Myers v. Schuchmann

• Decision Date: 31 May 1904
• Citation: 182 Mo. 159,81 S.W. 618
• Parties: MYERS v. SCHUCHMANN et al.
• Court: Missouri Supreme Court

81 S.W. 618

182 Mo. 159

MYERS v. SCHUCHMANN et al.

Supreme Court of Missouri, Division No. 2.

May 31, 1904.

EJECTMENT — TITLE BY ACCRETION — ADVERSE POSSESSION — EVIDENCE — ADMISSIBILITY — SUFFICIENCY — EQUITY — APPEAL AND ERROR.

1. An action of ejectment, in which defendants demand affirmative relief, in the cancellation of a deed under which plaintiff claims, is properly treated as in equity.

2. The finding of the trial court on the evidence in equity cases will be deferred to on appeal, but is not conclusive, and the evidence will be reviewed, and such judgment rendered as the proof warrants.

3. In an action of ejectment, evidence examined, and held insufficient to show title in plaintiff by accretion.

4. Plaintiff in an action of ejectment claimed title to land by deed from the same person that defendants claimed under. Defendants went into possession under a written contract for the interest they claimed in the land prior to the execution of the deed to plaintiff, and, by taking their own and their grantor's possession, they were able to show an actual, continuous, open, notorious, adverse, and hostile possession for more than 10 years before the institution of the action. Held that, under the statute of limitations, defendants' possession made them prima facie absolute owners.

5. Where, in an action of ejectment, plaintiff claimed title by deed from the same person that defendants claimed under by virtue of a written contract executed prior to plaintiff's deed, proof of a statement to plaintiff which, under plaintiff's own testimony, was shown to have been made after the execution of the deed under which he claimed, to the effect that plaintiff's grantor then owned the land in controversy, is entitled to no weight as evidence to show that plaintiff had no notice of defendants' ownership and possession at the time of his purchase.

6. In an action of ejectment, evidence examined, and held sufficient to show that, when plaintiff acquired title by deed from the same person that defendants claimed under by virtue of a written contract executed prior to plaintiff's deed, he was charged with notice of defendants' possession.

Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Action by John Myers against Rudolph Schuchmann and others. From a judgment and decree for defendants, plaintiff appeals. Affirmed.

L. Benecke, F. C. Sasse, and Kinley & Kinley, for appellant. Tyson S. Dines and Perry S. Rader, for respondents.

BURGESS, J.

This is an action of ejectment for the possession of the southeast quarter of section 15 in township 53 of range 20 west, in Carroll county, Mo. The defendant Schuchmann was at the time of the institution of the suit the tenant in possession of his co-tenants, Rader, Dines, and Davis. The three last named answer jointly, and in their answers admit the possession of the land, but deny all other allegations in the petition. The answer then proceeds as follows: "These defendants state that plaintiff claims land in controversy under and by virtue of a deed of Samuel Balch, dated March 23, 1899. The defendants aver that the land in controversy was not intended by the parties thereto to be included in said conveyance, and that, if it was included therein, it was done under a mistake, and without any purpose or intention on the part of the grantor of conveying the same thereby, was wholly without consideration to support the same, and was in fraud of the rights of these defendants, as hereinafter pleaded. Defendants state that long prior, thereto, to wit, in October, 1895, by virtue of a written contract signed and executed by Samuel Balch, John M. Davis, James W. Davis, Perry S. Rader, and Tyson S. Dines, the said Samuel Balch sold to these defendants and to John M. Davis all his right, title, and interest in and to certain undivided interests the land in controversy, as follows: To Perry S. Rader, an undivided one-sixth interest in said land; to James W. Davis, an undivided one-sixth interest in said land; to Tyson S. Dines, an undivided one-sixth interest in said land; to John M. Davis, an undivided one-half interest in said land. These defendants state that the sale to John M. Davis of the undivided one-half interest in said land was a clerical mistake, and that the contract was intended to sell, and in fact the said Samuel Balch did thereby sell, to John M. Davis an undivided one-fourth interest in said land; that, by virtue of the sale of said interests by Samuel Balch by the said contracts, the said Samuel Balch thereby remained the owner of an undivided one-eighth interest in said land, having theretofore sold an undivided one-eighth interest by a prior conveyance to William A. Snell. These defendants state that afterwards, in the year 1896, the said Samuel Balch by verbal contract sold to said Tyson S. Dines his remaining one-eighth interest in said land, and thereupon the said Tyson S. Dines became the owner of an undivided one-eighth interest and an undivided one-sixth interest in said land, or a total of an undivided seven twenty-fourths interest therein; that afterwards, in the year 1896, the said John M. Davis by verbal contract sold to James W. Davis his undivided one-fourth interest in said land. So thereupon the said James W. Davis became the owner of an undivided one-sixth interest and an undivided one-fourth interest in said land, or a total of ten twenty-fourths interest, therein. The defendants state that by virtue of the foregoing sales these three defendants on the 1st day of June, 1896, were the owners of interests in said land as follows: The said James W. Davis, of ten-twenty-fourths interest therein; the said Tyson S. Dines, of seven twenty-fourths therein; the said Perry S. Rader, of four twenty-fourths therein; the remaining three twenty-fourths being owned by W. A. Snell. These defendants further state that upon the said last-named date, in pursuance of the foregoing sales and contracts, they and their co-tenant W. A. Snell went into actual, open, notorious, peaceable, and adverse possession of said tract of land by and with the act and consent of said Samuel Balch, of which fact the plaintiff herein had actual notice and knowledge, and these defendants and their co-tenant W. A. Snell have ever since been and are now in such possession of said land. These defendants further state that, at the time plaintiff received his conveyance from Samuel Balch, he had actual notice and knowledge of such possession by these defendants and their co-tenant W. A. Snell, and that he was then and there informed that these defendants and their co-tenant W. A. Snell were the owners of said land, and in actual possession thereof. Wherefore these defendants pray for a decree of this court declaring said deed from Balch to plaintiff to be void and of no effect as to the land in controversy; that the same be canceled, and that all interest in said land which plaintiff may have received thereby be vested in these defendants in their respective proportionate interests; and that these defendants be decreed to be the owners of respective interests in said land as follows: The said James W. Davis, of ten twenty-fourths interest therein; the said Tyson S. Dines, of seven twenty-fourths interest therein; and the said Perry S. Rader, of four twenty-fourths interest therein — and for such other and further relief as may to the court appear just and equitable."

Plaintiff replied as follows: "Now comes the plaintiff, and, for reply to the defendants' amended answer, denies each and every allegation of new matter therein contained, except that plaintiff has a deed to said land from Samuel Balch, taken in settlement of litigation and other valuable considerations. Further answering, plaintiff states that the contract between Samuel Balch and defendants, which is alleged to have been made, and all other contracts referred to in defendants' answer, if made, were of and concerning real estate, and that such alleged contract was not in writing signed by the parties thereto, and is void, as being within the statute of frauds; and, having fully answered, plaintiff renews his prayer for judgment as asked in his petition."

The court made the following finding of facts, and rendered the following judgment and decree: "Come now the parties in person and by their attorneys, and this cause being submitted to the court upon the pleadings and the evidence adduced, and the same having been duly considered by the court, the court doth find the issues for the defendants, and that they are lawfully entitled to the possession of an undivided seven-eighths interest in the premises hereinafter described, and that the plaintiff is entitled to the possession of the remaining undivided one-eighth interest therein, to which defendants by their pleadings have made a disclaimer. The court doth further find that a certain deed from Samuel Balch to the plaintiff herein, dated March 23, 1899, recorded in the office of the recorder of deeds for Carroll county, Missouri, in Book 138, at page 189, and purporting to convey to plaintiff the interest of said Samuel Balch in and to said land, was taken and received by plaintiff with actual notice and knowledge then and there had by plaintiff that defendants Perry S. Rader, Tyson S. Dines, and James W. Davis were then and there in the actual, open, notorious, peaceable, and adverse possession of said land. Court further finds that said defendants were lawfully in such possession thereof by reason of having previously purchased from said Samuel Balch an undivided seven-eighths interest in said land. Wherefore it is by the court considered and adjudged that plaintiff have and recover an undivided one-eighth interest in and to the real estate described in plaintiff's petition, to wit: The southeast quarter (¼) of section fifteen (15) township fifty-three (53), range twenty (20), in Carroll county, Missouri, as the same would be described if the United...