Spencer v. O'Neill

• Citation: 100 Mo. 49,12 S.W. 1054
• Parties: SPENCER et al. v. O'NEILL.
• Decision Date: 10 February 1890
• Court: United States State Supreme Court of Missouri

12 S.W. 1054

100 Mo. 49

SPENCER et al. v. O'NEILL.

Supreme Court of Missouri.

February 10, 1890.

ADVERSE POSSESSION.

Where real estate is conveyed in trust for a married woman, to the sole use of her and her heirs by her present husband, (defendant,) and they have a daughter born to them, after which the wife dies, and defendant remains on the premises with the daughter, who marries, each paying part of the expenses of housekeeping for three years, when the daughter dies, and her husband continues to live on the premises five years without paying board, the possession of defendant, after the daughter's husband leaves, will not bar a recovery of the premises in an action by the husband and heirs of the daughter, there being nothing to show that such possession was adverse.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Ejectment for lots 31 and 32, in city block 466 E., of the city of St. Louis. The property fronts on Autumn street. Action brought June 11, 1884. Answer, a general denial. Under stipulations, admissions were made that the defendant was in the possession of the premises when suit was brought, and that the monthly value thereof was $50 per month, and that John O'Neill, the husband of Mary Catharine O'Neill, and afterwards of Magdalena C. O'Neill, died in March, 1884. Plaintiffs offered in evidence a deed from Elkanah English and wife to Charles Bayha, as trustee for Mary Catharine O'Neill, dated August 4, 1859, and recorded in the city of St. Louis on August 5, 1859, which said deed was admitted to be duly acknowledged and recorded, and conveyed the lots in controversy in this suit. The habendum clause of said deed is as follows: "To have and to hold said lots of ground, together with all and singular the privileges and appurtenances thereto belonging, or in any manner appertaining, unto the said party of the second part, his heirs, assigns, successors in trust, for the sole use, benefit, enjoyment, and behoof of the said Mary Catharine O'Neill and her heirs by her husband, the said John O'Neill, begotten, and to his assigns; and, in the event of the death of the said Mary Catharine O'Neill without heirs as aforesaid, for the use, benefit, enjoyment, and behoof of her husband, John O'Neill; said property to be held by the said party of the second part, for the purposes above set forth, entirely free from all control, restraint, and interference on the part of the said John O'Neill. The said Mary Catharine O'Neill to have, hold, use, enjoy, and occupy the exclusive and undisturbed possession of said lots, and the appurtenances thereunto belonging, with full power, without the intervention in any manner whatsoever of her said husband, to direct the sale, lease, or other disposal of the same, at her own will and pleasure, and to receive for her own use and benefit the proceeds of such sale, and all rents and profits arising from the lease or other disposal of the same. The said party of the second part holding said real estate subject at all times to the direction, in writing, under her hand and seal, by her acknowledged, of the said Mary Catharine O'Neill, her heirs, as aforesaid, or her assigns, as to the disposal of said lots, whether by lease, conveyance in fee, assignment or transfer of this trust or otherwise, and without the intervention of her husband, the said John O'Neill, in any manner whatsoever; and the said Mary Catharine O'Neill shall have power, at any time hereafter, whenever she may for any cause whatever deem it necessary or expedient, by an instrument in writing, under her hand and seal, by her acknowledged, to nominate and appoint a trustee or trustees in the place and stead of the party of the second part above named; which trustee or trustees, or the survivor of them, or the heirs, assigns, or successors of such survivors, shall hold the said real estate upon the same trust as above recited, and subject to the direction and control of the said Mary Catharine O'Neill, in like manner as above provided, and upon the nomination and appointment of such trustee or trustees, the estate in trust hereby vested in the party of the second part shall thereby be fully transferred to and vested in the trustee or trustees so appointed."

The plaintiffs read in evidence the deposition of James A. Spencer, taken in another suit: "I am James A. Spencer, the plaintiff in this suit. I married Mary G. O'Neill, daughter of John O'Neill and Mary Catharine O'Neill, May 28, 1873. Mary G. O'Neill was then living in St. Louis, on Seventeenth street, between Market and Walnut, with her parents. I had one child by Mary G. O'Neill, born June 9, 1874, and named John O'Neill Spencer. My wife died June 22, 1874, and my son, John O'Neill Spencer, died December 2, 1874. My wife was born May 20, 1849, and was twenty-four years of age when I married her. After we were married I moved to Eleventh street, between Market and Clark avenue, and lived there until December, 1873. John O'Neill was at that time a traveling man, and when in St. Louis he stopped there. In December, 1873, my wife, myself and child (by a former marriage) moved into one of the houses sued for in this case, at the request of Mr. O'Neill. I remained in the house until the first part of 1879. My son by my first marriage left in 1878. The expenses of housekeeping were borne in part by Mr. O'Neill and in part by myself. Part of the time I was out of employment, — off and on, — and Mr. O'Neill paid the expenses then. I paid the largest portion of the expenses. My child, John O'Neill Spencer, during its life,...