Osborn v. Weldon

• Decision Date: 06 July 1898
• Citation: 146 Mo. 185,47 S.W. 936
• Court: Missouri Supreme Court
• Parties: OSBORN et al. v. WELDON et al.<SMALL><SUP>1</SUP></SMALL>

47 S.W. 936

146 Mo. 185

OSBORN et al. v. WELDON et al.¹

Supreme Court of Missouri, Division No. 2.

July 6, 1898.

DOWER — ADVERSE POSSESSION — EJECTMENT — EVIDENCE — LOST RECORDS — PRESUMPTIONS — DEEDS.

1. Where land is in the possession of one holding under a widow's dower right therein, which has never been set off to her, limitations do not run in favor of the occupant as against the owner until dower is assigned or the widow dies.

2. A judgment awarding dower, rendered in 1852, recited that, as the widow had become the purchaser of the real estate since her husband's death, no commissioners were required to admeasure her dower. Defendants' evidence tended to show that she had bought the land at an administrator's sale to pay debts prior to the rendering of said judgment. However, all the papers of the probate court were destroyed by fire in 1890, and the original grantee of the widow and the administrator are both dead. Held, that it will be presumed that the wife received a deed from the administrator at the time of her purchase.

3. A deed will be construed to convey whatever interest or estate the grantor may have in the land, unless it shows his intention to convey a less estate.

Appeal from circuit court, Daviess county; E. J. Broaddus, Judge.

Ejectment by Elijah Osborn and others against James H. Weldon and others. From a judgment for plaintiffs against defendant James H. Weldon, but in favor of the other defendants, James H. Weldon appeals. Reversed.

This is an action of ejectment for the possession of a tract of and in Daviess county, Mo. Both parties claim title under Joseph Osborn, deceased; the plaintiffs as his only heirs at law, and the defendants by mesne conveyances. Defendants also rely upon the statute of limitations. The case was tried to the court, a jury being waived. The issues were found for plaintiffs as against defendant James H. Weldon, and for the other defendants, and judgment rendered accordingly. Defendant James H. Weldon appealed.

Alexander & Richardson and Gillihan & Brosins, for appellant. W. D. Hamilton and Boyd Dudley, for respondents.

BURGESS, J.

Joseph Osborn died in June, 1850, the owner in fee of the land involved in this litigation, upon which his wife, Mary Osborn, and children, the plaintiffs, then resided. Some time between the month of June and the 25th day of December of that year, Mrs. Osborn rented the land, and moved elsewhere. One Manuel Martin was appointed administrator of Joseph Osborn, deceased, on the 2d day of December, 1850. On the 2d day of September, 1852, Mrs. Osborn filed her petition in the circuit court of said county against Manuel Martin, the administrator of the estate of her deceased husband, and John W. Blakely, his tenant in possession of the land, for the admeasurement of her dower therein, and for damages in the way of rents, etc. At the October term, 1852, of said circuit court, judgment was rendered in her favor against the administrator and his tenant, in which was adjudged to her as her dower one-third interest in said land for and during her natural life, and eight dollars damages, — that being her third of the rents and profits. The amount of the judgment was afterwards paid to her by the administrator. There was evidence tending to show that before this final judgment the land had been sold by the administrator for the payment of debts against the estate, and that Mrs. Osborn had become the purchaser of it at such sale, and therefore no commissioners were appointed by the court to admeasure her dower interest; the judgment reciting that, as Mrs. Osborn "had become the purchaser, since her husband's death, of said real estate, no commissioners are required to assign and admeasure her dower." On the 18th day of June, 1855, Mary Osborn conveyed said land to Benedict Weldon by general warranty deed, which was acknowledged before Manuel Martin, a justice of the peace, and duly recorded. The defendants claim title through mesne conveyances from Benedict Weldon. Mrs. Osborn died in March, 1886, and this suit was begun on the 26th day of July, 1895. The evidence tended to show that the land had been assessed to said Benedict Weldon and his grantees, successively, and that they had paid all taxes levied against it up to the time of bringing this suit, since the purchase of it by him, and that they had claimed to own it in fee simple during all that time; that they were in the actual, open, notorious, and adverse possession of said land from the time said Benedict Weldon took possession of said land up to the present time; that Ebenezer E. Weldon, one of the grantees, planted an orchard on said land, and that O. Ramsbottom, one of the grantees, who became purchaser of same about 1870, built a dwelling and barn and made other lasting and valuable improvements thereon, worth from four to five thousand dollars, soon after said purchase, and continued to reside thereon for more than 20 years, and that defendant James H. Weldon is now in possession under title derived from the heirs of said O. Ramsbottom, the latter having died in the year 1895. All of the papers of the probate court of Daviess county were destroyed by fire in January, 1890. Benedict Weldon and Manuel Martin died many years before the commencement of this suit, and John W. Blakely and David Enyart were also dead at that time, or their places of residence unknown. The youngest of the plaintiffs became of age in the year 1866. At the instance of plaintiffs, the court, over the objection and exception of defendants, declared the...