Spencer v. O'Neill

• Decision Date: 10 February 1890
• Citation: 12 S.W. 1054,100 Mo. 49
• Parties: Spencer et al., Appellants, v. O'Neill
• Court: Missouri Supreme Court

12 S.W. 1054

100 Mo. 49

Spencer et al., Appellants, v. O'Neill

Supreme Court of Missouri

February 10, 1890

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Reversed and remanded.

S. N Holliday for appellant.

(1) Under the deed to Bayha, trustee for Mary Catherine O'Neill, John O'Neill, at his wife's death, took a life-estate, as tenant by the curtesy, and his possession was in his own right. (a) When Mary Catherine O'Neill died, the estate of Charles Bayha, the trustee, became executed in Mary G. O'Neill, subject to the life-estate of her father, John O'Neill, as tenant by the curtesy. Roberts v. Mosely, 51 Mo. 282; Baker v Nall, 59 Mo. 265; Tremmel v. Kleiboldt, 75 Mo. 255. (b) The court erred in excluding the record in suit 59,045, offered in evidence by the plaintiffs. The issue of the statute of limitations was decided adversely to John O'Neill, in suit number 59,045, and the defendant claiming under John O'Neill, and this case being tried on exactly the same evidence as case 59,045, that question was res adjudicata. Foster v. Evans, 51 Mo. 39. (c) Mary Catherine O'Neill's trustee, Bayha, under the deed to him read in evidence, held the fee simple title for the use, and subject to the disposal, of said Mary Catherine O'Neill. Green v. Sutton, 50 Mo. 190; Ruby v. Barnett, 12 Mo. 3; Reinders v. Koppelmann, 68 Mo. 482; Bryant v. Christian, 58 Mo. 98; Tremmel v. Kleiboldt, 75 Mo. 255; Jackson v. Robbins, 16 Johns. 288. (d) The conveyance of a fee simple title to Bayha, trustee, for the use and absolute disposal of Mary Catherine O'Neill, did not debar her husband, John O'Neill, from curtesy in the lands of which she died in actual possession. Tremmel v. Kleiboldt, 75 Mo. 255; Tiedeman on Real Property, secs. 92, 105. (e) John O'Neill, having a life-estate, was entitled to the possession of the premises for his life, and could have no adverse possession. (2) Even though John O'Neill had had no life-estate in the premises, his possession was not adverse. (3) As there are no disputed facts, this court should render judgment here for the plaintiffs for possession, and for damages at fifty dollars per month, the admitted monthly value from the institution of this suit, June 11, 1884.

W. C. & James C. Jones for respondent.

(1) The deed from Elkanah English and wife to the trustee of John O'Neill's first wife, Mary Catherine O'Neill, dated August 4, 1859, vested in Mary Catherine O'Neill an estate for life, with remainder over to the heirs of her body by John O'Neill begotten, which heirs, under the law of this state in force at that time, took as purchasers, and not by inheritance. Tiedeman on Real Prop., sec. 48; 1 Washburn Real Prop., p. 102; Phillips v. LaForge, 89 Mo. 72; Burris v. Page, 12 Mo. 359; R. S. 1855, p. 355. The power of disposal annexed to a life-estate is merely a power, and if not exercised does not affect the quantity or extent of the estate already granted. Reinders v. Koppelmann, 68 Mo. 490; Jecko v. Taussig, 45 Mo. 170; Pendleton v. Bell, 32 Mo. 100; Russell v. Eubanks, 84 Mo. 83; Ruby v. Barnett, 12 Mo. 7; Bryant v. Christian, 58 Mo. 102; Green v. Sutton, 50 Mo. 186. (2) John O'Neill's first wife, Mary Catherine O'Neill, having only a life-estate, John O'Neill had no estate by the curtesy in the property. Phillips v. LaForge, 89 Mo. 72; Tiedeman Real Prop., secs. 101-110. (3) Therefore, when Mary Catherine O'Neill died, October 5, 1871, the right to the possession of the property immediately vested in Mary G. O'Neill (sole heir and daughter of Mary Catherine O'Neill by said John O'Neill). Phillips v. LaForge, supra. (4) Inasmuch as the plaintiffs (and those through whom plaintiffs claim, John O'Neill Spencer and Mary G. O'Neill) were not seized or possessed of the premises in question within ten years before the commencement of this action (which is for the recovery of lands and for the recovery of the possession thereof), the same cannot be commenced, had or maintained by them. The possession of the defendant, and those through whom she claims, was all that the law requires, actual, adverse, open, hostile, exclusive and continuous. (5) Mary G. O'Neill was under no disability to assert her right to the property at the death of her mother, when the right to possession vested, and her subsequent disability, created by her marriage with James A. Spencer, did not stop the statute of limitations, which had already commenced to run. Nor did the minority of her son, upon whom the descent was cast at her death, interfere with the continued running of the statute of limitations. Landes v. Perkins, 12 Mo. 239; Smith v. Newby, 13 Mo. 160; Rogers v. Brown, 61 Mo. 187. (6) The defense in this case and defense in the case of Spencer v. O'Neill, number 59,045, are not identical, and the question of adverse possession is not, therefore, res judicata. Kimmel v. Bena, 70 Mo. 52; Gibson v. Chouteau, 76 Mo. 38; Ekey v. Inge, 87 Mo. 493. (7) The question whether the possession of John O'Neill was sufficient to constitute adverse possession was a question of fact. This question of fact having been passed upon by the circuit court, sitting as a jury, the supreme court will not disturb its finding, if there is any evidence at all upon which to base that finding. That this is a question of fact will hardly admit of argument. Angell on Limitations, sec. 390; Bradstreet v. Huntington, 5 Peters [U. S.] 402. There being evidence in the case to sustain the court in its finding, your honors will not attempt to pass upon its weight. Baum v. Fryrear, 85 Mo. 154; Thies v. Garbe, 88 Mo. 149; Reid v. Ins. Co., 58 Mo. 429 and 430; Charles v. Patch, 87 Mo. 462; Bank v. Armstrong, 4 S.W. 725, 726; Anderson v. Griffith, 86 Mo. 549; State to use v. Brokerage Co., 85 Mo. 411; Rothschild v. Railroad, 4 Southwestern Rep. [Mo.] 418; Foster v. Evans, 51 Mo. 40.

Sherwood J. Barclay, J., not sitting.

OPINION

Sherwood, J.

-- Ejectment for lots 31 and 32 in city block 466, east, 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 fifty dollars per month, and that Jno. O'Neill, the husband of Mary Catherine O'Neill, and afterward 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 Catherine 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 Catherine 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 Catherine 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 Catherine 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 Catherine 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 Catherine 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 Catherine 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 Catherine 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,...