Peck v. Lockridge

• Decision Date: 18 March 1889
• Citation: 11 S.W. 246,97 Mo. 549
• Parties: PECK et al. v. LOCKRIDGE.
• Court: Missouri Supreme Court

11 S.W. 246

97 Mo. 549

PECK et al. v. LOCKRIDGE.

Supreme Court of Missouri.

March 18, 1889.

JOINT TENANCY — ADVERSE POSSESSION.

1. The doctrine that a purchase of an outstanding title by one joint tenant will be held to be for the benefit of his co-tenants, and not adverse to them, has no application to a case where the tenant buys the interest of his co-tenants at a public sale, and thereby obtains, or attempts and claims to obtain, their title.

2. The fact that a co-tenant in possession is claiming adversely need not be made known by a personal or formal notification to his co-tenants. It is sufficient if his adverse claim is so notorious that their knowledge of it can be presumed.

3. Where a woman is entitled, at the time of her marriage, to sue for possession of her land adversely held, her husband is the only proper party to maintain such action during the continuance of his marital rights.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Dobson & Douglas and H. N. Ess, for appellant. E. B. Gill, for respondents.

RAY, C. J.

This is an action of ejectment, brought by plaintiffs, who are husband and wife, against defendant, to recover the possession of the one-twentieth of 120 acres of land, in the N. W. ¼ of section 15, township 49, range 33, in Jackson county, Mo. The answer contained, first, a general denial, and then two other separate answers, the last of which is in the nature of the statute of limitation, with adverse possession, for the statutory period, under claim and color of title.

The facts necessary to present what we deem the controlling questions in the case are, as we gather from the record, briefly, about these: Jones Lockridge, who died intestate in 1836, was the grandfather of defendant and plaintiff Alice, and the common source of title to each. At his death he left surviving him five children, to-wit, John H., Jones H., Amanda B., (the mother of plaintiff Alice,) Dudley S., and Thomas J., (the father of defendant,) and his widow, Rachel. At his death, said Jones Lockridge was seised in fee-simple of said N. W. ¼ section 15, township 49, range 33, (of which the land in suit is part,) and various other tracts of land in said county of Jackson. Subsequently, in 1840, said real estate was partitioned between and among his said children and widow, and the said N. W. ¼ section 15, township 49, range 33 was set apart to said widow as her dower. Amanda Lockridge, the mother of plaintiff Alice, was twice married, having by the first marriage three children, Emily, George W., and William W. Talley, and by the second marriage, the plaintiff Alice Soyster, and died shortly after the birth of said Alice. Subsequently, in 1849, after the death of said Amanda, a suit was brought in the circuit court of Jackson county, Mo., in the names of the children and heirs at law of said Amanda, (the mother of plaintiff Alice,) against Rachel Lockridge, their grandmother, and the widow of said Jones Lockridge, praying said court, as a court of equity, to order and decree a sale of the one-fifth interest of said children of said Amanda Lockridge, (in the lands now in controversy and which had been assigned to the widow as her dower,) which suit is thus entitled: "Joseph C. Ranson and Emily Ranson, his wife, for themselves, and William Wallace Talley and George W. Talley, by their guardian, Joseph C. Ranson, and Alice Soyster, by her next friend, John J. Soyster, plaintiffs v. Rachel Lockridge, defendant. — On petition to sell land." In 1850 there was judgment in this suit, ascertaining the rights of all parties, and ordering that this one-fifth interest be sold at private sale, and appointing Joseph C. Ranson as commissioner to make the sale. A sale was accordingly made by said commissioner to Thomas J. Lockridge, the father of the defendant, for $528. This sale was reported to, and approved by, the court, and a deed in due form duly made, acknowledged, and recorded in the proper office, conveying, or purporting to convey, said interest of the parties to said suit to said Thomas J. Lockridge. It also further appears that the plaintiff Alice was born in March, 1849; her mother, Amanda, as before stated, died shortly after her birth, in the same year, and her father, John J. Soyster, some time in 1851 or 1852; and that she, said Alice, attained her majority in March, 1870. The plaintiffs were married in 1867, and have three children born of the marriage. This suit was commenced in August, 1883, and the trial had in January, 1885. It also further appears that Rachel Lockridge, the widow of said Jones Lockridge, after his death continued to reside on the land in question so set apart to her as her dower, until her death, in 1862. During this time her son Thomas J. Lockridge resided with her on the place, and the plaintiff Alice, after the death of her mother, also lived with her grandmother till her death, the most of the time, and then with her said uncle, Thomas J. Lockridge, until her marriage in 1867. It appears, as before stated, that in 1852 Thomas J. Lockridge, under a judicial sale of the Jackson circuit court, bought plaintiff Alice's interest in the lands in controversy at the price and sum of $528, and got the commissioner's deed therefor, conveying, or purporting to convey, the same to him, and placed the same on record in the proper office. Prior thereto it also appears that said Thomas J. Lockridge had directly and indirectly purchased the one-fifth interest of all the other heirs to the land in controversy for valuable considerations, got deeds therefor, and placed them on record in the proper office. In fact it was conceded at the trial that the interest of all the other heirs had by proper deeds or conveyances passed from them, and directly or indirectly vested in the said Thomas J. Lockridge, prior to his said purchase at said commissioner's sale of the said interest of the plaintiff Alice, and that said deeds and conveyances were all on record in the proper office in said county. It also further appears that said Thomas J. Lockridge, at, prior, and subsequent to his said purchase of plaintiff Alice's said interest, at said commissioner's sale, resided on the land in controversy with his mother, Rachel Lockridge, who held a dower interest therein, and continued to reside with her till her death in 1862, claiming all the while to be the absolute and exclusive owner of the fee-simple title to the same, subject only to the dower interest of his said mother, Rachel, with whom he lived till her said death; and during all this time he also paid the taxes on said land, made valuable and lasting improvements thereon, and in various ways exercised the usual acts of ownership over and pertaining to said fee-simple title thereto. It also further appears that some time prior to his mother's death, to-wit, in 1860, she conveyed, by deed duly acknowledged and recorded, for good and valuable consideration, her said dower interest and estate in said land to said Thomas J. Lockridge. It further appears that upon his mother's death, in 1862, said Thomas J. Lockridge immediately took and held the actual, open, notorious, adverse, and exclusive possession of said land, under claim and color of fee-simple title thereto, paying the taxes, making other and further valuable and lasting improvements thereon, up to his death in 1868; and that those claiming under him have so actually occupied, possessed, and claimed said land continuously up to the commencement of this suit, and still so hold, possess, and claim the same, to the exclusion of the plaintiff and everybody else.

This case was tried by the court without a jury. At the trial the plaintiffs offered the plaintiff Alice as a witness in said cause, to which defendant objected as incompetent, but the court overruled said objection, and permitted said Alice to testify, to which ruling of the court the defendant, at the time, excepted. At the conclusion of the evidence on both sides the plaintiffs asked no instruction. The defendant, however, asked the four following instructions, to-wit: "(1) The commissioner's deed from Joseph C. Ranson to Thomas J. Lockridge, read in...