Nave v. Smith

• Decision Date: 18 June 1888
• Citation: Nave v. Smith, 8 S.W. 796, 95 Mo. 596 (Mo. 1888)
• Parties: Nave v. Smith, Appellant
• Court: Missouri Supreme Court

8 S.W. 796

95 Mo. 596

Nave v. Smith, Appellant

Supreme Court of Missouri

June 18, 1888

Appeal from Livingston Circuit Court. -- Hon. J. M. Davis, Judge.

Affirmed.

C. T Garner, Sr., and J. R. Hamilton for appellant.

(1) The law is well settled that a parol partition of lands by tenants in common, followed by exclusive, notorious, and adverse possession, is valid and binding between the parties and title thus acquired is a legal and valid title. Hazen v. Barnett, 50 Mo. 507; Bonapart v. Roderman, 24 Mo. 401; 43 N.Y. 546; 36 N.Y. 499; 21 Mo. 331; 20 Mo. 81; 25 Mo. 63; 28 Mo. 13, 164; Charpiot v. Sigerson, 63 Mo. 60; 54 Mo. 261; 4 Johns. 202; 7 Johns. 276; 3 Pick. 399; 54 N.Y. 639; 3 Mo.App. 561. (2) Neither Kerr nor Breckenridge could have maintained an action of ejectment against the other for the respective portions of the lands assigned and allotted to the other, or have recovered the same. They occupied the same relative position towards the other, in respect to said lands, they would have occupied had they purchased the lands from each other, paid the purchase price and been put in possession. Douthet v. Stenson, 73 Mo. 200; Baker v. Cude, 60 Mo. 264. (3) The statute of limitations is a valid and legal bar against plaintiff's recovery. The defendant and those under whom he claims have been in the notorious, continuous, and adverse possession of the real estate in controversy under a claim of title for more than ten years prior to the commencement of this suit. 43 Mo. 142; Draper v. Shoat, 25 Mo. 197; Bradley v. West, 60 Mo. 40; 52 Mo. 108; Hughes v Israel, 73 Mo. 547.

Ramey & Brown for respondent.

(1) The presumption of law is that the possession of one tenant in common is the possession of his co-tenants. Lapeyre v. Paul, 47 Mo. 586; Musick v. Barney, 49 Mo. 458; Nave v. Todd, 83 Mo. 601. (2) It is a well-settled rule in this state that the several interest created by a parol partition is a purely equitable one. Hazen v. Barnett, 50 Mo. 506. (3) The attaching creditors and their trustee made their election to stand by the legal title and acquiesce in the rescission of Breckenridge and Kerr, the moment they called upon Nave to pay his share of the taxes, and they re-affirmed such election by buying Breckenridge's title to the whole tract, and again by otherwise recognizing Nave as their co-tenant. (4) The defendants are estopped from setting up any equities Breckenridge might have had under the parol partition. Austin v. Loring, 63 Mo. 19. (5) Defendants ought not to have relief in this case, because they have been guilty of laches so gross as to closely resemble fraud. It was the duty of the attaching creditors of Breckenridge, immediately upon being notified of the rescission of the contract of partition by Kerr, and the claim of Nave thereunder, to repudiate it, and if they do not do so they will be considered to have acquiesced in the rescission. And this result will follow in one or two years. Banks v. Burnam, 61 Mo. 76. "A court of equity does not lend a helping hand but to the prompt and vigilant." State v. West, 68 Mo. 229. (6) There is no evidence upon which the court would be authorized to find that there was a parol partition of these lands. The evidence must rebut the presumption arising from the deeds, and for that purpose must be clear and certain. Johnson v. Quarles, 46 Mo. 423; Underwood v. Underwood, 48 Mo. 527; Story's Eq. Jur., sec. 764.

Black J. Ray, J., absent.

OPINION

Black, J.

The defendant appealed from a judgment in favor of the plaintiff in an action of ejectment for the undivided one-half of eighty-five acres of land in DeKalb county. While this case is, in many respects, like that of Nave v. Todd, 83 Mo. 601, still there is some difference in the evidence, and this case is presented on a somewhat different theory, so that it will be considered on its own facts.

Prior to 1859, Henry C. Kerr and John C. Breckenridge owned two farms in DeKalb county, as tenants in common, and they were also the joint owners of certain personal property. The defendant's evidence shows that, in February of that year, Kerr and Breckenridge divided their personal property, and also made a parol division of the land. The land was surveyed, and Kerr took four hundred and forty acres, being the improved portion of what is called the Canfield farm, and upon which he then and previously resided. Breckenridge took the residue of the Canfield farm and what is called the Breckenridge home-farm, and upon which he resided. Kerr resided upon his portion until 1861, and it was in the possession of his tenant from that date to 1865, or 1866, while he was in the army. Breckenridge, by himself or tenants, occupied his portion until 1868. No deeds were made in 1859, and from the records of the county they appeared to be tenants in common, each owning the undivided half of the two farms. On the fifth of March, 1866, they executed and recorded a partition deed in conformity to the previous parol division.

Previous to this last-named date, and on the nine-teenth of February, 1861, various creditors of Breckenridge attached his interest in both farms. On the twenty-fifth of the same month, Kerr made a mortgage to Nave, the present plaintiff, upon the undivided one-half of the Breckenridge farm to secure his note of that date to Nave for about nineteen hundred dollars, due in sixty days. This mortgage was made with the knowledge and at the request of Breckenridge. This note was given in lieu of one held by Nave against Breckenridge then past due. There is evidence to the effect that Kerr was also bound on the old note. The attaching creditors prosecuted their suits to judgments, and the interest of Breckenridge in both farms was sold thereunder and purchased by Saunders, who took the title in trust for the attaching creditors, the sheriff's deed to him being dated in 1868, the date of the sale. Nave foreclosed his mortgage on the undivided half of the Breckenridge farm, and became the purchaser of that interest at a sale under his judgment in 1865, and this is his title.

There was a subsequent suit between the attaching creditors and Saunders, which resulted in a decree for the sale of all the property purchased by Saunders; and, at a sale under that decree, the defendant in this suit purchased the property in question and other property, and received a sheriff's deed, dated seventh of October, 1875. The evidence shows that Saunders had possession of all of the property from 1868 to 1875, that he acted as the agent for the creditors of Breckenridge and also for Nave. Nave, through Saunders, paid his share of the taxes on the Breckenridge farm for several years. The land was sold for delinquent taxes for 1861, 1863, and 1864, and by Saunders purchased in the names of Nave and King, the latter being one of the attaching creditors. The other facts deemed material will be noticed hereafter.

Defendant's position is, that, by reason of a parol partition between Kerr and Breckenridge, in 1859, the latter acquired the legal, as well as the equitable, title to the land in suit and that this title passed to him. It is certainly the law of this state, that a parol partition between tenants in common, followed by possession, will be sufficient to sever the possession. Bompart v. Roderman, 24 Mo. 385. But in the subsequent case of Hazen v. Barnett, 50 Mo. 506, it was held that, while a parol partition followed by possession was good as between the parties, yet the equitable title only passed, which by adverse possession may ripen into...