Snyder v. Elliott

• Decision Date: 09 January 1903
• Citation: 71 S.W. 826,171 Mo. 362
• Parties: SNYDER et al. v. ELLIOTT, Appellant
• Court: Missouri Supreme Court

71 S.W. 826

171 Mo. 362

SNYDER et al. v. ELLIOTT, Appellant

Supreme Court of Missouri, Second Division

January 9, 1903

Appeal from Cass Circuit Court. -- Hon. W. W. Wood, Judge.

Affirmed.

R. T Railey for appellant.

(1) Plaintiffs having alleged specifically that they claimed title through Sarah W. Snyder, must be confined in this action to said specific charge, and can not recover upon any other alleged cause of action not pleaded. Feary v Railroad, 62 S.W. 457; Bartley v. Railroad, 148 Mo. 139; Chitty v. Railroad, 148 Mo. 74; McCarty v. Hotel Co., 144 Mo. 402; Huston v. Tyler, 140 Mo. 263; McManamee v. Railroad, 135 Mo. 447; Hite v. Railroad, 130 Mo. 136; Waldhier v Railroad, 71 Mo. 518. There is no evidence in the record tending to show that Sarah W. Snyder ever executed any deed or will in respect to the fifty-seven acres of land in controversy. She died in February, 1874. The will relied on by plaintiffs, conveyed to Sarah W. Snyder a life estate, with power of disposition, and not a feesimple estate. Hurst v. Von de Veld, 158 Mo. 246; Walton v. Drumtra, 152 Mo. 505; Briant v. Garrison, 150 Mo. 655; Cross v. Hoch, 149 Mo. 338; Cornwell v. Wulff, 148 Mo. 573; Cornwell v. Wulff, 148 Mo. 553; McMillan v. Farrow, 141 Mo. 55; Cornwell v. Orton, 126 Mo. 368; Schorr v. Carter, 120 Mo. 409; Redman v. Barger, 118 Mo. 574; Lewis v. Pitman, 101 Mo. 292; Munro v. Collins, 95 Mo. 36; Harbison v. James, 90 Mo. 424; Bean v. Kenmuir, 86 Mo. 666; Russell v. Eubanks, 84 Mo. 85; Carr v. Dings, 58 Mo. 400; Straat v. Uhrig, 56 Mo. 482; Chiles v. Bartleson, 21 Mo. 344. (2) Under the will of Martin D. Snyder full and plenary power was given Sarah W. Snyder to dispose of the two hundred and eighty acres of land which he left by dividing it as she deemed proper among the lawful heirs of herself and deceased. She likewise had the power to convey to Josephine, Elizabeth, and Henry C. Snyder, each, the respective forty acres taken by them, without even acknowledging a deed therefor. Having conveyed a forty to each of said parties, in full of the respective interest of such parties, her deeds to them respectively passed a good title, whether they were properly acknowledged or not. Harrington v. Fortner, 58 Mo. 473; Wilson v. Kimmel, 109 Mo. 263. Said Josephine, Elizabeth, and Henry C. Snyder, each having received a deed in due form for a separate forty acres of said land, and having receipted in their respective conveyances, to Sarah W. Snyder, and the other heirs, as against any further interest in said real estate, and all the other heirs having likewise quitclaimed to the parties aforesaid, their interest in the respective forties taken by them, and each of the said parties, to-wit, Josephine, Elizabeth, and Henry C. Snyder, having taken possession of their respective forties, until they were sold or disposed of, each and all of said named parties are estopped from claiming any further interest in said testator's estate, whether the deeds to them, as aforesaid, were properly executed or not. Cochran v. Thomas, 131 Mo. 277; Fischer v. Siekmann, 125 Mo. 179; Clyburn v. McLaughlin, 106 Mo. 524; McClanahan v. West, 100 Mo. 322. (3) If Armelda Elliott had been dissatisfied with the arrangement aforesaid, and had any power to set the same aside after it had been consummated, as aforesaid, then her right to so move accrued in April, 1874. She then had the right to bring a suit in equity against her husband to cancel said deed and to have her legal rights in respect to the property in controversy restored. Reed v. Painter, 145 Mo. 341; Darrier v. Darrier, 58 Mo. 222; Walter v. Walter, 48 Mo. 140. (4) The statute of limitations having commenced to run in favor of said defendant in April, 1874, gave him a good title to the property in controversy when his wife died in 1888. Under no circumstances, therefore, could these plaintiffs maintain the present action, as they failed to institute proceedings within three years from the death of Mrs. Elliott. Reed v. Painter, 145 Mo. 342. Under the general issue defendant had the right to rely on the three-year statute of limitations. Hedges v. Pollard, 149 Mo. 223; Bird v. Sellers, 113 Mo. 588.

A. A. Whitsitt for respondents.

(1) No estate by the entirety is created by a deed in partition, which by direction of a co-parcener is made to himself and wife, for no title passes by a partition deed, the title is already in the part owner and the partition deed merely designates his share by metes and bounds, and allots it to be held by him in severalty. The deed confers no new title or additional estate in lands. It is an estoppel between the part owners to the extent of the shares set apart and allotted in severalty. Jones, Vendors and Purchasers in Conveyancing, sec. 1799; Harrison v. Ray, 108 N.C. 215; Yancey v. Radford, 86 Va. 638; Dooleyey v. Raynes, 86 Va. 644; Taylor v. Birmingham, 29 Pa. St. 306. (2) The rights and interests of parties in real estate are not determined by our partition statute. The statute only affords a procedure by which those rights, as they exist under the general law, may be ascertained and partition made with reference thereto. Whitsett v. Wamack, 159 Mo. 14. (3) At the death of Armelda Elliott, January 1, 1888, her brothers and sisters inherited her property. R. S. 1889, sec. 2100; R. S. 1899, sec. 659; Hunter v. Bank, 158 Mo. 271; Ozark Co. v. Tate, 109 Mo. 265; Bensick v. Cook, 110 Mo. 182; Gregory v. McCormick, 120 Mo. 663; Weil v. Simmons, 66 Mo. 619; Cruchon v. Brown, 57 Mo. 38; Mueller v. Kaessman, 84 Mo. 330; Crispan v. Hannovan, 86 Mo. 169; Lamb v. Railroad, 33 Mo.App. 492. (4) No one is barred by adverse possession unless he has a right of entry. Ramsey v. Otis, 133 Mo. 85; Keith v. Keith, 80 Mo. 125; Smith v. Patterson, 95 Mo. 525. (5) In ejectment, when parties admit a common source of title, it is sufficient for the plaintiff to deduce his title from the common source. Huff v. Morton, 94 Mo. 405. (6) When, in an action of ejectment, the defendant sets up an equitable defense, there is but one issue to be tried, which is that presented by the equitable defense, and which the defendant must establish, or fail in his defense. Schuster v. Schuster, 93 Mo. 438; Ledbetter v. Ledbetter, 88 Mo. 60. The petition in this case is sufficient to entitle the plaintiffs to recover. R. S. 1899, sec. 3058. The facts shown by plaintiffs entitle them to recover. R. S. 1899, sec. 3060.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is an action of ejectment in statutory form for certain lands in Cass county, to-wit, the east half of lots 1 and 2 of the northwest quarter of section 2 of township 44, range 31, except a tract of land conveyed by Joseph D. Campbell and wife to Legal D. Fulton, described by metes and bounds, and containing twenty-three acres and a fraction. Ouster is laid as of January 1, 1888. The action was commenced November 11, 1897.

The answer is a general denial, a plea of the statute of limitations, and a special plea that on April 28, 1874, Henry C. Snyder and wife, Frances Fletcher and husband, and Darthula Fulton and husband, in a voluntary partition, sold, partitioned and conveyed to defendant and his then wife, Armelda Elliott, the real estate described in the petition; that said property was conveyed to said defendant Elliott, and his wife Armelda, as tenants by the entirety. That said Armelda Elliott died about the first day of January, 1888, and defendant as survivor became the owner of said real estate.

The answer further states that on or about July 28, 1856, Joel D. Campbell was the owner in fee simple of said real estate and on said date by deed conveyed said lands to Martin D. Snyder. That on or about January 7, 1858, said Martin D. Snyder, by his last will, duly recorded in the office of the probate court of said county, devised said lands to Sarah W. Snyder, his wife, for her natural life, and at her death to be disposed of as she might deem proper amongst the lawful heirs of her body by said testator. That said Martin D. Snyder was therefore the common source of title. That Sarah W. Snyder died in 1874, without having made any disposition of said lands under her power of appointment in said will. That at his death said Martin D. Snyder left as the children and lawful heirs of his body by his said wife Sarah W. Snyder, Elizabeth N. Moore, Josephine Moore, Armelda Letton, who afterward intermarried with and became the wife of defendant, Ira Elliott, Henry C. Snyder, Darthula Fulton, and Frances M. Fletcher. That upon receiving said deed in partition the defendant and his wife Armelda entered into possession of the real estate described in the petition under the said conveyance, which was executed April 30, 1874, and recorded in book 16, at page 403, in the recorder's office of said county, and ever since that date defendant in conjunction with his wife has held the open, notorious, continuous, uninterrupted and adverse possession of said real estate and claimed the same by right of the deed and partition aforesaid, until the death of said Armelda on January 1, 1888; that since said date defendant, as survivor under a claim of right, has been in the open, notorious, continuous, uninterrupted and adverse possession of said real estate, and has made lasting and valuable improvements thereon, with the knowledge of plaintiffs, of the value of $ 600, and has paid the taxes thereon. The answer then set forth the various partition deeds and averred that by reason thereof the plaintiffs had no interest in the lands sued for.

The reply admits the answer correctly named the heirs; that Martin D. Snyder, and Sarah W. Snyder were the common source of title and they claim through said Sarah Snyder, and denied each and every other...