Sell v. McAnaw

• Decision Date: 12 November 1900
• Citation: 59 S.W. 1003,158 Mo. 466
• Parties: SELL v. McANAW et al.
• Court: Missouri Supreme Court

59 S.W. 1003

158 Mo. 466

SELL v. McANAW et al.

Supreme Court of Missouri, Division No. 1.

November 12, 1900.

DOWER — GRANTEE OF WIDOW — ADVERSE POSSESSION — EVIDENCE — QUESTION FOR JURY.

1. Since a dower interest entitles the dowress to a life estate in only one-third of the real estate, and not to possession or profits of the whole real estate for life, the grantee of a dowress under his deed could not be entitled to the exclusive possession of the whole land during the dowress' life.

2. Where, in ejectment, defendant could only recover by showing adverse possession for the statutory period, and it appeared that defendants and the one under whom they claimed had taken from the land in question all the timber and firewood used by them, that they had paid taxes on the land and kept trespassers off, that it was known among the neighbors as theirs, and that they did not recognize the rights of any one else, but there was testimony tending to show that defendants had admitted that they only had the unassigned dower interest of a widow, which had been deeded by her to the one under whom defendants claimed, and that on the widow's death her heirs would be entitled to the land, and that after the commencement of suit they had procured another conveyance from the heirs of one who had once conveyed the land to strangers to the suit, it was error to direct a verdict in favor of defendants, since, on the evidence, the question whether there was adverse possession was for the jury.

Appeal from circuit court, Clinton county; W. S. Herndon, Judge.

Suit by Gustave Sell against Anna McAnaw and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Ejectment to recover 25 acres of land in the N. E. ¼ of the S. W. ¼ of section 33, in township 57, range 30, in Clinton county, Mo., instituted April 2, 1897. The petition is in ordinary form. The answer of Anna is a general denial, while that of her husband, John J., is an admission of his possession, an allegation that such possession is lawful, and a general denial of the other allegations of the petition. Thomas Crahan (now called Crane), who died October 1, 1880, is the common source of title. The plaintiff claims under a deed from Mary Donnelly, formerly Mary Crane, the widow of Thomas Crane, and who was married to Donnelly in February, 1887, and Maggie E. Crane, John B. Crane, and Lizzie Crane, heirs at law of Thomas Crane, dated March 26, 1895, and under a deed from Thomas Crane, the remaining heir of Thomas Crane, dated May 3, 1895; while the defendants claim under a deed made by Mary Crane (now Donnelly), the widow of Thomas Crane, to Edward Smith, dated March 12, 1881, and under the will of Edward Smith, who devised the profits of all his real estate to his wife, Anna (now the defendant Anna McAnaw), for life, and after her death the estate to go to his son, Charles Edward Smith, but, if he died before his mother, leaving no issue, the estate to go to Anna absolutely. At the time of the trial in the circuit court, on September 14, 1897, Thomas Crane, the son, appears to have died without issue, and the living heirs were John, aged 32, Lizzie, aged 29, and Maggie, aged 23. The land in controversy is woodland, and lies about a mile and a half from the mansion house of the defendants. It was used by them to supply fuel and poles for the home place, and has no value as farming land. It was never inclosed or fenced until a short time before the institution of this suit. Mrs. McAnaw paid taxes on it, and excluded trespassers from it. There is no substantial conflict in the evidence that when Edward Smith bought the land from Mrs. Crane he knew she had only an unassigned dower interest in the land, and said he only wanted it to cut the timber on it, and that for this purpose the title he got from Mrs. Crane was worth the $200 he paid her for it. At the time Mrs. Crane sold to Smith, her oldest son was of age, and he refused to join in the deed. The plaintiff introduced testimony tending to prove that the defendants, Anna and John, both admitted that Anna had only the life estate of Mrs. Donnelly (the former wife of Thomas Crane), and that after her death the heirs of Thomas Crane would be entitled to the land. The defendants introduced testimony tending to prove that they used the land to get timber from it for fuel and poles for the home place; that they had paid taxes on it; that they kept trespassers off of it; that it was known and called among the neighbors the "McAnaw Property"; and that they claimed it as their own, and did not recognize the rights of any one else. The plaintiff asked the court to instruct the jury that he was entitled to recover one-fourth part of the land, and also defining what constitutes adverse possession, but the court refused to give such instructions, and, on the contrary, peremptorily instructed the jury to find for the defendants. After proper steps, the plaintiff prosecuted this appeal.

E. J. Smith and Turney & Goodrich, for appellant. H. T. Herndon, for respondents.

MARSHALL, J. (after stating the facts).

This controversy was heretofore before this court, and is reported in 138 Mo. 267, 39 S. W. 779. It was then held that the deed from Mary Crane to Edward Smith conferred no right of possession upon Smith, and no right to go upon the land and cut timber therefrom, for the reason that she had no such right; that the land...