McMurtry v. Fairley

• Decision Date: 06 March 1906
• Citation: 91 S.W. 902,194 Mo. 502
• Parties: McMURTRY v. FAIRLEY et al.
• Court: Missouri Supreme Court

91 S.W. 902

194 Mo. 502

McMURTRY v. FAIRLEY et al.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. APPEAL—ABSTRACT—REQUISITES— FAILURE TO COMPLY WITH COURT RULES—EFFECT.

Appellant's abstract contained no index, and did not set out the evidence of a witness in narrative form, but by questions and answers, and the testimony of one witness was omitted. It set forth so much of the record as was necessary to an understanding of the questions presented. The record was short, and with the aid of appellant's statement and the index to the record there was no difficulty in understanding the issues. Held, that the failure to comply with Supreme Court rules 12, 13 (73 S. W. vi), did not warrant the dismissal of the appeal.

2. INFANTS—PARTITION—GUARDIAN AD LITEM —NECESSITY—FAILURE TO APPOINT.

Where an infant defendant in partition was not properly served with process, the court was, under the express provisions of Gen. St. 1865, p. 652, c. 162, § 8, in force at the time, without authority to appoint a guardian ad litem for the infant, and the act of the guardian appointed did not bind the infant, and the judgment as to him was void.

3. LIMITATION OF ACTIONS — ACCRUAL OF RIGHT OF ACTION — POSSESSION OF REAL ESTATE.

A testator devised his real estate to his widow for life, with remainder over to his children equally. The widow remarried, and her husband purchased the interest of some of the children. Thereafter they brought partition against the remaining heirs, one of whom, an infant, was not properly served with process, rendering the judgment as to him void. The second husband bought the land at the partition sale. Held, that limitations did not begin to run against the infant to determine his rights in the premises until after the death of the widow; she and those claiming under her being entitled to the exclusive possession for her life.

Appeal from Circuit Court, Washington County; Frank R. Dearing, Judge.

Action by George W. McMurtry against Henry Fairley and another. From a judgment for defendants, plaintiff appeals. Reversed.

Merrifield W. Huff, for appellant. Dinning. Hamel & Dinning, for respondents.

BURGESS, P. J.

The purpose of this suit is to have ascertained and determined the estate, title, and interest of the plaintiff and defendants herein, respectively, in and to 100 acres of land in Washington county, being the southwest corner of a tract of land confirmed to Joseph McMurtry in the United States Survey No. 2,122, in township 35, range 1, east of the fifth principal meridian, and known as the "John McMurtry Tract," of which plaintiff alleges he is the owner in fee of an individed ninth interest, and that the defendants are the owners of the other undivided eight-ninths, but that defendants refuse to recognize plaintiff as a joint owner of said premises. Defendants, in their answer to plaintiff's petition, deny that plaintiff is the owner in fee of any interest whatever in said land, and allege that they are the owners in fee of the entire tract, and admit that they refuse to recognize plaintiff as a joint tenant of said premises. The answer concludes with a prayer that the court ascertain and determine the estate, title, and interest of the parties to this suit, respectively, in and to the real estate in question, and to adjudge by its decree that the title to said real estate is in defendants. The trial resulted in a judgment for defendants, from which plaintiff appeals.

Plaintiff testified in his own behalf substantially as follows: "Q. You are the plaintiff in this cause? A. Yes, sir. Q. When did your father die? A. In 1855. Q. How old were you? A. I was 18 months old. Q. How many children did he leave? A. Eleven; one child born after his death. Q. How many of them died before they came of age? A. I do not know. Q. He left yourself and 10 other children? A. Yes, sir. Q. Any of them die unmarried? A. Yes, sir; three of them. Q. When did your mother die? A. Eight years ago the 21st day of last December. Q. You know this property sued for? A. Yes, sir; I was raised on it. Q. How long did you live on that property? A. I lived there until I was 19 years old. Q. Was your mother living there at that time? A. Yes, sir." His cross-examination was as follows: "Q. Where do you live? A. St. Louis, Mo. Q. What day were you born? A. September 25, 1853. Q. Then you are now 49 years old? A. Yes, sir; 48½. Q. What was the date of your majority? A. 1874. Q. You have never received anything off that land or been treated as a co-tenant? A. No, sir. Q. Who has been in actual possession? A. H. S. Barger; all the time after he purchased at partition sale until my mother and he sold to Jas. F. Bennett. Q. He sold it more than 20 years ago? A. Yes, sir. Q. Bennett took possession after he bought it? A. Yes, sir. Q. Your mother joined in deed to Bennett? A. Yes, sir. Q. Mr. Bennett took charge and occupied it how long? A. 12 or 15 years. Q. Where were you living all that time? A. Part of the time in Iron county. Q. This is first suit you ever brought for your supposed rights? A. Yes, sir. Q. Have you been there lately? A. Last summer. Q. You knew Bennett was there during all these years? A. Yes, sir. Q. You knew he was claiming it all? A. I don't know. I know I was claiming one-eighth of it. Q. You laid by and didn't call for it? A. Yes, sir. Q. You have never been in possession of the premises? A. No, sir. Q. Never paid any taxes? A. To be sure I haven't." The will of John McMurtry was offered in evidence. By this will, which was duly probated and recorded in Washington county, the testator left the above real estate to his wife for her natural life, and provided that at her death the same should descend to and vest in her and her children, share and share alike. Plaintiff then offered in evidence the record of a partition suit of H. S. Barger and Lucinda Barger v. James Kirkpatrick and others. This suit was begun in 1865. The petition in this cause alleged that plaintiffs and defendants were owners in common of property described in the present petition, that Lucinda McMurtry owns life estate in same, and that plaintiffs own five-ninths of same and defendants own each one-ninth. Plaintiff was made defendant. In this cause summons were issued. The return as to the plaintiff was as follows: "Served the within summons on within named * * * and George W. McMurtry by reading same in their presence and hearing. Done in the county of Washington and state of Missouri on the 20th day of April, 1865. James C. Libley, Sheriff." A guardian ad litem was appointed for George W. McMurtry, judgment was rendered, and the land sold for $150 to plaintiff, H. S. Barger.

It was admitted that H. S. Barger married appellant's mother, and that Lucinda Barger and Lucinda McMurtry are one and the same person. Defendant offered in evidence deed from H. S. Barger and wife to James F. Bennett, dated February 23, 1883. Recorded in Book 29, p. ____, conveying land in dispute; deed from James F. Bennett to F. T. Grisham, dated December 10, 1896, recorded in Book 41, p. 9, conveying same land; deed from F. C. Grisham and wife to defendants, dated August 15, 1900, recorded in Book 44, p. 320, conveying the same lands. Defendants then proved that some one of above parties had been in exclusive possession of the property since the death of plaintiff's father. At the end of the case the plaintiff asked the court to declare the law applicable to this case as follows: "The court declares as a matter of law that the plaintiff in this cause was entitled to bring his action any time within 10 years after the death of his mother, to whom the property was left by the will of plaintiff's father, and the court further declares that such time within which suit might be brought was not shortened by the suit in partition by which the mother's life estate was conveyed to H. S. Barger." This instruction was refused, to which action of the court plaintiff saved his exception and the court rendered its decree, vesting the title to the whole tract in the respondents, holding that at the time his suit was brought the appellant had no right, title, interest, or estate in the said real estate or any part of it, and enjoined appellant, from asserting any right, title, interest, or claim therein and adjudged the costs against appellant. To this decree appellant excepted, and on same day filed his motion for a new trial on the ground that the court refused his instruction; that the judgment was against the evidence; that it was against the law; that the judgment should have been for the plaintiff; and that the evidence showed that the plaintiff was entitled to one-ninth of the property sued for. This motion was overruled, and exception duly saved. The case is before us on plaintiff's appeal.

Defendants insist that this appeal ought to be dismissed because that the plaintiff has failed to comply with rules 12 and 13 of this court, in that he has not filed an abstract, printed in fair type, with a complete index at the end thereof, setting forth so much of the record as is necessary to a full and complete understanding of the questions presented to this court for decision. The case is brought to this court by a complete transcript, and when such is the case rule 12 of this court (73 S. W. vi) provides that "the appellant shall make out and deliver to the respondent a copy of his abstract at least thirty days before the cause is set for hearing, and shall in like time file ten copies thereof with the clerk of this court." Rule 13 provides that "the abstract mentioned in rules 11 and 12 shall be printed in...