Mann v. Mann

• Decision Date: 13 November 1944
• Docket Number: 39074
• Citation: 183 S.W.2d 557,353 Mo. 619
• Parties: Benjamin F. Mann et al. v. Hattie A. Mann et al., Appellants
• Court: Missouri Supreme Court

183 S.W.2d 557

353 Mo. 619

Benjamin F. Mann et al. v. Hattie A. Mann et al., Appellants

No. 39074

Supreme Court of Missouri

November 13, 1944

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Reversed and remanded (with directions).

W S. Gabriel, Arthur B. Taylor and Walter A Raymond for appellants.

The evidence and favorable inferences viewed in a light favorable to defendants made a submissible case on the issue of title in defendants by adverse possession. The trial court erred in sustaining plaintiffs' motion for a new trial on the ground defendants made no submissible case on that issue and the demurrers to the evidence should have been sustained. The cause, therefore, should be reversed with directions to the trial court to reinstate the verdict and enter final judgment thereon for defendants. Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Bass v. Kansas City Journal Post, 347 Mo. 681, 148 S.W.2d 548; 4 Houts, Missouri Pleading and Practice, p. 399, sec. 1185; Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339; Misenheimer v. Amos, 221 Mo. 362, 120 S.W. 602; Allen v. Morris, 244 Mo. 357, 148 S.W. 905; Rusk v. West, 290 Mo. 433, 235 S.W. 1010; Tillman v. Hutcherson, 348 Mo. 473, 154 S.W.2d 104.

John F. Thice, Reginald A. Smith and Mosman, Rogers, Bell & Conrad for respondents.

(1) Defendants wholly failed to sustain their plea and claim of title by adverse possession as between cotenants. The demurrers should have been given and trial court ruled properly in sustaining plaintiffs' motion for new trial. Nickey v. Leader, 138 S.W. 18; Spence v. Spence, 238 Mo. 71, 141 S.W. 898; Zimmerman v. First Natl. Bank of Brunswick, 201 S.W. 852; Warfield v. Lindell, 30 Mo. 272; Coberly v. Coberly, 189 Mo. 1, 87 S.W. 957; Hendricks v. Musgrove, 183 Mo. 300, 81 S.W. 1265; Burnside v. Doolittle, 24 S.W.2d 1011; Hynds v. Hynds, 202 S.W. 387; Lapeyre v. Paul, 47 Mo. 586; Golden v. Tyer, 180 Mo. 196, 79 S.W. 143; Garrison v. Taff, 197 S.W. 271. (2) Instruction F is erroneous because it is not supported by the evidence and is calculated to confuse and mislead the jury. 1 Raymond, Missouri Instructions, sec. 92; Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Wells v. Raber, 166 S.W.2d 1073; Carlisle v. Tilghmon, 159 S.W.2d 663. (3) Instruction C is prejudicially erroneous because it omits a vital and essential element of defendants' case. Burnside v. Doolittle, 24 S.W.2d 1011.

OPINION

Tipton, J.

This action was filed in the circuit court of Jackson County at Independence, Missouri, to partition four tracts of land situated in Jackson County. At the trial there was a stipulation that the first three tracts of land were subject to partition, but the appellants contended they and their predecessor, Orange L. Mann, had acquired title to the west thirteen and a fraction acres of tract four by adverse possession. The jury sustained the appellants' contention. Respondents' motion for a new trial was sustained on the ground that the court erred in refusing respondents' requests for a directed verdict in the nature of a demurrer to appellants' evidence on the issue of adverse possession.

The common source of title to tract four was Benjamin F. Mann, Senior. He died intestate on October 17, 1913. His only heirs at law were his six children, whose names were as follows: Agatha J. Stewart, Orange L. Mann, Richard Lee Mann, Benjamin F. Mann, Jr., Minnie Mann Long, and Rosa Bokamper.

Tract four is a body of Missouri River bottom land containing thirty-seven and one-half acres. There are no improvements on any part of the land and no fences, either around it or across it.

In ruling on the respondents' motions for a directed verdict on appellants' contention that they had title to the thirteen and a fraction acres by adverse possession, the appellants are entitled to have the most favorable evidence taken as true, and, also, the most favorable inference that can be drawn therefrom. Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548.

From the evidence most favorable, we find that almost immediately after the death of Benjamin F. Mann, Sr., Orange L. Mann went into possession of the west six and a fraction acres of this tract of land; Agatha J. Stewart went into possession of the six and a fraction acres next east; Benjamin F. Mann, Jr., went into possession of the six and a fraction acres next east; Richard Lee Mann went into possession of the six and a fraction acres next east; and Rosa Bokamper went into possession of the east six and a fraction acres. On February 10, 1920, Orange L. Mann purchased the interest of Agatha J. Stewart, and from that time had possession of the west twelve and a fraction acres of this tract of land. Rosa Bokamper died in 1922, leaving to each of her brothers and sisters one-fifth of her part of this tract of land or an acre and a fraction. Before Rosa Bokamper's death, the east boundary of Orange L. Mann's twelve and a fraction acres was about a rod west of a large tree on the north line. After her death in 1922, it was agreed by the other heirs, or at least a part of them, that Orange L. Mann could have his acre and a fraction added to the east side, so from that time the big tree on the north line became the east line of his land. Minnie Mann Long conveyed all her individual interest in this land to Richard L. Mann, on June 6, 1918. Orange L. Mann died intestate in 1939, leaving as his heirs these appellants, Hattie Mann, his widow, and Nellie Elizabeth Hartnett, his daughter.

Appellants contend that the division of the land as described above was done by agreement of the heirs of Benjamin F. Mann, Sr., in March, 1922, after the death of Rosa Bokamper. Respondents contend that the above division was not to divide the legal title to this tract of land, but the division was for farming purposes only.

"The general rule of law is that the possession of one tenant in common is the possession of all the tenants in common; the possession being said to be 'pour me et pour tout,' [Long v. McDow, 87 Mo. l.c. 203.] In order for one tenant in common to acquire title by limitation against another tenant in common, he must do some act towards his cotenant that will amount to a disseizin or a repudiation or denial of the rights of his cotenant and such as will show an intention to hold adversely to his cotenant and such act must be totally irreconcilable with a recognition of the rights of his cotenant. [Long v. McDow, supra, and cas. cit.] It is not essential, however, that it be shown that such acts were brought to the notice of the cotenant." Hendricks v. Musgrove, 183 Mo. 300, l.c. 309, 81 S.W. 1265. "The rule as to the nature and character of possession, so as to operate as a bar against one tenant in common and in favor of another, is much more stringent than where such relation does not exist." Golden v. Tyer, 180 Mo. 196, l.c. 202, 79 S.W. 143. See, also, Warfield v. Lindell, 30 Mo. 272; Coberly v. Coberly, 189 Mo. 1, 87 S.W. 957; Hynds v. Hynds, 274 Mo. 123, 202 S.W. 387; Spence v. Spence, 238 Mo. 71, 141 S.W. 898; Misenheimer v. Amos, 221 Mo. 362, 120 S.W. 602; Rusk v. West, 290 Mo. 433, 235 S.W. 1010; Saucier v. Kremer, 297 Mo. 461, 249 S.W. 640; Allen v. Morris, 244 Mo. 357, 148 S.W. 905; Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339.

The kind and type of possession that Orange L. Mann had in this thirteen and a fraction acres are shown by the following facts: Part of the time this tract was in alfalfa when the remainder of the tract was in other crops. When all of the thirty-seven and a half acres were in alfalfa, Orange L. Mann's thirteen and a fraction acres were cut separately and sold separately. Orange L. Mann kept the proceeds of the crop from his tract and made no accounting to the other heirs of Benjamin F. Mann, Sr., and neither did these heirs account to him, or his heirs after his death, for the proceeds from crops raised on the remainder of this tract of land. When the floods destroyed part of appellants' alfalfa, respondents did not share the loss. A pipe line was laid across this land and Orange L. Mann was paid eight dollars, while the pipe-line company paid fifty or sixty dollars for laying this pipe line across this tract four, and he was told by one of the respondents that the reason that he was not paid more was because the pipe line only went across a corner of his land. Some years this land was rented by his brothers, and Orange was paid ten dollars an acre for this thirteen and a fraction acres. When Highway 71 was built about twelve years before the trial of this case in the circuit court, a rock road across a corner of this land claimed by appellants was abandoned. Orange L. Mann hired and paid to have this abandoned right-of-way cleared up so that it could be cultivated. There was testimony that in the neighborhood this west tract was known as Orange L. Mann's land.

These facts show that Orange L. Mann, and later his heirs, held possession as sole owner of this tract of thirteen and a fraction acres. It was generally known in the neighborhood as his land. What was known to his neighbors, should have been known to these respondents. His claim of ownership was open and notorious; at least, we are of the opinion that a jury could reasonably draw such a conclusion from these facts.

Moreover, these respondents knew that Orange L. Mann, and later his heirs, claimed this land as his own and not as a cotenant with them. Respondent Benjamin F. Mann, Jr., testified as follows:

"Q. When was the...