Slicer v. Owens

• Decision Date: 21 March 1912
• Parties: JULIA SLICER et al. v. T. B. OWENS et al., Appellants
• Court: Missouri Supreme Court

145 S.W. 428

241 Mo. 319

JULIA SLICER et al. v. T. B. OWENS et al., Appellants

Supreme Court of Missouri, Second Division

March 21, 1912

Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.

Affirmed (as modified).

Abington & Phillips for appellants.

(1) Harp's entering onto lot five in section five and clearing the land of underbrush and timber, is occupancy of a character to set in operation the Statute of Limitations. Johns v. McKibben, 156 Ill. 71; Smith v. Bryan, 44 N.C. 180; Twohig v. Leamer, 48 Neb. 247; Lantry v. Parker, 37 Neb. 353; Backus v Burk, 63 Minn. 272; Menkins v. Overhouse, 22 Mo. 70; Powell v. Davis, 54 Mo. 315; Holliday-Klotz v. Markham, 96 Mo.App. 51. (2) Harp could transfer his right acquired by adverse possession to the defendant so that title by adverse possession could ripen in defendant. Cooper v. Ord, 60 Mo. 420; 1 Cyc. 1003.

Orchard & Cunningham for respondents.

(1) To give color of title a deed must designate clearly the land conveyed. Hamilton v. Boggess, 63 Mo. 244; Wilkerson v. Thompson, 82 Mo. 328; Allen v Mansfield, 108 Mo. 348; Brewing Co. v. Payne, 197 Mo. 428. (2) One claiming title by adverse possession without color of title will be restricted in his possession to the part actually occupied or cultivated. Bradley v West, 60 Mo. 40. (3) When the motion for new trial was sustained in part, it should have been sustained in whole. 2 Black on Judgments, sec. 30; Russell v. Railroad, 154 Mo. 430; Cramer v. Barman, 193 Mo. 329.

BLAIR, C. Roy, C., concurs.

OPINION

BLAIR, C.

This is an appeal from an order of the Butler Circuit Court sustaining a motion for new trial.

The petition contains a count in ejectment to recover possession of lot one of the northwest quarter of section eight and lot five of the southwest quarter of section five, all in township twenty-five, range eight east, Butler county, Missouri, and contains a second count under section 2535, Revised Statutes 1909, to quiet plaintiffs' title to the same lands.

The answer admits possession and admits claim of title, denies all other allegations, sets up a plea of the Statute of Limitations to both counts of the petition and contains a count to quiet title under section 2535, Revised Statutes 1909.

T. A. Slicer, who was the record owner of the land in controversy, died March 3, 1895, leaving as his heirs two minor daughters, the plaintiffs in this case.

For defendant there was evidence tending to show that some time in 1893 James L. Green went upon lot one above described, built a small house and barn thereon, and cleared and inclosed an acre and a half or two acres thereof. In the summer or fall of 1894 he cleared a small part of lot five here involved, the area cleared being variously estimated at from four to six acres. The nature, extent, location (with respect to the lot lines) and object of this clearing by Green, as well as the use, if any, to which he put the ground is not clearly indicated. Until about January or February, 1895, Green had no color of title.

Defendant offered and the court admitted in evidence, over plaintiffs' exception, a deed from one Van Ausdale and wife to James L. Green, dated and acknowledged in November, 1892, and filed for record in March, 1893, purporting to convey lot one of the northeast quarter of section eight and lot five of the northwest quarter of section six, township twenty-five, range eight, east, and other lands.

A deed to the land in suit, dated January 23, acknowledged January 24, and filed February 1, 1895, signed by Van Ausdale and wife, in which James L. Green was grantee, was put in evidence. Green and his wife executed two deeds, both dated January 24 and filed March 25, 1895, one to W. J. Owens, the original defendant, and one to one Harp, for lots one and five respectively. Harp died thereafter, and by deed dated June 26, 1900, and recorded in March, 1906, his widow attempted to convey lot five to W. J. Owens.

The evidence further tended to show that Green occupied the house on lot one until March 12, 1895, when he delivered possession thereof to W. J. Owens, the defendant, who moved in on the same day and had held possession from that time until the trial.

There was no house and no inclosure on lot five. Harp boarded with Owens and went to work on lot five on March 12, 1895, or very soon thereafter, and held possession of this lot until his death, after which his widow and thereafter tenants of Owens were in possession until the trial. Owens paid the taxes regularly on lot one and Harp paid them on lot five until his death, after which the taxes on this lot were paid by Owens. There was no evidence that Green ever paid any taxes on any of the land.

The second deed from Van Ausdale to Green (dated January 23 and filed February 1, 1895) recited that it was made to correct the description in the first deed from Van Ausdale to Green.

For plaintiffs there was some evidence in rebuttal tending to show that Green abandoned the land in the winter of 1894-95 and was not in possession at the time he sold to Owens and Harp.

On this evidence the court found for defendant and rendered a judgment quieting his title to both lots one and five, describing them.

Plaintiffs filed a motion for new trial which the court overruled as to lot one and sustained as to lot five "on the ground that the Statute of Limitations had not run against plaintiffs, or in favor of defendants as to said land (lot five) at the time of the institution of this suit." Both plaintiffs and defendant appealed. Since the appeal was taken, W. J. Owens, the original defendant, has died, and his heirs have entered their appearance and been made parties to the record in his stead.

I. The burden was upon defendant to make out his defense under the Statute of Limitations and it was the province of the trial court, sitting as a jury (Minor v. Burton, 228 Mo. 558, 563, 564, 128 S.W. 964; Lee v. Conran, 213 Mo. 404, 412, 111 S.W. 1151, et seq.; sec. 1968, R. S. 1909), to weigh the evidence and determine the real facts of the matter. This duty this court cannot usurp. What has been said in the statement of the case is to be taken to mean simply that there was some evidence of the facts stated -- enough to require the trial court to pass upon the facts -- and not that this court intends the statement made as in any sense a finding of facts one way or the other.

Plaintiffs' father, the owner of the record title, died March 3, 1895, and plaintiffs themselves were then, and until this action was begun, remained, minors.

The possession taken by Owens and Harp could not have begun until March 12, 1895, and it alone could not, by reason of plaintiffs' minority, suffice as a basis for the plea of the statute. The deeds from Green to defendant Owens and to Harp, if accepted in good faith, were sufficient to warrant a finding that the latter succeeded respectively to Green's possession and that defendant in this case was entitled to rely upon that possession for whatever it is worth in making out his proof of title by limitations, provided the subsequent possession of Owens and Harp was of the requisite character and duration. The character and extent of Green's possession is therefore an important question in this case.

The first deed from Van Ausdale to Green did not describe any of the land in suit and consequently Green had no color of title until the delivery of the...