Sell v. McAnaw

• Decision Date: 23 March 1897
• Citation: 39 S.W. 779,138 Mo. 267
• Parties: Sell et al., Appellants, v. McAnaw et ux
• Court: Missouri Supreme Court

39 S.W. 779

138 Mo. 267

Sell et al., Appellants, v. McAnaw et ux

Supreme Court of Missouri, First Division

March 23, 1897

Appeal from the Clinton Circuit Court. -- Hon. William S. Herndon Judge.

Affirmed.

E. J Smith and Turney & Goodrich for appellants.

(1) The court erred in refusing the instructions prayed by the plaintiffs, because: First. The deed from Mary Crohan to Edward Smith, made and delivered in 1881, conveyed an interest that only a court of equity could recognize or enforce. Moore v. Harris, 91 Mo. 616; Bohannon v. Combs, 97 Mo. 446, 449; Waller v. Mardus, 29 Mo. 25; Magwire v. Riggin, 44 Mo. 512, 515. An equitable defense can not be shown under the general issue. Henry v. McKerlie, 78 Mo. 416. Second. The defendants can claim nothing under the statute of limitations. The possession of Edward Smith to which defendants succeeded by virtue of the provisions of his will was permissive and was never adverse in either. Colvin v Hauenstein, 110 Mo. 575 and cases cited; Comstock v. Eastwood, 108 Mo. 41. (2) The statement of the respective rights and interests of the parties given in the court's instruction and which is fully sustained by the evidence, shows that even now the plaintiffs could not recover if the defendants had set up the real facts, as an equitable defense. Gray et al. v. Givens, 26 Mo. 291. (3) But, even if the defendants' possession had been other than permissive, and had been inconsistent with plaintiffs' title, the possession has been neither actual, open, nor continuous. Herbst v. Merrifield et al., 133 Mo. 267.

H. T. Herndon and J. J. McAnaw for respondents.

(1) Widow, prior to assignment of dower, has no right to enter upon or possess or convey lands of her husband outside of homstead and quarantine. (2) When a woman conveys land it is not to be presumed, nor does it tend to prove, that a former husband owned such land. (3) Before a dower right attaches to lands owned by husband, his ownership in the land must have been of a particular kind, i. e., a seizin during coverture of an estate of inheritance in which the children of such marriage would inherit. (4) The theory upon which respondents' evidence is based is discussed with citation of authorities in Sedg. and Wait, Trial of Title to Land, sec. 733, and is discussed in Turner v. Hall, 60 Mo. 271; Leeper v. Baker, 68 Mo. 400; Draper v. Shoot, 25 Mo. 197. (5) Even if the husband owned the land and the widow could be considered a co-tenant with children her grantee entering under her deed would be a disseizee and begin an adverse possession. Long v. Stapp, 49 Mo. 506.

Macfarlane, J. Barclay, P. J., and Robinson and Brace, JJ., concur.

OPINION

Macfarlane, J.

This is an action of ejectment to recover a tract of land in Clinton county described as the east twenty-five acres of the northeast quarter of the southwest quarter of section 33, township 57, range 30. The answer is a general denial.

On the trial a patent to the land from the United States to Charles W. Porter, dated in 1857, was read in evidence. Neither party proved title under the patentee.

Plaintiff offered in evidence the following deeds conveying this land: Louis Sutter to Bradford H. Bennett, dated February, 1864; Bradford H. Bennett to Thomas Crohan, dated October, 1864. It was shown by the evidence that Thomas Crohan, during the years 1865 and 1866, lived for about one year in the neighborhood of this land. He died about the year 1880 leaving a widow and four children. Plaintiffs claim title under a deed from the widow and three of the children of Thomas Crohan, dated March 26, 1895.

Plaintiffs, in order to prove a common source of title, read in evidence a deed from the widow of Thomas Crohan to Edward Smith, dated March 12, 1881. They then offered evidence showing that Edward Smith died in 1883, testate, leaving all his estate to his widow during her life, and that defendant, Mrs. McAnaw, now the wife of her codefendant, is the widow of said testator. They also offered evidence tending to prove that Edward Smith at his death owned a prairie farm near the land in dispute; that during his lifetime the testator, and, since his death, his widow, the said defendant, have taken from this land all the timber and firewood used on the farm. Defendants admitted that the right to so use the land was claimed under deed from the widow of Thomas Crohan.

Plaintiffs asked but the court refused to give the following instructions:

"1. Under the pleadings and evidence the verdict must be for the plaintiffs.

"2. That to constitute the possession of the defendants or the party under whom they claim adverse to the title of plaintiffs, the jury must find from the evidence that the defendants or the party under whom they claim built permanent structures on said land, or actually enclosed or cultivated some part thereof, and that it is not sufficient that the defendants or the party under whom they claim paid taxes on the land, kept off trespassers and cut timber thereon, under claim of ownership, and unless the jury believe from the evidence that the defendants, or one of them, or Edward Smith, built said structures on the land, or enclosed some part of it with a fence, the jury must find for the plaintiffs."

"3. That the deed from Mary Crane to Edward Smith was unauthorized and void for want of authority in the grantor to convey the land described in it, and no recovery in whole or in part can be based on said deed, but the defendants must recover, if at all, upon actual occupancy of the land in suit, as required in the second instruction."

The court, thereupon, on its own motion gave to the jury this instruction:

"The court instructs the jury that the quitclaim deed read in evidence from Mary Crane to Edward Smith, deceased, dated March 1, 1881, conveyed to said Smith the dower interest of said Mary Crane, that is, to an undivided third of the land during the life of the said Mary Crane and that that interest passed to the defendants by virtue of the will of Edward Smith; that said deed and will gives the defendants the right to the possession of the premises in controversy until the dower of the said Mary Crane is assigned; that there is no evidence that such dower has ever been assigned and the jury will find for the defendants."

To explain the instructions it should be stated that the Crohan family, since the death of its head, has changed its name to that of Crane.

The judgment was for defendants and plaintiffs appeal.

1. When both parties to an ejectment suit claim title through the same third person it is not usually necessary for plaintiff to go back of the common source in order to prove a title upon which he can recover. It is enough that he shows a better title, through the common source, than defendant can show through the same source. Before a defendant can be allowed to impeach the common source he must establish that he has acquired a superior title. To show a better outstanding title will not help him. Sedg. and Waite, Trial of Titles, sec. 803.

Plaintiffs have shown no title to the land in themselves but base their right to recover on the claim that Thomas Crohan is the...