Mizell v. Osmon

• Decision Date: 04 September 1945
• Docket Number: 39376
• Parties: Willard Mizell, Ray Mizell, Nola Mae Mizell, Howard Wilkins, Will Wilkins, Wilson Wilkins, all adults, and James Thomas Mizell, Neil Winford Mizell, Boyd Wilkins, minors, acting by and through their duly appointed Guardian and Curator, L. Edmonston, Appellants, v. J. M. Osmon
• Court: Missouri Supreme Court

189 S.W.2d 306

354 Mo. 321

Willard Mizell, Ray Mizell, Nola Mae Mizell, Howard Wilkins, Will Wilkins, Wilson Wilkins, all adults, and James Thomas Mizell, Neil Winford Mizell, Boyd Wilkins, minors, acting by and through their duly appointed Guardian and Curator, L. Edmonston, Appellants, v. J. M. Osmon

No. 39376

Supreme Court of Missouri

September 4, 1945

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Reversed and remanded (with directions).

Elbert L. Ford and Langdon R. Jones for appellants.

(1) Respondent's answer converted the cause into a suit in equity. Dinkelman v. Hovekamp, 80 S.W.2d 681, 366 Mo. 567; Kochler v. Rowland, 205 S.W. 217, 275 Mo 573. (2) There is no merit in the contention that the will of Mary Jane Herman was not effectual to pass title, because not recorded in the recorder's office. Nichols v Hobbs, 197 S.W. 258. (3) The deed dated January 25 1896, from Mary Jane Herman to the four Mizell boys recorded in Deed Record 24 at Page 162, is absolutely void and did not pass any title to the 50 acres of land therein described. The deed is testamentary in character and not executed in accordance with the law applicable to wills; and is also so vague, uncertain and indefinite as to be insufficient to pass any interest or estate in the 50 acres of land therein described. Goodale v. Evans, 263 Mo. l.c. 229, 172 S.W. 370; Thorp v. Daniel, 99 S.W.2d 42, 339 Mo. 763. (4) The will of Mary Jane Herman vests an undivided 1/7th interest each for a life in Anna Johnson, Joe Wilkins, Louis C. Wilkins, William A. Mizell, Samuel Mizell, Walter Mizell and Thomas Mizell, with the remainder in fee upon the death of each life tenant to the heirs of the body of such life tenant. Secs. 563, 3498, 3500, R.S. 1939; Secs. 4592, 4594, 4645, R.S. 1899; Secs. 578, 2872, 2874, R.S. 1909; Nichols v. Hobbs, 197 S.W. 258; Schee v. Boone, 243 S.W. 885, 295 Mo. 212; Hyde v. Hopkins, 296 S.W. 382, 317 Mo. 587; Clarkson v. Clarkson, 125 Mo. 381, 28 S.W. 446; Miller v. Ensinger, 182 Mo. 195, 81 S.W. 422; Wiggins v. Perry, 271 S.W. 815; Kennard v. Wiggins, 160 S.W.2d 706, 349 Mo. 283; Lewis v. Lewis, 136 S.W.2d 66, 345 Mo. 816. (5) The court erred in finding for respondent on the theory of parol gifts. Respondent did not plead parol gift. Such finding was beyond the issues made by the pleadings. Bramer v. Klaber, 49 S.W.2d 169, 330 Mo. 306; Barlow v. Scott, 85 S.W.2d 504; Schell v. Coal & Grain Co., 79 S.W.2d 543; Anderson v. Scott, 94 Mo. 637, 8 S.W. 235. (6) Such finding was squarely inconsistent with answer of respondent as to the south 50 acres. (7) Testimony of C. B. Anderson that Ann Wilkins told him her mother gave the north 50 acres to her and her boys was clearly incompetent. Swope v. Ward, 185 Mo. 316, 84 S.W. 895; 28 C.J., sec. 80, p. 676. (8) But such testimony, even if competent, is no proof of a parol gift in lifetime of Mary Jane Herman. It is more reasonable that reference to a gift by the will was referred to; especially since Ann Wilkins probated the will. (9) Parol gifts of real estate are required to be proved by evidence that is clear, cogent and convincing, and which leaves no reasonable doubt. This is especially true where the alleged gift is not asserted until after the death of the donor. Anderson's testimony was all relative to a gift, and was insufficient to establish a parol gift to the North 50 acres, even if parol gift had been pleaded by respondent. Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Russell v. Sharp, 192 Mo. 270, 91 S.W. 134; Little v. Mettee, 93 S.W.2d 1000, 338 Mo. 1234; Johnson v. Quarles, 46 Mo. 423; Fanning v. Doan, 139 Mo. 392, 41 S.W. 742; Anderson v. Scott, 94 Mo. l.c. 644; 38 C.J.S., sec. 67 (a) 896, (b) 878-881 (f) 889; Stein v. Bank & Trust Co., 148 S.W.2d l.c. 572, 347 Mo. 732; In re Franz Estate, 127 S.W.2d l.c. 404, 344 Mo. 510; Morley v. Prendiville, 295 S.W. l.c. 567, 316 Mo. 1094; Cremer v. May, 8 S.W.2d l.c. 115, 223 Mo.App. 57. (10) As to appellant remaindermen, the statute of limitations did not start to run until the death of the life tenant. Carr v. Barr, 243 S.W. l.c. 103, 294 Mo. 673; Sonders v. Kitchens, 124 S.W.2d l.c. 1140, 344 Mo. 18; Hauser v. Murray, 256 Mo. l.c. 85, 165 S.W. 376. (11) The burden of proof on the issue of the statute of limitations is upon respondent. Under this rule of law, defendant was required to show that the possession of the Mizells to the south 50 acres, and the possession of Ann Wilkins, Joe Wilkins and Louis Wilkins to the north 50 acres, was adverse and hostile to the mother and grandmother, and that it became so in her lifetime. This respondent failed to do. Hunnewell v. Burchett, 152 Mo. 611, 54 S.W. 487; Badger Lbr. Co. v. Railway Co., 89 S.W.2d 954, 338 Mo. 349; Also cases cited under Sec. 1002, R.S. 1939. (12) Under the facts of this case the rule as to disseisin by one tenant in common of his co-tenants should be applicable. Under this rule verbal assertion or declaration of ownership, even if made, can be of no avail to establish adverse possession unless brought to the knowledge of the other co-tenants. Warfield v. Lindell, 30 Mo. 272; Long v. McDow, 87 Mo. 197; Campbell v. Laclede Gas Co., 84 Mo. 375. (13) Possession of the land by the Mizells and Wilkins, even without payment of rent, does not authorize inference of a gift or adverse possession. Such possession is entirely consistent with a mere license to occupy the land, rent free. Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Warfield v. Lindell, 30 Mo. l.c. 287. (14) Testatrix did not die intestate as to the 1/7th interest devised to Walter Mizell for life, the remainder having failed for lack of issue. Under proper construction of the will this 1/7th interest is divided equally between seven of the appellants and respondent. Hyde v. Hopkins, 296 S.W. 382, 317 Mo. 587. (15) Since respondent in his cross-action prayed for affirmative relief for improvements made; and since respondent offered evidence and requested allowance for taxes paid; then and in that event, as an offset against the taxes paid and improvements made, appellants were entitled to their proportionate part of the rents for the years involved. Byrne v. Byrne, 289 Mo. 109, 233 S.W. 461.

Hal H. McHaney for respondent.

(1) The last will and testament of Mary Jane Herman was not recorded as required by Sec. 549, R.S. 1939. The remainder under said will are the bodily heirs of defendant's grantors and should be and are estopped to assert any rights under said will by reason of the Missouri statute requiring the recordation of wills. Sec. 549, R.S. 1939; Simms v Thompson, 291 Mo. 439, 236 S.W. 876; Nichols v. Hobbs, 197 S.W. 258; Hellman Commercial Trust & Savs. Co. v. Looney, 271 Mo. 545, 197 S.W. 144; Keaton v. Jorndt, 250 Mo. 169, 168 S.W. 734; Wolf v. Brown, 142 Mo. 612, 44 S.W. 733; Rodney v. Landeau, 104 Mo. 251, 15 S.W. 962; 66 C.J., sec. 967, p. 1141; Patton on Titles, 1928 Ed., sec. 13, p. 53. (2) It is axiomatic that the intention of the grantor as expressed in the deed as a whole is controlling upon the courts in determining whether or not said deed is testamentary in character, and if parts of the deed are repugnant to the clear intention of grantor, they should be rejected. McAllister v. Pritchard, 287 Mo. 494, 230 S.W. 66; Sims v. Brown, 252 Mo. 58, 158 S.W. 624; Rutherford v. Tracy, 48 Mo. 325; Gibson v. Bogy, 28 Mo. 478. (3) In construing the special clause contained in the deed of Mary Jane Herman, namely: "The said lands to remain in my possession and this deed only to be void and in force at my death," it is impossible to give effect to certain words contained in such clause of the deed. Such inconsistent, repugnant and meaningless words in this clause are: "and this deed only to be void and in force at my death." By eliminating the clause referred to, meaning is given to the deed and it becomes intelligible. By eliminating those words, the clause then reads: "The said lands to remain in my possession." It is perfectly proper for the court to eliminate from its consideration such ambiguous, repugnant and meaningless words. 26 C.J.S., sec. 90 (c), p. 337; Gibson v. Bogy, 28 Mo. 478. (4) By all of the terms of the deed of Mary Jane Herman except the special meaningless clause contained therein above referred to, the grantor conveys a present interest, i.e., the fee simple title in the property in question to the grantees, but reserves the right of possession for her life. It is the duty of the court to construe such clause so that it will be harmonious with other parts of the deed and to give effect to the intention of the grantor, otherwise expressed in the deed, if possible. Thorp v. Daniel, 99 S.W.2d 42; Dawson v. Taylor, 214 S.W. 852; McAllister v. Pritchard, 287 Mo. 494, 230 S.W. 66; O'Day v. Meadows, 194 Mo. 588, 92 S.W. l.c. 645; Wimpey v. Ledford, 177 S.W. 302; Christ v. Kuehne, 172 Mo. 118, 72 S.W. 537; Wimpey v. Lawrence, 208 S.W. 54; Priest v. McFarland, 262 Mo. l.c. 238, 171 S.W. 62; Dozier v. Toalson, 180 Mo. 546, 79 S.W. 420; Murphy v. Gabbert, 166 Mo. 596, 66 S.W. 536. (5) If there is a doubt as to the true meaning of the grantor, the deed should be construed in favor of the grantees rather than the grantor. Hobbs v. Yeager, 263 S.W. 225; Bray v. Conrad, 101 Mo. 331. (6) If the statute of limitations started in the lifetime of Mary Jane Herman it did not stop running at her death even though the parties in adverse possession were made life tenants under the provisions of the Last Will and Testament of Mary Jane Herman. The general rule is that once a statute of limitations starts running it never stops. Hubbard v. Swofford Bros. Dry Goods Co., 209 Mo. 494, 108 S.W. 15; Jones v. Thomas, 124 Mo. 586, 28 S.W. 76; Coshow v. Otey, 222 S.W. 804. (7) The facts and circumstances in the case at bar...