Lewis v. Barnes

• Decision Date: 01 April 1920
• Docket Number: No. 21324.,21324.
• Parties: LEWIS v. BARNES.
• Court: Missouri Supreme Court

220 S.W. 487

LEWIS v. BARNES.

No. 21324.

Supreme Court of Missouri, in Banc.

April 1, 1920.

Appeal from Circuit Court, New Madrid County; S. H. McCarty, Judge.

Action by Wilber Lewis against Seth S. Barnes. From a judgment for plaintiff, defendant appeals. Affirmed.

Instruction No. 3 given at plaintiff's request told the jury that, defendant having offered in evidence as the source of his title an administrator's deed, made in pursuance of an order of sale for the payment of debts of the deceased, it was incumbent on him for the purpose of showing jurisdiction in the probate court to order the sale of the homestead of the widow and children of the deceased, to establish that the debt for the payment of which such sale was so ordered was incurred by deceased prior to his acquiring such homestead.

Oliver & Oliver, of Cape Girardeau, and E. F. Sharp, of Marston, for appellant.

James R. Brewer, of Caruthersville, and Wilson Cramer, of Jackson, for respondent.

WALKER, C. J.

This is an action to quiet title and in ejectment under section 2535, R. S. 1909. The land involved is the west half of the southwest quarter of section 25, township 22, range 13, New Madrid county.

A former trial before the court resulted in a finding for the defendant, from which an appeal was perfected to this court, which resulted in a reversal and remanding of the case. 272 Mo. 377, 199 S. W. 212. After the cause was remanded and the plaintiff had amended his petition, a trial was had before a jury, resulting in a verdict for the plaintiff, from which defendant appeals.

The amended petition upon which the case was tried contains the usual allegations essential to a pleading under the statute to quiet title, with a detailed description of the land; that defendant claims some right, title, or interest therein adverse to the claim of the plaintiff; and that the deed from the administrator of Stephen Lewis, through whom defendant claims title, was null and void and invested the defendant with no title in said land. Spore v. Ozark Land Co., 186 Mo. 656, 85 S. W. 556. This is followed by the usual allegations of a petition in ejectment.

Defendant's answer contains an admission of possession of the land and a general denial of every other allegation of the petition and prays for judgment. A plea in bar is then interposed based on the 30-year statute of limitations. For further answer defendant states the transfers constituting the chain of title, as follows: That John C. Stewart, as administrator of the estate of Stephen Lewis, made a deed to said land to one John W. Marr, dated August 21, 1876, duly recorded, etc., in the records of New Madrid county, and that John W. Marr thereafter sold and conveyed the land to John A. Mott, and that the latter conveyed it to Samuel Davis, and he to Kate Drulinger, and she to this defendant, who alleges that he is the owner thereof.

Plaintiff's reply admits possession of the land by defendant, but denies generally the allegations in the first count of the answer; and, after a general denial of the second count, alleges that the matters and things set out therein were fully pleaded by the defendant in his answer to plaintiff's original petition in this cause before the former trial of this case, and that said matters were fully passed upon and determined by the Supreme Court on an appeal from a judgment rendered by this court in this cause, and plaintiff now pleads the decision and judgment of said Supreme Court as an adjudication of the issues presented by the said second count of defendant's answer; and for reply to the third count, after a general denial, plaintiff says that the deed from Susannah and Francis O. Wright to Stephen Lewis was filed for record in the office of the recorder of deeds of New Madrid county January 6, 1872, and was not filed for record therein on July 19, 1872, as alleged in defendant's answer, and that upon an ark peal to the Supreme Court after the former trial said court adjudicated and determined that said deed was filed for record in the recorder's office of said county January 6, 1872, and not July 19, 1872, and plaintiff pleads in bar such adjudication and prays judgment.

Other than in defendant's motions to strike out parts of the petition, there is no controversy concerning the pleadings.

The land in question was purchased in 1871 by Stephen Lewis from Susannah and Francis O. Wright. Both parties claim under Stephen Lewis. The plaintiff claims under a quitclaim deed from his mother, Brasilia Burner, who, he alleges, was invested with a fee in the land under the homestead law of 1865 as the widow of Stephen Lewis. The defendant claims under a deed made by the administrator of said Lewis under an order of the probate court to pay a debt of the latter.

Some time in the early part of 1872, Stephen Lewis with his wife took possession of the land under the deed from the Wrights and made it their home until his death in April, 1873. While residing there in January, 1872, he bought a horse from one John W. Marr and gave the latter his note therefor for $110 secured by a mortgage on real estate in which his wife did not join. The land described was the same as that in controversy, except that in the description in the mortgage it was stated to be in section 20, instead of section 25, as in Lewis' deed from the Wrights. Lewis told a witness thereafter that he had secured the payment of the note for the horse by giving a mortgage on his land to Marr. There is no evidence that he ever owned any other land in this state than that described in the deed from the Wrights.

After Lewis' death in 1873, his widow and two minor children—one a daughter of Lewis by a former marriage and the other the plaintiff herein—remained on the land until some time in the fall of that year, when the widow, with her child, the plaintiff, went to Indiana, where she and her husband had formerly resided. Before her departure she rented the land and authorized a lawyer named Hatcher to collect the rents. The tenant continued in possession until February 1876. She remained in Indiana until December, 1874, when she removed to Illinois, and while residing there in August, 1875, married one John Burner. She lived with Burner until his death in September, 1911. In June, 1912, she conveyed the land to her son Wilber Lewis, the plaintiff, who brought the original suit in June, 1913. The facts upon which the defendant bases his claim to title are as follows: In December, 1873, one Stewart qualified as administrator of the estate of Stephen Lewis. In his inventory he describes the land in question as the property of Stephen Lewis on which John W. Marr has a mortgage. In August, 1874, John W. Marr brought suit against the administrator of the estate of Stephen Lewis to foreclose the mortgage given to secure the payment of the note of $110, contained a judgment for the debt and interest, and presented same to the probate court as a fifth class demand against the said estate, and it was so classed and probated. The widow was not made a party to any of these proceedings. No other debt than that of Marr was presented or allowed against the estate.:n May, 1875, Lewis' administrator petitioned the probate court for a sale of the land for the payment of debts. An order was made therefor, and under it the land was sold and John W. Marr became the purchaser. The report of sale having been approved, the administrator made a deed to Marr in August, 1876. From Marr, by mesne conveyances, defendant claims title.

The following admissions were made and entered of record:

"It is also admitted by the parties hereto that defendant and those under whom he claims have been in the actual, open, continuous and exclusive and adverse possession of the land in the suit since the 21st day of August, 1876, claiming to be the owners of the same, under color of the title thereto, and that the defendant and his grantors have paid all the taxes on this land since August 21, 1876, and that neither the plaintiff, nor any one for whom or under whom he claims, has paid any taxes on the land in question since August 21, 1876.

"This admission leaves the question of payment of taxes before that date, and the question of...