Smith v. White

• Decision Date: 17 December 1901
• Citation: 165 Mo. 590,65 S.W. 1013
• Parties: SMITH v. WHITE et al.
• Court: Missouri Supreme Court

65 S.W. 1013

165 Mo. 590

SMITH v. WHITE et al.

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

EJECTMENT — TITLE OF PLAINTIFF — COVERTURE — DAMAGES FOR DETENTION — DENIAL OF TITLE — APPEAL AND ERROR.

1. The plaintiff testified that she and a brother were children of a certain person by his first marriage, and that defendant and another brother were children of her father by his last marriage. Plaintiff was 31 years older than defendant. The latter testified that plaintiff and her full brother had spoken of a certain woman they had once lived with as "mother," and that defendant was told in response to inquiries that the father had left a wife in the place where he originally came from, and had since married again, making defendant and her full brother, who were children of the latter marriage, illegitimate. Held to sustain a finding that plaintiff was a half-sister and heir at law of defendant's full brother.

2. In ejectment a married woman cannot recover damages for detention of her land prior to the death of her husband, as he was entitled to the possession and the rents and profits during his life.

3. In ejectment ouster was alleged, and a denial of plaintiff's title was shown to have occurred in 1889. Plaintiff was a married woman from 1871 to 1896. On the trial defendant contended, in support of a defense of limitation, that she had ousted the plaintiff prior to her marriage. Held, that defendant could not deny plaintiff's right to damages for detention since the death of her husband on the ground that there was no evidence of a denial of plaintiff's title since her husband's death.

4. Under Rev. St. 1899, § 866, giving the supreme court power to enter such judgment on appeal as the trial court should have entered, the supreme court will correct judgment in ejectment erroneous as to the amount of damages to which plaintiff is entitled for detention, and enter judgment which is proper under the facts.

Appeal from circuit court, Carroll county; Jno. P. Butler, Judge.

Ejectment by Mary E. Smith against T. D. White and others. From a judgment in favor of the plaintiff, defendants appeal. Affirmed.

Jas. L. Minnis, Chas. R. Patterson, Jno. B. Hale, and L. A. Holliday, for appellants. Lozier & Morris, for respondent.

MARSHALL, J.

Ejectment for an undivided one-fourth interest in certain real estate in Carroll county. The plaintiff recovered judgment in the circuit court, and defendants appealed. The defendants T. D. and N. M. White are the tenants of the real defendant, Martha A. Downey. The ouster is laid as of the 3d of December, 1889. The suit was begun to the November term, 1897. The answer of Martha A. Downey is a general denial, except as to possession, and a special plea that the rights of the parties to the land in question were adjudicated in 1889 in a prior ejectment suit. Upon the trial the defendant also claimed title by limitation, but, as the jury found that issue, under admittedly proper instructions, against her, she does not urge that defense here. In fact, the appellant assigns only two errors, to wit: First, that there is no evidence that the plaintiff was a half-sister of William Downey, through whom she claims title, as does also the defendant; and, second, that the sixth instruction given for the plaintiff is erroneous, in that it authorized the jury to allow the plaintiff damages for detention for the five years next before the filing of this suit. The defendant also claimed in the trial court that the property was originally owned by Martha Barrier, an aunt of the defendant, and that prior to her death she made a will, by which she devised the property to defendant and her brother, William Downey, as joint tenants, the survivor to have the whole; and hence upon his death she took the whole estate by survivorship. But there was no substantial evidence to support this claim. No such will was ever found or probated, and, on the contrary, it appeared that on the 2d of April, 1869, a few days before her death, her said aunt deeded the property absolutely to said William Downey, and it was held by him until April, 1870, when he died without issue, single, and intestate. Upon his death the defendant took possession, and has held it ever since. At that time the plaintiff was a widow, but in November, 1871, she married Charles Smith, and her coverture continued until his death, in October 1896, and this suit was begun in October, 1897. In fact, this contention of a right by survivorship is not insisted upon here.

The first error assigned — that there is no evidence that the plaintiff was a half-sister of William Downey — is not tenable. The plaintiff testified that she is a daughter of Richard S. Downey by his first marriage, and that the defendant and William Downey were children of said Richard S. Downey by his last marriage, which was either his third or his fourth marriage. It is not altogether clear whether he was married three or four times. The plaintiff further testified that Simeon (or John S., or Seaman) Downey was her full brother. If this be true, — and there was substantial evidence to support the plaintiff's contention, — the verdict of the jury to which this issue was submitted is conclusive in this court. James v. Association, 148 Mo. 1, 49 S. W. 978. But the defendant's testimony did not amount to substantial evidence to the contrary. She disclaimed any knowledge on...