Spicer v. Spicer

• Decision Date: 08 April 1913
• Citation: 249 Mo. 582,155 S.W. 832
• Parties: SPICER et al. v. SPICER.
• Court: Missouri Supreme Court

155 S.W. 832

249 Mo. 582

SPICER et al. v. SPICER.

Supreme Court of Missouri, Division No. 2.

April 8, 1913.

1. APPEAL AND ERROR (§ 665) — RECORD — ADDITIONAL ABSTRACT — CONCLUSIVENESS.

An additional abstract filed by respondent and not objected to by appellant must be assumed to correctly state the portion of the record shown thereby.

2. ADVERSE POSSESSION (§ 28) — "NOTORIOUS" POSSESSION — NECESSITY.

Where defendant, in a suit to determine title to real estate, the record title to which was in plaintiff, sought to establish title by adverse possession, plaintiff could, in rebuttal, show the absence of notoriety of defendant's adverse claim to negative knowledge on the part of plaintiff, the word "notorious," as used to establish adverse possession, meaning generally known and talked of; universally recognized; conspicuous; well, widely, or commonly known.

3. EVIDENCE (§ 324) — HEARSAY — REPUTATION — TITLE TO REAL ESTATE.

Title to real estate may not be proved by reputation.

4. TRIAL (§ 105) — RECEPTION OF EVIDENCE — LIMITATION TO SPECIAL PURPOSE — ARGUMENT OF COUNSEL.

Where evidence is admissible for a particular purpose only, a party may request an instruction limiting the use of the evidence to such purpose; and where he fails to do so he may not complain because the counsel of the adverse party, in his argument to the jury, laid undue emphasis on the evidence as showing the facts which it was inadmissible to prove.

5. ADVERSE POSSESSION (§ 112) — BURDEN OF PROOF.

The burden of proving title by adverse possession is on the party asserting it; and the mere fact that a party admitted that the adverse party, relying on adverse possession, had been in possession for 35 years did not relieve the adverse party from proving the other essential elements of adverse possession.

6. TRIAL (§ 192) — INSTRUCTIONS — ASSUMPTION OF FACTS.

Where, in a suit to determine title to real estate, plaintiff, to show record title, introduced in evidence deeds duly acknowledged so as to come within Rev. St. 1909, § 2818, and a certified copy of a will naming him as devisee, and the probate thereof, conforming to section 565, and the original record showing an order of the probate court directing the executor to take possession and rent the land, and defendant offered no contradictory evidence, the documentary proof was prima facie evidence, and the court did not err in assuming, in its instructions, that the documents were properly executed.

7. QUIETING TITLE (§ 47) — INSTRUCTIONS — EVIDENCE — APPLICABILITY.

Where, in a suit to determine title to real estate, defendant relied on adverse possession, and plaintiff, relying on record title, proved statements made by defendant during his occupancy to the effect that he was a tenant, and that he had paid rent, a charge that if the possession of defendant was that of a tenant he could not recover was justified by the evidence.

8. EXECUTORS AND ADMINISTRATORS (§ 439) — ACTIONS — PARTIES — QUIETING TITLE.

In a suit by a devisee to determine title to real estate, the executor, authorized by order of the probate court to take possession and rent the land, has such an interest in the land as to make him a proper party plaintiff, within Rev. St. 1909, § 2535, authorizing any person claiming any interest in real estate to sue to determine title.

9. JUDGMENT (§ 496) — COLLATERAL ATTACK — ORDER OF PROBATE COURT — PRESUMPTIONS.

Where an order of the probate court is regular on its face, the court, in a suit to determine title, will presume that the probate court acted regularly and with due authority.

10. EXECUTORS AND ADMINISTRATORS (§ 150) — MANAGEMENT OF REAL ESTATE — LEASE — STATUTES.

Rev. St. 1909, § 139, providing that no executor shall rent or control the real estate, unless the probate court shall order him to take possession of and rent the same for a term not exceeding two years, does not mean that in all cases the executor, at the expiration of two years from the date of an order, ipso facto loses control or interest in the land, but means that he shall have the possession and the right to rent the same for a term not exceeding two years.

11. STATUTES (§§ 174, 175) — CONSTRUCTION.

The court, in construing a statute, must, when consistent with reason, adopt the construction which will make it operative.

Appeal from Circuit Court, Platte County; Alonza D. Burnes, Judge.

Action by William M. Spicer, executor of William A. Spicer, deceased, and another against Benjamin F. Spicer. From a judgment for plaintiffs, defendant appeals. Affirmed.

This suit was instituted in the circuit court of Platte county, Mo., to determine and define the title to 80 acres of land, described as the W. ½ of the S. W. ¼ of section 21, township 52, range 33, in Platte county, Mo.

The petition alleges that William A. Spicer died testate on June 30, 1907, seised of an estate in fee simple in said land; that his will was duly approved and admitted to probate in the probate court of Clay county, Mo., on July 10, 1907; that by the terms of said will said real estate was devised to plaintiffs, William M. and George H. Spicer, share and share alike; that plaintiff William M. Spicer was named as executor in said will, and was by said probate court duly appointed as such executor and letters of administration issued to him; that on October 7, 1907, said probate court, being satisfied that it was necessary to rent said estate for the payment of debts, made an order of record requiring said executor to take possession of and rent said real estate, which order, the petition alleges, is still in force and effect; that defendant is in possession of said real estate, claiming some title, estate, or interest therein, but that said defendant has no title, estate, or interest in said property. The prayer of the petition asks the court to determine and decree the title, estate, and interest of the respective parties, and to adjudge and determine that said defendant has no title, estate, or interest in or to said property.

The answer first sets up a general denial, except that defendant admits that he is in possession of said land. For further defense and answer defendant alleges, first, that he is the owner in fee-simple title to said land; second, that he has been in the actual, adverse, open, hostile, exclusive, and continuous possession of said land, under claim of exclusive ownership, for and during the last 35 years, and that said William M. Spicer, as executor, is neither a necessary nor proper party to this suit; and that defendant should not in law or otherwise, be burdened with his pretensions as such alleged executor.

Plaintiffs filed a reply, admitting that defendant has been in possession of said land for a period of 35 years, and denying each and every other allegation made and contained in said answer.

The case came to trial December 20, 1909, and by agreement of the parties the same was tried before a jury, which trial resulted in a verdict and judgment in favor of plaintiffs, fixing the respective interests of plaintiffs as described in the petition. Defendant appealed.

Plaintiffs introduced in evidence recorded deeds and title papers, or duly certified copies of same, beginning with the United States patent, dated May 1, 1846, down to the warranty deed, dated March 25, 1865, from Thomas P. Hardesty and wife to the testator. The documentary proof thus adduced constituted a complete chain of conveyances from the government down to said William A. Spicer, except that no deed was introduced from Absalom H. Waller to one Thomas S. P. Cravens. This missing link in the chain of title was supplied by proof of the death of said Waller and wife, and a showing made as to the heirs of said Waller, and then a quitclaim deed from the Waller heirs to William M. and George H. Spicer, plaintiffs herein, and devisees, as aforesaid, in said will. This quitclaim deed recited that in 1858 said Waller had executed and delivered to said Cravens a deed conveying said land to Cravens, but that said deed was never recorded. A further showing in this regard was made to the effect that said Waller, as judgment creditor, had caused said land conveyed to Cravens to be levied upon and sold under execution in November, 1864, at which sale said Thomas P. Hardesty, testator's grantor, became the purchaser. Plaintiffs then introduced in evidence that portion of the will of William A. Spicer, deceased, showing the devise of said land to said William M. and George H. Spicer, plaintiffs herein. Plaintiffs were nephews of testator, and are also nephews of defendant; testator and defendant having been brothers.

Defendant's evidence tended to show that up to the time of the trial, and for 35 years prior thereto, defendant had been in continuous possession of the land, tilling the soil, harvesting the crops, and selling some of the surplus products; that about 19 years before the trial he had purchased fruit trees and set out an orchard on the farm; that he also purchased some barbed wire, had some posts made, and built a barbed wire fence along the north and west portion of the farm, facing the public highway, and put some woven wire fencing around the yard. He also planted some shade trees in the front yard, and shingled the dwelling house twice, the first time many years before the testator's death, and the second time after that occurrence. About 12 years before the trial defendant built a small log crib, with a shed extension, which was used as a buggy shed. Several years before the trial he built a henhouse and smokehouse on the premises. About 21 years before the trial he had the entire house plastered, and had also new floors put in the kitchen, once before and again after the death of the testator. Some of defendant's children testified that defendant had always sold the surplus products of the farm; that to their knowledge no rent was ever paid by defendant; that defendant always claimed to own the place by...