Stephens Cemetery, Est. 1864, Inc. v. Tyler

• Citation: 579 S.W.3d 299
• Decision Date: 23 July 2019
• Docket Number: No. ED 106418,ED 106418
• Parties: STEPHENS CEMETERY, EST. 1864, INC., et al., Respondents, v. Wilma Elizabeth TYLER, Appellant.
• Court: Missouri Court of Appeals

579 S.W.3d 299

STEPHENS CEMETERY, EST. 1864, INC., et al., Respondents,
v.
Wilma Elizabeth TYLER, Appellant.

No. ED 106418

Missouri Court of Appeals, Eastern District, SOUTHERN DIVISION.

FILED: July 23, 2019

FOR APPELLANT, Clinton B. Roberts, P.O. Box 430, 16 West Columbia, Farmington, MO 63640.

For Respondent, Andrea L. Smith, 715 West Rosehill, Kirkwood, Missouri 63122.

ROY L. RICHTER, Judge

579 S.W.3d 302

Wilma Elizabeth Tyler ("Appellant") appeals from the judgment of the Circuit Court of Madison County, in favor of Stephens Cemetery, Est. 1864, Inc., William Maurice Stephens ("Maurice"), Ernest Jerry Stephens, Steven Eugene Stephens, Jana Marie Cook, and Marcia Diane Braswell (collectively, "Respondents"). The circuit court quieted title of the cemetery in dispute to roughly two acres of land for Respondents, and also found title to Stephens Cemetery ("the Cemetery") was vested in the public. We reverse and remand.

I. Background¹

This case involves a family feud over the title to two to three acres of land. Both sides agree that a cemetery covering about one acre has been established, the dispute concerns an additional parcel of land claimed to be an expansion of the Cemetery. The history of this cemetery goes back to 1857 when Gabriel Jones Stephens, an American pioneer, acquired the land underlying and surrounding the cemetery from the U.S. Government. The first person buried in what would become the Cemetery was a 9-year-old boy, buried in 1864.

The mistakes made involving this cemetery – and there are many – date back to 1910, when the family patriarch attempted to create the "Stephens Grave Yard" without the benefit of an adequate survey or legal advice. On October 11, 1910, Thomas L. Stephens and Mary E. Stephens made their marks to convey a tract of land beginning at a stated corner ("the 1910 deed"), comprising a square of real estate 13 rods to a side. The 1910 deed recites, "this land is deeded to the Public for a Public Burying Ground and to be used as such, and is known as the Stephens Grave Yard"; the term "Stephens Grave Yard" is used in no other documents. The grantees were T.M. Matthews, H.M. Stephens, and E.D. Cook., as "Trustees for the public." There is no Trust document detailing the duties of the Trustees or outlining how they are to be replaced or their successors selected. Unfortunately, the legal description in this deed showed the property in the wrong place.

The next deed in the chain of title came on May 29, 1947 ("the May 1947 deed"). There, Margaret Rossell, Fred Brittan, and Mamie Brittan conveyed "3 acres, more or less" to C.C. Stephens ("Claude Stephens") and his wife Ruby Stephens for $1. Maurice, Claude and Ruby’s son, testified at trial that this three-acre tract was deeded to "expand the cemetery," because Claude Stephens was "running out of room." However, this deed makes no mention of the cemetery, or that the three acres conveyed were for cemetery purposes. It appears that the property described in this deed is at the heart of the current dispute.

The Brittans and Ms. Rossell again conveyed land to Claude Stephens and his wife Ruby on April 8, 1948 ("the April 1948

579 S.W.3d 303

deed"). This deed recites the location of the land to be conveyed, "excepting that part which has heretofore been conveyed to Claude Stephens, and further excepting that part which has heretofore been conveyed to the Trustees of the Stephens cemetery, on or about [December 20, 1947]." However, there is no record of any deed from December 1947 conveying any land to Claude Stephens.

On December 12, 1950, the same parties again conveyed property to Claude Stephens for $1 ("the 1950 deed"). This deed excepted "approximately 10 acres more or less heretofore conveyed by Warranty deed to [Claude Stephens] and Ruby E. Stephens and to the Trustees of the Stephens Cemetery." However, there is no record of any conveyance of approximately 10 acres by warranty deed. Further, there is no information as to who were then the trustees of the Cemetery, and no evidence that any party made a search for the trustees of the cemetery.

In 1989, Claude Stephens was in ill-health. On July 28, 1989, shortly before his death, Claude conveyed his 400-plus-acre farm to Anna Marie Combs ("Ms. Combs")² as Trustee of the "Claude C. Stephens Trust." The trust, however, was not dated until July 31, three days later. This deed does not mention the cemetery. The trust provided that, after the death of Ruby Stephens, the 400 acres would be divided into eight plots, and that the eight children would draw lots to determine which parcel each received. In April 1998, Craig Ruble was engaged to survey the 400-plus acres placed in the trust ("Ruble survey"), and all of the deeds for the eight parcels referenced the Ruble survey.

Subsequent transfers were recorded, and on February 20, 2002, Ms. Combs conveyed "40.7 acres, more or less," and "excepting therefrom approximately 1.0 acre in the northeast quarter of the northeast quarter ... used for cemetery purposes and known as the Stephens Family Cemetery"³ to Cora Lee Stephens (Cora Lee). Then, on November 5, 2009, Cora Lee conveyed that same land to Appellant ("the November 2009 deed"), again "excepting therefrom approximately 1.0 acre ... used for cemetery purposes and known as the Stephens Family Cemetery." It was shortly after this conveyance that many of the issues surrounding the disputed two-plus acres began.⁴

Since Claude’s death in 1989, Maurice took over his father’s duties with regards to the cemetery. Maurice took over the cemetery bank account, he was the contact for family members and the public concerning burials and grave site locations, he organized the maintenance, repairs, and improvements of the cemetery, and he organized the annual "cleanup day" for the cemetery. Further, on September 8, 2014, Respondents created "Stephens Cemetery Est. 1864," a non-profit corporation ("the Corporation") in charge of operating the cemetery. Along with individual Respondents, the Corporation is also a party to this suit.

Because Appellant does not reside in Missouri, Cora Lee was caretaker of the land she conveyed to Appellant in the November 2009 deed. In 2012, Cora Lee hired a surveyor to survey the cemetery boundaries, and after that survey, she

579 S.W.3d 304

erected a fence post with a "No Trespassing" sign at the foot of one of the graves within the disputed two acres. Cora Lee, and Appellant’s other agent, Ken Buchheit ("Buchheit"), also hung purple ribbons along County Road 305 inside the two acres under dispute.

On April 10, 2015, Respondents brought suit against Appellant in the Circuit Court of Madison County, asking the court to "determine that the boundary lines of Stephens Cemetery are as described in Paragraph #45 of the Petition ... that Plaintiff Stephens Cemetery, Inc.⁵ is the fee simple owner of the above-described 3.11 acres and to quiet title in said 3.11 acres in its name." The trial court ruled in favor of Respondents, finding "[the Cemetery] ... is a public cemetery and that title thereto is vested in the public, with all the rights and interest thereto the public has in a public cemetery," and further "that Plaintiff Stephens Cemetery, Est. 1864, its officers and assigns, is charged with maintaining and operating the Stephens Cemetery for the benefit of the public."

Appellant subsequently filed this appeal.

II. Discussion

Appellant raises six points on appeal. First, Appellant alleges the trial court lacked jurisdiction and this Court should dismiss Respondents' petition for the reason that Respondents' petition fails to state a claim upon which relief can be granted. Appellant reasons that the individual Respondents have no standing because they claim no interest in the real estate or the cemetery, but claim all of the interest in the real estate in the Corporation.

Second, Appellant argues the trial court erred in sustaining Respondents' Motion to Amend the Pleadings to Conform to the Evidence ("Motion to Amend") because the evidence that the Cemetery was conveyed to trustees was not tried by implied consent, but was an integral part of Appellant’s defense to Respondents' claim of adverse possession.

Third, Appellant claims the trial court erred in ordering in its judgment that the one-acre tract conveyed by the 1910 deed to trustees has title vested in the public because no defendant was named to represent the trustees or to represent the interest in the real estate of the original one-acre Stephens Cemetery. Further, in her Fourth point Appellant asserts that Respondents have no standing and are not the real party in interest for the reason that title to the Cemetery was granted to trustees who have neither been located, served, nor made parties to the litigation.

In her Fifth point on appeal, Appellant argues the trial court erred by vesting Appellant’s 2.11 acres of land in the public because there is "no legal theory by which the public can obtain title to Appellant’s property," and because the record is devoid of any facts that would support the trial court vesting title of Appellant’s property in the public. Similarly, in her Sixth point, Appellant argues the trial court erred in quieting title based on...