Ross v. Alyea

• Decision Date: 16 July 1917
• Docket Number: No. 18,583.,18,583.
• Citation: 197 S.W. 268
• Parties: ROSS v. ALYEA et al.
• Court: Missouri Supreme Court

197 S.W. 268

ROSS v. ALYEA et al.

No. 18,583.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by J. C. Ross against Louisa J. Alyea and husband. From judgment for plaintiff, defendants appeal. Affirmed.

The suit affects the title to a small tract of land in Jasper county. The appellants profess an inability to understand what character of case the plaintiff attempted to state, and assert that the petition states no cause of action. The respondent calls it a "bill in equity to quiet title." The petition alleges that on _____, 1901, the defendants, L. J. Alyea and J. H. Alyea, her husband, and the mother of L. J. Alyea, were the owners in fee of a described strip of ground 100 feet wide by 648 feet long in a certain 80-acre tract in Jasper county, the mother owning a life estate and Mrs. Alyea the remainder in fee; that on that date the defendants made a trade and exchange of the said tract of land with the plaintiff for a certain part of his 80-acre tract adjoining; that the defendants and the plaintiff thereupon changed the fences and located them upon the new line agreed upon, so as to include within the inclosure of each the tract received in the exchange; that the plaintiff since that date has had exclusive, open, and notorious ownership of the tract first above described, and has been in open, adverse, and peaceable possession of same for more than 10 years; that the mother of Mrs. Alyea has since died; that the defendants at all times recognized plaintiff's right and ownership of the same, but that certain differences had arisen between the respective families, which had caused the defendant Louisa J. Alyea to claim some interest in the tract first above described; and that the nature of the interest was unknown to the plaintiff, but that it was adverse to him and a cloud upon his title. The petition then prays the court to hear and determine the matters alleged, and to adjudge and decree that plaintiff is the owner of the real estate first above described, etc., and that defendants be forever barred from claiming or asserting any right or title in or to said real estate. A demurrer to this petition was overruled. An answer was then filed, which, after a general denial, alleged laches in bringing the suit which would bar plaintiff's right, and, in what defendants termed a cross-petition, alleged the defendant Louisa J. Alyea's right to possession of the premises, that the plaintiff unlawfully withheld the same, and closed with a prayer for possession.

Plaintiff introduced evidence to show that in 1902 the plaintiff owned an 80-acre tract of land in Duval township, in Jasper county, and that defendants lived on an 80-acre tract adjoining. In this 80 acres on which Mrs. Alyea lived, her mother, Mrs. Middaugh, had a life estate with remainder in Mrs. Alyea— so provided by a will. The two 80-acre tracts joined each other in their length, north and south; the plaintiff's being on the west. Plaintiff's house was situated in the southeast corner of his tract, near the line between the two. A trade was agreed upon whereby the plaintiff was to have a strip 100 feet wide by 648 feet long out of the southwest corner of defendants' tract, in exchange for a tract similar in size out of the northeast corner of the plaintiff's tract. It was stated by some of the witnesses that the tract which plaintiff traded to the defendants was of more value than the one he got, but that the one he got was of greater advantage to him, because it was next to his house. It appears from the testimony that while Mrs. Middaugh, who died in 1909, had a life estate in the 80 acres occupied by the defendants, Mrs. Alyea, who owned the remainder, also had a "lifetime lease on it," was in possession of it, had control of it, and called it her land. The evidence tends to show that, before the trade was concluded, Mrs. Middaugh was consulted and agreed to sign a deed to that part which Mrs. Alyea was trading to the plaintiff. The parties, the plaintiff and the defendants, then located the lines where they wanted the fences placed, and moved the fences to the line agreed upon. It appears that Duval creek divided the lands of the two along the new line, which cut off the part the plaintiff traded to defendants. Plaintiff, after the trade, made certain improvements upon the part which he got. He erected a smokehouse and a wellhouse, set out some trees upon the strip, and extended his fence along the front. The defendants likewise made some improvements upon the tract they got. They "riprapped" the bank of the creek "to save the bank." Each party continued in possession of the tract so received in the trade, and cultivated the same until the death of Mrs. Middaugh, and after that time for some 3 or more years, until some trouble arose between the two families on account of a fight which occurred between their boys. Mrs. Alyea then demanded a restoration of the fences to the former old line, and plaintiff brought this suit.

It appears in their testimony the defendants conceded there was talk of making the trade, which plaintiff asserts was made, and explained that the reason it was not consummated was because the defendants were unable to make a deed. Defendants claimed, further, that the agreement was not to convey titles to the properties, but the parties just exchanged possession and cultivated the tracts exchanged for the convenience of each. It is not claimed by the appellants that the possession of either party according to the new lines was interrupted or questioned, or that anything was said with reference to re-exchange of possession from the time the trade was made in 1902 until the difficulty, which occurred in 1912 or 1913, although the defendants continued to pay the taxes on their entire original eighty. J. H. Alyea testified that, when the plaintiff spoke to him about a deed, he told the plaintiff he could not make it, but said he met the plaintiff, and the two stepped off the ground and worked together to change the fences. This witness stated that a part of the agreement was that each was to "get the creek cleaned up," so as to prevent an overflow; that he did his part of it, but that the plaintiff failed to do his part. It seems no complaint ever was made to plaintiff about his failure in that respect. The defendants made no protest or suggestion to plaintiff on account of the improvements which he made on the strip of land he got in the trade, and admitted that Ross, the plaintiff, spoke to them several times about making deeds. Several witnesses were offered to prove statements made by Mrs. Alyea to the effect that she had made the trade which plaintiff claims was made. It further appears that, while Mrs. Alyea had a lifetime lease from her mother upon the land, she paid no rent for its use.

The judgment of the trial court was for the plaintiff, in accordance with the prayer of the petition. The court found the contract for exchange was made as claimed by the plaintiff, possession given and retained, each party continuing in exclusive possession of the tract received in the trade, with full and complete dominion over the same, and that the plaintiff erected substantial improvements upon the tract received by him. It was ordered and decreed that the defendants be forever barred from asserting any right or title to the tract traded...