Stephens v. Fowlkes

• Decision Date: 10 March 1936
• Docket Number: 33687
• Parties: Alvin Stephens and Myrtle Long, Devisees of Last Will of G. M. Stephens, v. Black Fowlkes, Zula Fowlkes and Nora Stephens, Appellants
• Court: Missouri Supreme Court

92 S.W.2d 617

338 Mo. 527

Alvin Stephens and Myrtle Long, Devisees of Last Will of G. M. Stephens, v. Black Fowlkes, Zula Fowlkes and Nora Stephens, Appellants

No. 33687

Supreme Court of Missouri

March 10, 1936

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Judge.

Reversed and remanded.

Von Mayes and C. E. Bragg for appellants.

(1) The judgment in this case is so clearly and palpably against the great weight of the evidence as to show such judgment was the result of passion and prejudice, and for this reason same should be reversed. The evidence to establish title by adverse possession was uncontradicted and it is impossible to conceive that the trial court disbelieved such evidence. It was not a result of a misconception of law, because the court gave defendants' instruction properly declaring the law of the case. It is manifest the trial court, without apparent cause or reason, disregarded the evidence, which can only be attributed to his passion and prejudice. While this court will not weigh the evidence to determine whether the decision of the trial court is right or wrong, it will weigh it to determine whether the judgment was due to passion or prejudice. 4 C. J., sec. 2854, p. 881, and sec. 2857, p. 887; Bays v. Merkle, 78 Mo.App. 383; Knapp, Stout & Co. v. Standley, 45 Mo.App. 264; Bruen v. K. C. Fair Assn., 40 Mo.App. 425; Bell v. Barrett, 76 S.W.2d 394. However, proof of adverse possession may be sufficient to make such possession a matter of law. Unless the trial court could have reasonably found from the evidence that Mrs. Stephens did not claim adversely, the judgment should be reversed. The burden of proof shifts to plaintiff when defendants make out a prima facia case. Indian Creek Land Co. v. Bradford, 82 S.W.2d 589. Where the evidence is undisputed, all one way, and of such cogency, that but one conclusion can be drawn by a rational mind, or where the thing proves itself, the court may deal with it as a matter of law. Cornovski v. St. Louis Transit Co., 207 Mo 263, 106 S.W. 51. The undisputed testimony in this case shows Mrs. Stephens, the mother of defendants, from 1910 to the time of her demise in 1931, while separated and living apart from her husband, the plaintiff, occupied this land, claiming at all times to own it, and denying that her husband had any ownership therein, and that her husband was during such time aware of such adverse claim and possession, and contributed nothing to her support. The wife, under such circumstances may acquire title by adverse possession. Warr v. Honeck, 8 Utah, 61, 29 P. 1117. Mrs. Stephens claimed her money paid for this property. If so, when her husband had the deed made alone to him, he held the same in trust for her. This claim was a claim of ownership. Where the wife's money pays for land, the law regards such land as her individual property. Phipps v. Markin, 227 S.W. 870; Manning v. Kansas & T. Coal Co., 181 Mo. 359, 81 S.W. 140. Nor is color of title necessary to acquire title by adverse possession of the land actually occupied. In this case all the land was in the actual possession of Mrs. Stephens, being under fence and used solely by her for her own use. 2 C. J., sec. 497, p. 230; DeGraw v. Taylor, 37 Mo. 310; Baker v. Thompson, 214 Mo. 500; Davis v. Dawson, 201 S.W. 524; Cullen v. Johnson, 325 Mo. 253. (2) Mrs. Zula Fowlkes, daughter of Mrs. Stephens, deceased, who claimed under her mother, the plaintiff, her father being alive, was a competent witness, as to conversations between her father and mother, or statements made by either outside of the presence of the other. She does not claim under her father. McKee v. Downing, 224 Mo. 115, 124 S.W. 7; Swope v. Ward, 185 Mo. 316, 84 S.W. 895. Declarations of ownership, coupled with possession, are the strongest proof of adverse possession and are always admissible. Texas Railroad Co. v. Broom, 114 S.W. 655. It would be a solecism to say such a party was required to show that the possession was under a claim of right and to say that evidence he had asserted such a claim of right, was not admissible. Swope v. Ward, 185 Mo. 316. Therefore, the court committed reversible error in excluding material evidence offered by defendants as to the acts or declarations of Mrs. Stephens with reference to her ownership of said land.

Ward & Reeves for respondents.

(1) "The settled rule of practice in this State is that the failure of a defendant to question the sufficiency of the evidence by demurrer or otherwise, followed by a joinder with the plaintiff in submitting the cause to the jury by instructions amounts to an admission on the part of defendant that the evidence made a case for the jury. Carroll v. Young (Mo. App.), 267 S.W. 436, 439." Williams v. St. Louis Pub. Serv. Co., 73 S.W.2d 201, 335 Mo. 341. "Defendant appellant is not in a position to assert that plaintiff failed to make a case for the jury where he conceded otherwise by joining in submitting the case without demurring to the evidence." Hart v. Brown, 216 S.W. 552; Creek v. Railroad Co., 293 Mo. 541. "Where a defendant at the close of all the evidence offers no demurrer, but joins without objection in submitting the case to the jury, this is an admission that there was sufficient evidence to justify such submission. Boone County Lbr. Co. v. Niedermeyer, 187 Mo.App. 180, 173 S.W. 57;" Carroll v. Young, 267 S.W. 439; Bell v. Fayette, 296 S.W. 1047; Peoples Bank of Queen City v. Aetna Cas. & Surety Co., 225 Mo.App. 1113, 40 S.W.2d 535. (2) When a common source of title was admitted as well as the introduction of mesne conveyances to plaintiff from such common source the plaintiff made a prima facie case and the burden of proof then shifted to defendants to defeat plaintiffs' title and establish their affirmative defenses. "Under the pleading, it being conceded that the plaintiff was owner of the record legal title to the land, the court held, and properly so, that the burden of proof rested upon the defendants, to establish the title and defense stated in the answers." Whitworth v. Barnes, 256 Mo. 469. (3) The defendant in this case offered a declaration of law and by doing so abandoned every other theory of their case except the one of adverse possession submitted in defendants' only requested instruction, and appellants are precluded from urging in this court any equitable ground of recovery which they abandoned below; and as the only question on the theory below upon which defendants submitted their case, was one purely of law, as distinguished from equity, and upon which the defendants had the burden of proof, the finding thereon by the trial court, sitting as a jury, precludes a review of the evidence of this appeal. Gannon v. Gas Co., 145 Mo. 502; Robinson v. Ramsey, 190 Mo.App. 206; St. Louis Union Trust Co. v. Hill, 283 Mo. 278; Falvey v. Hicks, 286 S.W. 385; Morrison v. Bomer, 195 Mo. 535; Morris v. Atlas Portland Cement Co., 323 Mo. 307; St. Louis-S. F. Ry. Co. v. Dillard, 328 Mo. 1160; Crowell-Spencer Lbr. Co. v. Hill, 242 S.W. 427; Brown v. Houghton Const. Co., 227 S.W. 137; Bubach v. Musick, 256 S.W. 116; Fed. Land Bank v. International Life Ins. Co., 260 S.W. 822. (4) Section 1723, Revised Statutes 1929, is not an absolute bar to all testimony from surviving party to contract, but only goes to extent of excluding testimony of survivor on questions that could be subject to contradiction by deceased party. Survivor not disqualified in general, but limited to contract between witness and deceased person. Jobe, Admx. v. Buck & Moseley, 224 Mo.App. 621; Elsea v. Smith, 273 Mo. 396; Robertson Bros. v. Garrison's Est., 21 S.W.2d 202; Eaton v. Cates, 173 S.W. 950; Mann v. Balfour, 187 Mo. 290; Burns v. Polar Wave Ice & Fuel Co., 187 S.W. 147; Elsea v. Smith, 372 Mo. 396, l. c. 408; Bailey v. Kansas City, 189 Mo. 503; State ex rel. West v. Diemer, 255 Mo. 336; Dean v. Railroad, 199 Mo. 386.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is a suit to try and determine title and for ejectment involving about eleven acres of land adjoining Caruthersville in Pemiscot County. Defendants' claim is based on adverse possession. Trial by jury was waived and the court found for plaintiff, who has died since the trial. Revival has been had in the names of the devisees under plaintiff's will. Judgment was entered adjudging plaintiff to be the owner of the land and entitled to possession. Defendants have appealed therefrom, and contend here that "adverse possession was shown as a matter of law."

The land was conveyed by three separate deeds (five acres, 1896 six acres, 1897 and one-half acre, 1901) to G. M. Stephens the original plaintiff and the father of all of the present parties hereto. There was a house and other improvements on the land in 1896, and Stephens and his wife lived there until 1910, when they separated. During that time Mr. Stephens set out an orchard of several acres of fruit trees and made other improvements. There was a divorce suit between Mr. and Mrs. Stephens after 1910, which terminated without either of them being granted a divorce. Stephens went to live with his son Alvin, while Mrs. Stephens and two of their daughters, defendants herein, continued to live on the land in controversy here. The other daughter, Mrs. Long, was married prior to their separation. Mrs. Stephens died in 1931, and defendants' claim is that she had obtained title by adverse possession. The court, at their request, gave a declaration of law stating their right to recover upon this theory. Defendants also made the claim that the land was purchased with Mrs. Stephens' money but they had no proof to trace her money into it and did not request a declaration of law upon that theory of recovery. It is held that under married women's statutes a...