Rutter v. Carothers

• Decision Date: 27 November 1909
• Citation: 122 S.W. 1056,223 Mo. 631
• Parties: RETTA RUTTER et al., Appellants, v. JOHN F. CAROTHERS et al
• Court: Missouri Supreme Court

122 S.W. 1056

223 Mo. 631

RETTA RUTTER et al., Appellants, v. JOHN F. CAROTHERS et al

Supreme Court of Missouri, First Division

November 27, 1909

Appeal from Shelby Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Reversed and remanded (with directions).

Dysart & Mitchell and H. A. Wright for appellants.

(1) The judgment rendered for the plaintiffs was right and proper and it was error to grant defendants a new trial. (2) The defendants seek to hold the land in question exclusively solely on the Statute of Limitations. It is not possible for one to acquire title to real estate under any section of our Statute of Limitations, without an adverse holding for some length of time. Our statute is based upon the fact of an adverse possession and claim of ownership. The answers of the defendants do not allege and count upon an adverse holding but simply, that the plaintiffs failed to sue within three years after the death of their mother. Nor does the agreed statement of the facts show an adverse holding, or make any claim of an adverse holding. It follows that the defendants cannot recover on the Statute of Limitations. A trust estate could not be converted into an adverse holding without an express renunciation of the trust, with notice to the beneficiary. McCune v. Goodwillie, 204 Mo. 306; Coberly v. Coberly, 189 Mo. 16. (3) It is not possible in this State for one to acquire title to real estate by limitation, without an adverse holding for a period of ten years. In case of certain disabilities, the time may be much longer, among which disabilities are insanity, infancy and coverture. The privileges provided for the unfortunate, the weak and the incapable, were not intended for their prejudice, but for their benefit. These privileges were not intended to limit the term of ten years, but to increase it, when disability existed. This is the evident meaning of sections 4262, 4265 and 4267, R. S. 1899, which must be construed together. And this has been the uniform ruling of this court in construing section 4267. Gray v. Yates, 67 Mo. 603; DeHatre v. Edmonds, 200 Mo. 246; Robinson v. Allison, 192 Mo. 371; Graham v. Ketcham, 192 Mo. 15. (4) It is conceded that plaintiffs had no cause of action until after their mother's death, which death occurred on the 26th of July, 1898. This suit was commenced on the 2d day of September, 1904, only six years after the death of the mother. The plaintiffs had four years to run before the ten-year period was up. The defendants' possession, even if adverse, covered only six years. If the mother had lived four years longer, then the plaintiffs would have been entitled to three years in addition to bring their suit -- three years in addition to the ten. The deed of trust was foreclosed on the 12th day of May, 1898, and the mother of the plaintiffs died about two months thereafter. It follows that plaintiffs are not barred by any section of our Statute of Limitations, even conceding for the argument's sake, that defendants were holding the premises adversely for the period of six years next before the commencement of this suit. This sale concluded the rights of the widow, she having joined in the deed of trust. When the defendants, John F. and James A. Carothers, discharged the lien and bought in the outstanding title, they took the legal title in trust for all the tenants in common, and held the premises in trust for all the heirs of the ancestor, James H. Carothers, subject to be reimbursed for the money paid by them in discharge of the lien. That the defendants held the legal title in trust for all the heirs is conceded by the agreed statement of the facts, and is evidently the law. The doctrine is elementary. Perry on Trusts (5 Ed.), p. 164, sec. 127 and notes; Rector v. Gibbons, 111 U.S. 291; Hinters v. Hinters, 114 Mo. 26; Allen v. DeGroodt, 105 Mo. 442; Dillinger v. Kelly, 84 Mo. 561; Picot v. Page, 26 Mo. 421. See McCune case and Coberly case, supra. This trust estate could not be converted into an adverse holding, without a positive and express repudiation of the trust, with notice to the cestui que trust. And the evidence of such repudiation and notice to the beneficiaries must be "clear and unmistakable." 2 Perry on Trusts (5 Ed.), pp. 552-559, secs. 863 and 864; Ib., p. 563, sec. 866; Blackaby v. Blackaby, 56 N.E. 1053; Kohle v. Hobson, 215 Mo. 213.

V. L. Drain for respondents.

(1) Plaintiffs are not entitled to the relief asked for, they having not elected within a reasonable time to treat the defendants as trustees, and have therefore waived their rights as to the subject-matter. Burnes Estate v. Ayr Lawn Co., 82 Mo.App. 66; Cockrill v. Hutchinson, 135 Mo. 67. (2) It is conceded by the petition that defendants claim adverse and exclusive title to the land in controversy. In any event the fact that John F. Carothers purchased this land at foreclosure sale, took a deed therefor and had the same placed of record, and thereafter sold a portion of it to his brother, and the further fact that they have controlled it exclusively ever since the death of their father, fixes the status of the parties and makes the defendants adverse claimants. Campbell v. Laclede Gas Co., 84 Mo. 352. (3) This action is barred by the Statute of Limitations, the same having been pleaded in defense. It is conceded that the mother of plaintiffs was a married woman at the time of her father's death, and so remained until her death. Her right to sue descended to her heirs and under the provisions of Sec. 4267, R. S. 1899, this right must be exercised within three years after her death. Her death occurred on July 26, 1898; the right to bring this action by her heirs terminated on July 27, 1901, and this suit having been begun on September 2, 1904, the same is barred by the statute. R. S. 1899, secs. 4265-4267; Fairbanks v. Long, 91 Mo. 636; Reed v. Painter, 145 Mo. 342; Rosenburger v. Mallerson, 92 Mo.App. 27; Robinson v. Allison, 192 Mo. 366; Smith v. Settle, 128 Mo.App. 379.

OPINION

LAMM, P. J.

In a suit under section 650 to declare and establish title in 176 acres of land in Shelby county, judgment went for plaintiffs for an undivided one-third interest, subject to a charge of $ 383 in favor of defendants. Afterwards a new trial was awarded on defendants' motion. From that order plaintiffs appeal.

Summarized, the petition charges and the agreed statement of facts shows that James H. Carothers was twice married. His first wife died. By her he had one child, Alvira. Alvira married Chatman Speight and died leaving children, married and unmarried, minors and adults, who, with their father, Chatman Speight, are parties plaintiff. By his second wife, Millie G., he had two sons, John F. and James A., who with Millie G., are parties defendant. On an undisclosed day in 1892, James H. Carothers died seized of the southeast quarter and the east 16 acres off of the east half of the southwest quarter in section 36, township 58, range 12, in Shelby county -- all in possession of defendants.

It is charged in the petition that defendants claim title to the exclusion of plaintiffs and are seeking to exclude and bar plaintiffs from any right, or interest in the land; that defendants' claim of exclusive title is based upon a purchase made by the defendant John F. Carothers at a trust deed sale, under a defaulted trust deed executed by his parents James H. and Millie G.; that if such is the basis of defendants' claim, it is not valid for that the children of Alvira are entitled by inheritance and descent to a one-third undivided interest in the real estate and that the purchase by John F. at foreclosure sale inured to the benefit of all the heirs of James H. Carothers as tenants in common.

The prayer of the petition was that the court declare and quiet the title as between plaintiffs and defendants and ascertain and determine the title and interests of the parties respectively and define and adjudge the several interests in such real estate and that defendants and each of them be forever barred from claiming any right, title or interest in the part adjudged to plaintiffs; that the cloud upon their title be removed and "for such other relief as they may appear to be entitled to in the premises."

The answer of Millie G. admits her marriage with James H.; that she is his widow and that he died seized of the land described; and charges that Alvira, the mother of plaintiffs, died in July, 1898; further that plaintiffs have no right to maintain this action because of section 4267 of the Statute of Limitations. As a further defense she pleads generally that plaintiffs have been guilty of such laches as prevent a recovery.

Defendants John F. and James A. file a joint answer, admitting that James H. Carothers died seized of the land, but they deny plaintiffs have any interest or rightful claim in the premises in that, they say, James H. and Millie, his wife, executed a deed of trust on the land securing to the Jarvis-Conkling Trust Co. borrowed money, which trust deed was spread of record; that after the death of James H., the note evidencing said borrowed money and so secured was assigned to one Whitby; that on May 12, 1898, said deed of trust was duly foreclosed; that John F. Carothers purchased at said foreclosure sale for $ 1,400.50 and received a trustee's deed on the payment of said sum; that John F. afterwards conveyed an interest in the land to James A.; that the right, if any, of plaintiffs to bring this action terminated in three years after the death of their mother in the month of July, 1898. Wherefore, they plead the three-year Statute of Limitations, to-wit, section 4267, Revised Statutes 1899, as a defense, and that plaintiffs have been guilty of laches abating the suit.

The trial was to the court as in equity...