Matthews v. Citizens' Bank of Senath

• Decision Date: 06 February 1932
• Docket Number: 29412
• Citation: 46 S.W.2d 161,329 Mo. 556
• Parties: Charles D. Matthews, Jr., Appellant, v. Citizens Bank of Senath (successor to charles e. austin and luther j. austin)
• Court: Missouri Supreme Court

46 S.W.2d 161

329 Mo. 556

Charles D. Matthews, Jr., Appellant,

v.

Citizens Bank of Senath (successor to charles e. austin and luther j. austin)

No. 29412

Supreme Court of Missouri

February 6, 1932

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Judge.

Reversed and remanded (with directions).

Bailey & Bailey and Ward & Reeves for appellant.

(1) The burden is on defendant to prove adverse possession by showing by the preponderance of evidence that defendant, and those under whom it claims, had held possession of the land in controversy for more than ten years prior to the filing of plaintiff's suit, and held such possession with an honest claim of ownership. Gray v. Shelton (Mo.), 282 S.W 53; Ackerman v. Ryder (Mo.), 271 S.W. 743; Fiorella v. Jones (Mo.), 259 S.W. 785; Spicer v Spicer, 249 Mo. 596; Story v. August, 10 S.W.2d 965; Arcadia Timber Co. v. Evans, 31 S.W.2d 988. (2) Mere possession, however long continued, does not create title by limitation, but in order to create such title such possession must be adverse. Spicer v. Spicer, 249 Mo. 596; Crowl v. Crowl, 195 Mo. 338. (3) Evidence of both plaintiff and defendant is that Dodd and Greer and their predecessors in occupancy of the land in controversy thought and said it was Government land and that it was not claimed or owned by any other person. Dodd and Greer did not convey their title to mesne grantor of defendant until 1921. The instant action was begun September 19, 1925. There was no adverse possession prior to 1921. Hunnewell v. Burchett, 152 Mo. 611; Spicer v. Spicer, 249 Mo. 596; Story v. August, 10 S.W.2d 965.

McKay & McKay for respondent.

(1) The action of ejectment is purely and solely a possessory action and is the only action our statute provides for possession of real estate where both the title and right to possession are involved. Hecker v. Bleish, 3 S.W.2d 1009. Title to real estate does not always draw to it the right of possession. Ejectment tries the right of possession and may not always try the title. Evans v. Kunze, 128 Mo. 670. In an action of ejectment the right of possession is settled by the record title, or by the Statute of Limitations. Akins v. Adams, 256 Mo. 13. Ejectment can be maintained only against the claimant in possession. Laclede Co. v. Epwright, 265 Mo. 210. A petition alleging the plaintiff to be entitled to the premises is fatally defective; it must state that he is entitled to the possession. Jamison v. Smith, 4 Mo. 202. The statutory action of ejectment is the form of action provided by law for the recovery of possession of real estate in all cases where the plaintiff is legally entitled to the possession thereof, against any person not having a better title thereto. Therefore, the bringing of an action in ejectment and the prosecution of the same to final judgment will toll the Statute of Limitations from the date of the commencement of the action and during the life of the judgment, and it is not necessary to issue Writ of Restitution and put the party in possession in order to toll the statute. Dunn v. Miller, 92 Mo. 324; Estes v. Nell, 140 Mo. 639; Sanford v. Herrin & Uhri, 161 Mo. 176; Rodgers v. Johnson, 259 Mo. 173. Ejectment being the only possessory action known to the law, the bringing of such an action and prosecuting the same to final judgment will toll the statute at least so long as the judgment is alive, but the bringing of an action to determine title under Section 1650 even though possession is asked for under the pleadings, unless the pleadings contain such facts as will state at least a defective cause of action for ejectment, the action does not toll the running of the Statute of Limitations. Koehler v. Roland, 275 Mo. 573. (2) The evidence in this cause shows that appellant was neither seized nor possessed of the land in controversy from 1914 to 1925 and, therefore, was neither seized nor possessed of the land within ten years. Sec. 850, R. S. 1929. Where there is no adverse possession the title draws to it the possession, but there can be but one actual seizen, and this necessarily includes possession; hence, an actual possession hostile to the true owner works a disseizen. Seymore v. Curli, 31 Minn. 81, 16 N.W. 495. The right to sue for land under this section is barred in ten years, except as to disabilities. Dellatre v. Edmonds, 200 Mo. 246. Sec. 850, R. S. 1929, has no saving clause and all actions are barred if not brought within ten years from the date of accrual. DeHatre v. Edmonds, 200 Mo. 246. The Statute of Limitations is to be strictly construed, and bars an action in ejectment after ten years even though a suit in equity has been defeated within ten years. Tower v. Compton Hill Imp. Co., 192 Mo. 379. (3) The plaintiff in the original cause to determine title had the choice of three remedies: (a) Sue by ejectment and obtain a judgment which would bar the running of the limitation statute from the date of the filing of the suit; or (b) sue under the statute to determine title and if successful sue in ejectment, or (c) sue by both actions in the same petition, but in different counts. Having elected to sue to determine title without joining a count in ejectment he is bound by his election, and is barred by the ten-year Statute of Limitations. Tower v. Implement Co., 192 Mo. 379; Bensick v. Cook, 110 Mo. 182; Lilly v. Menke, 43 Mo. 146.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

Ejectment for forty acres of land in Dunklin County. The case was tried in Pemiscot County on change of venue resulting in a judgment for defendant, and comes to this court by appeal. The petition was filed September 19, 1925, and the trial had at the March Term, 1928, of the trial court.

The petition is conventional in form, against Charles E. and Luther J. Austin, but before the trial the Citizens Bank of Senath became the owner of the land in dispute and was by consent substituted as defendant.

The answer admits defendant's possession and denies the other allegations as to plaintiff's ownership and right to possession. The answer then sets up as an affirmative defense the ten-year Statute of Limitations relating to real estate, claiming that defendant and those under whom it claims title have been in the open, continuous and adverse possession of the land for more than ten years next before the bringing of this action in ejectment, claiming a fee simple title, and that during said time plaintiff has not been in possession of said land or maintained any action for possession thereof.

In order to prove his title to this land, the plaintiff put in evidence the pleadings, proceedings and judgment in a suit to determine and quiet title to the same land brought by this plaintiff, Matthews, against John W. Greer, from whom defendant has acquired its title and possession. That suit was one to try and determine title under our statute, Section 1520, Revised Statutes 1929, was commenced in June, 1918, in the Circuit Court of Dunklin County, was transferred on change of venue to Mississippi County and there tried about 1920 or 1921, resulting in a judgment for defendant. On plaintiff's appeal to this court the judgment therein was reversed and the cause remanded. [Matthews v. Greer, 260 S.W. 53.] This judgment was rendered in this court on March 7, 1924. When the case again reached the circuit court, Charles E. and Luther J. Austin had become the owners of Greer's claimed title and were substituted as parties defendant and the case was retried in Mississippi County and judgment entered for plaintiff on October 24, 1924. Defendants again appealed to this court and the judgment of the circuit court was affirmed here July 30, 1927. [Matthews v. Austin, 317 Mo. 1021, 297 S.W. 366.]

At that time the present action in ejectment between the same parties and for the same land was pending in the circuit court. As stated, this plaintiff having finally won in his suit to determine title by the judgment of this court on July 30, 1927, the present case in ejectment for the same land was tried at the March Term, 1928, when defendant won the same land on its plea of adverse possession for ten years. The ten-year period was from 1915 to 1925 and covers the entire time of the pendency of the suit to quiet and determine title commenced in June, 1918, and finally terminated by the judgment of this court on July 30, 1927, which judgment affirmed the judgment of the Circuit Court of Mississippi County of October 24, 1924, awarding title to plaintiff. The period of adverse possession for ten years on which defendant won the present case in the trial court commenced some two years before the suit to determine title was brought and ended some four years after the judgment of the circuit court awarding the title to plaintiff, and a little more than a year after the affirmance of that judgment by this court.

The record and brief in this case are devoted largely to the question of defendant's adverse title under the Statute of Limitations. Much evidence was introduced as to the commencement of the possession of defendant and those under whom it claims and the nature and extent of such possession. This question was submitted to the jury on instructions which are not criticised and the jury found for defendant. It will be sufficient to say here that defendant claims, and the evidence shows, that one John Small took actual possession of this forty-acre tract of timbered swamp land in 1911 or 1912, though his possession was not either extensive or substantial. In 1912 Small sold out to John W Greer and one Dodd and made them a quitclaim deed sufficient to constitute color of title. Dodd and Greer divided the land in 1916, making quitclaim deeds to each other for half thereof, and Dodd soon sold to Greer by his...