Mahoney v. Handley

• Decision Date: 06 April 1923
• Docket Number: No. 23183.,23183.
• Citation: 250 S.W. 379
• Parties: MAHONEY v. HANDLEY et al.
• Court: Missouri Supreme Court

250 S.W. 379

MAHONEY v. HANDLEY et al.

No. 23183.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Appeal from Circuit Court, Moniteau County; J. G. Slate, Judge.

Suit by Ellen Mahoney against James Handley and others to ascertain and determine title to land and for partition. Judgment for defendants, and plaintiff appeals. Affirmed.

Baker & Baker, of Fulton, and Embry & Embry, of California, Mo., for appellant.

S. C. Gill, of California, Mo., for respondent Robert Handley.

GRAVES, P. J.

The petition is in two counts. By the first count plaintiff seeks to have the title to 120 acres of land in Moniteau county ascertained and determined. By the second count she seeks to have partition made, alleging that she is entitled to a one-seventh interest therein. She likewise sets out the portions to which the several defendants are entitled. Plaintiff is the daughter of Patrick Handley, deceased, who died about the year 1892. The defendants are other heirs at law of deceased. Some are children and others alleged heirs of children. Only two of the defendants answered. Michael Handley filed answer by which he said that he had no interest in the land, and claimed no interest therein, and prayed to be discharged with costs.

Defendant Robert Handley, after making certain admissions, pleads: (1) That Patrick Handley and his wife entered into an agreement with him to the effect that if he would live with and take care of them and provide for them as long as they lived, he should have the land involved, and all the property which they had; that he faithfully performed such contract, and he asks that it be specifically performed by a decree of title in him. He further avers that after the making of said contract he went into the possession of the place and made valuable improvements thereon, and further that four of the children (defendant's heirs) recognized said contract and made deeds to him. As stated, he prays for the specific performance thereof; and (2) he pleads the statute of limitation. Reply was a general denial. The trial court found for defendant Robert Handley, specifically enforcing the pleaded contract.

In the findings and judgment It is found that Patrick Handley died in 1891, and his wife, Margaret Handley, died In 1901. The son Michael Handley testified that he died in February, 1892. No finding is made upon the question of adverse possession for the statutory period of ten years.

Details of the evidence will be left to the opinion. Plaintiff introduced no evidence, the admission of the answer being such as to show her heirship, and interest in the land, unless she was precluded by one or the other of the defenses pleaded.

I. The appellant briefs but two points. First it is urged that the defense of the statute of limitations was not sustained under the law. In the second point it is urged that under the evidence specific performance should not have been decreed. As to the first it suffices to say that the judgment in this case is not predicated upon adverse possession. As said, there is no finding or judgment upon that issue. There is a simple finding of the contract pleaded and a decree of title in Robert Handley in the specific performance thereof. The decree goes no further, and the matter suggested in the first point, supra, is not in the case here. This peculiar situation is no doubt accounted for by a ruling of the trial court occurring in this way:

"Q. Has any one been claiming that farm there for the last ten years?

"Mr. R. M. Embry: a object to. that.

"The Court: He has that element in his petition, and I expect maybe I ought to let him prove it. He says he has been in the adverse

and notorious possession for a great many years.

"Mr. R. M. Embry: But under the record title the possession of one tenant in common is the possession of all.

"The Court: That is true. That is true. I will sustain the objection."

No further attempt to show adverse possession was made. The trial court overlooked well-ruled cases which hold that upon a proper showing title may be decreed in one common tenant as against the others. Nickey v. Leader, 235 Mo. loc. cit. 42, 43, 138 S. W. 18; Allen v. Morris, 244 Mo. loc. cit. 362 et seq., 148 S. W. 905, Ann. Cas. 1013D, 1310. This, however, we need not further mention, because it in not here in this record.

II. It is urged by the appellant that the evidence is not sufficient to prove the alleged contract pleaded in the answer. It is said by counsel that proof of "mere disposition to devise or convey as a gift or as a reward for service is insufficient." This we concede to be the law. In Walker v. Bohannan, 243 Mo. loc. cit. 136, 147 S. W. 1029, the writer undertook to outline some of the rules as we gleaned them from the prior case law. In the eighth clause of that outline we said:

"Proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed, made before the acts a performance relied upon were had."

There is some testimony in this case which might be said to fall within the condemnation of this rule. There is evidence of the father having said to witnesses that if Robert stayed with him and his wife and looked, after, cared for, and provided for them, that he intended for Robert to have the farm. But this testimony where it is at all questionable may be cast aside. The answer puts this case in equity. We can deal with it under the rules of equity. The plaintiff, as stated above, introduced no evidence at all. For the defendant, his...