Snell v. Harrison

• Decision Date: 10 December 1895
• Citation: 32 S.W. 37,131 Mo. 495
• Parties: Snell et al. v. Harrison et al., Appellants
• Court: Missouri Supreme Court

32 S.W. 37

131 Mo. 495

Snell et al. v. Harrison et al., Appellants

Supreme Court of Missouri

December 10, 1895

Appeal from Johnson Circuit Court. -- Hon. James H. Lay, Judge.

Affirmed.

Charles E. Morrow and A. B. Logan for appellants.

(1) A party out of possession can not maintain partition against one in possession and holding adversely to him. Wommack v. Whitmore, 58 Mo. 448; Hausler v. Iron Co., 110 Mo. 189; Colvin v. Hauenstein, 110 Mo. 575. (2) The plea of the statute of limitations, that is, that defendant Brunetta Harrison is now, and for more than ten years before the filing of plaintiff's petition has been in the open, visible, notorious, exclusive, adverse, and uninterrupted possession of all the land sued for, is a complete defense to this action. R. S. 1889, sec. 6764; Shaw v. Gregore, 41 Mo. 407; Briscoe v Johnson, 35 Mo. 326; Wommack v. Whitmore, 58 Mo. 448; Forder v. Davis, 38 Mo. 107; Peck v Lockridge, 97 Mo. 558. (3) Defendant Brunetta Harrison claims under a sheriff's deed to Dr. J. H. Warren, and a deed from said Warren to her. These conveyances were prior, in point of time, to any claim of title by plaintiffs, and the statutes began to run in her favor from the date of those deeds. Sharp v. Cheatham, 88 Mo. 510; Munson v. Ensor, 94 Mo. 556; Fox v. Hall, 74 Mo. 315; Ozark Land Co. v. Hays, 105 Mo. 143; Hope v. Blair, 105 Mo. 85. (4) The defendant, Brunetta Harrison, was in possession of the land under her deeds from Warren at the time she bought in the outstanding title held by Harvey Harrison, and she had a right to buy in the same to perfect her title. Campbell v. Laclede Gas Co., 84 Mo. 371; Wood on Lim. of Act., sec. 266, pp. 558, 559, 560; 3 Wash. Real Prop., sec. 7, pp. 22, 25, 26; Jackson v. Smith, 13 Johns. 413. (5) Defendant's deeds offered in evidence convey to her the entire estate, and no presumption of joint tenancy, or tenancy in common, arises. Freeman on Cotenancy and Part., secs. 106, 197, 224, 229, 230; Cannon v. Stockman, 36 Cal. 538; Schuhman v. Garrett, 16 Cal. 100; Watkins v. Holman, 16 Pet. 53; Shannon v. Kingman, 1 N.Y. 246; Long v. Stapp, 49 Mo. 508; Warfield v. Lindell, 30 Mo. 282; Warfield v. Lindell, 38 Mo. 578; Soper v. Paul, 47 Mo. 590. (6) The question of the minority of some of the plaintiffs was raised on the trial of the case. Suits by infants must be by guardian. Colvin v. Hauenstein, 110 Mo. 575. (7) Where there is an adverse possession there can be no constructive possession. Tiedeman on Real Property, sec. 695.

J. W. Sudduth and Fyke, Yates & Fyke for respondents.

(1) The judgment in the ejectment suit forever settled the rights and interest of the plaintiffs in the land, and was all that was necessary to enable plaintiffs to maintain an action in partition. Lambert v. Blumenthal, 26 Mo. 471; Halloway v. Halloway, 97 Mo. 628; Chouteau v. Gibson, 76 Mo. 38; Preston v. Rickets, 91 Mo. 320; St. Louis v. Lumber Co., 98 Mo. 613. (2) The cause of action did not accrue in this suit until the judgment was rendered in the ejectment suit. (3) It is wholly immaterial that some of plaintiffs were minors at the time this suit was brought; they had arrived at their majority before the suit was tried; moreover, the judgment was in their favor, and such being the case, appellants can not complain. Robinson v. Hood, 67 Mo. 660; Halton v. Towner, 81 Mo. 360. (4) The judgment rendered for rents and profits in the ejectment suit is no bar to a judgment for rents in this case. It does not appear that any part of that judgment has ever been paid. Of course there can be but one satisfaction. It was proper in this action to have an accounting of the rents and profits received by defendants in excess of their share. Halloway v. Halloway, supra; Medford v. Frazier, 58 Miss. 241; Scott v. Guernsey, 60 Barb. 163; Hannon v. Osborn, 4 Paige (N. Y.), 336.

Brace C. J. Barclay, J., concurring in the result.

OPINION

In Banc.

Brace, C. J.

This is an action in partition by the devisees and heirs at law of John Snell, deceased, against Brunetta Harrison and George W. Harrison, her husband, and the administrator of Harvey Harrison, deceased, in which the plaintiffs obtained judgment and order of sale, and the defendants appeal.

The land sought to be divided is one hundred and sixty acres situate in section 13, township 45, range 24, in said county, particularly described in the petition, in which it is alleged that the plaintiff, John R. Snell, acquired the legal title to the shares therein claimed by him and his coplaintiffs, as executor of the estate of the said John Snell, deceased, and that he holds the same as tenant in common with the said Brunetta, in trust, for the benefit of said estate, and of the devisees of said testator.

I. This land has been in litigation for nearly twenty years, in the course of which time two of the suits have reached this court and are reported, the first in 83 Mo. 651, and the other in 104 Mo. 158, where a full statement and history of the transactions of the parties may be found. This last suit was ejectment by John R. Snell against the Harrisons, in which the defendants set up their title and asked for equitable relief, and in which the respective rights and interests of the parties were finally adjudicated and settled, this court holding that the plaintiff Snell was entitled to recover the undivided seven tenths of the south eighty acres of said tract, and that Brunetta Harrison was entitled to the other undivided three tenths of said south eighty, and that said plaintiff Snell was entitled to the undivided seven thirtieths and the said Brunetta Harrison to the undivided twenty-three thirtieths of the north eighty of said tract, and remanding the cause to the circuit court with directions to enter judgment accordingly, after taking an account of the rents and profits.

Under this mandate, on the eighteenth of September, 1891, final judgment was rendered in the circuit court in favor of the said plaintiff John R. Snell for the recovery of his said interest in said real estate and for $ 1,650, the rents and profits thereof from June 1, 1880, "and that he have a writ of restitution for said real estate and execution for said sums of money found as rents and profits and for costs." Afterward, to wit, on the sixth day of August, 1892, this suit was instituted in the circuit court of Johnson county in which the court found the respective rights and interests of the parties to be as declared by this court in its decision aforesaid, and further found that the said undivided three tenths of the said Brunetta Harrison in the south eighty was subject to a mortgage in favor of the estate of Harvey Harrison, amounting to the sum of $ 607.28 and interest; that the said Brunetta has to the exclusion of the plaintiffs received all rents and profits from all of said real estate amounting to the sum of $ 1,364; that plaintiffs are entitled to partition of the premises, and that the same is not susceptible of division in kind without great prejudice to the interest of the parties, and decreed that said real estate be sold and the proceeds be distributed as follows:

"First. To the payment of costs and expenses of this proceeding. Second. That seven tenths (7-10) of the proceeds arising from the sale of the southeast quarter of the southwest quarter and the southwest quarter of the southeast quarter and seven thirtieths (7-30) of the proceeds arising from the sale of the northwest quarter of the southwest quarter and the northwest quarter of the southeast quarter, all in said section 13, aforesaid, be paid to plaintiffs to be divided among them according to their interests as set forth in the petition. Third. That out of three tenths (3-10) of the proceeds arising from the sale of the said southeast quarter of the southwest quarter of the southeast quarter of said section 13, there be paid to J. W. Harrison, administrator of the estate of Harvey Harrison, said mortgage debt, to wit, the sum of $ 607.28 with interest thereon at ten per cent from the fifth day of April, 1893, if three tenths (3-10) of the proceeds arising from the sale of the two last described forties be sufficient to pay the same. Fourth. That out of the remaining proceeds of the sale of Brunetta Harrison's interest in all said lands be paid the plaintiffs the sum of $ 1,364, the rents aforesaid, which is hereby declared to be a lien and charge upon the interest of said Brunetta Harrison. That the balance of the proceeds of such sale, after paying and satisfying the disbursements and distributive shares of plaintiffs, hereinbefore set out, be paid to Brunetta Harrison."

The defendant Brunetta Harrison, in her answer, denied plaintiff's ownership and tenancy in common with her of the premises sought to be divided, and pleaded adverse possession for more than ten years, and now insists that her plea ought to have been sustained, and the refusal of the circuit court to do so presents the controlling question in the case.

The undisputed facts are that the said Brunetta Harrison and her husband have been in the actual and exclusive possession of the premises ever since the plaintiff trustee acquired title in 1878, claiming title thereto under the several fraudulent conveyances described in, and set aside and annulled in, the foregoing suits in pursuance of the judgment of this court and the plaintiff John R. Snell has been continually striving through the courts to have these conveyances set aside and the true state of the title disclosed, and to obtain for the estate of his father whatever interest therein he might be entitled to. These efforts culminated in the final judgment of September 18, 1891, rendered in pursuance of the mandate of this court, by which for the first time, the respective...