton. Mr. Denton's own evidence was that he took possession of the land after the railroad had abandoned it and built a fence around it in 1918, which was more than ten years before this suit was commenced, and that he had farmed it or rented it to be farmed by others ever since that time. There was other evidence on the part of defendant tending to show that the land was fenced by Denton ten years before plaintiffs brought this suit. Denton also testified that he rented the land to Charlie Lester, the husband of plaintiff Necie Ann Lester, in 1919, to farm for him. On part of the plaintiffs, however, Lester testified that the fence was built and that he farmed the land later than Denton claimed; that instead of renting the land from Denton they were partners in raising potatoes on it; that Denton knew that his wife was claiming interest in it at the time; and that Denton just said he had some interest in it but did not say what interest he claimed in it. Plaintiff had other evidence that Denton had not fenced the land until 1921 or 1922; that before that time, after its abandonment by the railroad, "it was laying out as a kind of a common. It had been used for a log yard * * * and a kind of picnic ground." It was also shown that in 1925 Denton's fence was no longer there; that plaintiff C. A. Piercey started to cut some stalks on it; and that Denton ordered him off. Thereafter, Piercey had some notices to vacate prepared by a lawyer, had the constable serve them upon adjoining property owners whose buildings encroached upon the tract, and advised with lawyers about bringing suit then. Piercey also had deeds prepared for the conveyance of the outstanding interests of the Farris and Hensley children to him and R. L. Farris jointly and obtained the signatures of all of them except his wife and plaintiff Necie Ann Lester. He later obtained a deed for the interest of R. L. Farris.

While the court refused defendant's declarations of law, declaring that plaintiffs were not entitled to recover on either count, it did give declarations of law, requested by defendant, stating that plaintiffs could not recover on either count unless the court found "that N. M. Nunnery and those claiming under him had actual possession for ten consecutive years of the two acres of land in controversy, by having same enclosed or in cultivation, or with some physical holding thereof or * * * had actual possession for ten continuous...