Stewart v. Stewart

• Decision Date: 05 June 1924
• Docket Number: No. 23613.,23613.
• Parties: STEWART v. STEWART et al.
• Court: Missouri Supreme Court

262 S.W. 1016

STEWART v. STEWART et al.

No. 23613.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Appeal from Circuit Court, Dunklin County; W.S.C. Walker, Judge.

Action by Samuel M. Stewart against J. P. Stewart, Jr., and others. From the judgment, plaintiff and defendants J. P. Stewart, Jr., Lucy Summers, and Nancy E. Lasswell appeal. Affirmed.

J. L. Fort, of Dexter, and W.E. Edmonds, of Bernie, for appellants.

T.R.R. Ely and R. J. Smith, both of Kennett, for respondents.

HIGBEE, C.

This is an action to determine title under section 1970, R. S. 1919. The amended petition is in the usual form. It avers in substance that plaintiff is in possession of part of the real estate therein described, and claims an interest in all of it; that the defendants claim some interest therein adverse to plaintiff's claim, but the nature or character of their claims is unknown to plaintiff, and cannot be set out in the petition. The answers admit that the defendants claim some interest, title, and estate in the premises, and join in the prayer of the petition.

Jonas P. Stewart, in his lifetime, was the owner of the lands in controversy, 1,000 acres in Dunklin county. The title was in his name at his death. He died testate in the year 1916. He had four children, two sons and two daughters, the appellants, by his first marriage. In June, 1901, he married a widow, Ruth Ann Chambers, who then had six children. By this marriage he had two children, John C. C. Stewart and David I. Stewart. David died without issue in 1918, after this suit was instituted, and his interest in the estate passed to his mother and brother and his half brothers and sisters. The amended petition was then filed, making the six children of Ruth Ann by her first marriage defendants. The widow had in due time filed her election to take a child's part under the statute.

At the conclusion of the evidence, the appellants joined in asking an instruction that the court find and adjudge that Jonas P. Stewart, Sr., prior to his second marriage, gave to the plaintiff a certain tract, containing 320 acres of this land, and to J. P. Stewart, Jr., another certain tract, containing 280 acres thereof; that they were severally the owners of said tracts, and same constituted no part of the estate of the deceased at his death; and that his widow and the other heirs had no interest in the 600 acres so given to said two sons. In other respects the facts are not in dispute.

The court found and adjudged that the deceased, prior to his second marriage, gave a certain 80 acres of said land to J. P. Stewart, Jr., and a certain 120-acre tract to Samuel M. Stewart, and adjudged that each was the owner in fee of his respective tract. The court further found that said J. P. Stewart made a will, which was duly probated, "devising 600 acres to various children, as hereinafter set out, leaving undisposed of and not devised by said will two hundred (200) acres; that said J. P. Stewart, deceased, made no provision in his will for the said Ruth Ann Stewart, nor was the name of the said Ruth Ann Stewart mentioned in said will." The judgment defines and adjudges the title, interest, and estate of the parties severally in the remaining 800 acres described in the petition. From this judgment the plaintiff and the three named defendants appealed.

Appellants assign as errors: (1) That the court erred in finding that the widow or other heirs had any interest in the 600 acres given by the deceased to his sons Samuel M. and J. P. Stewart, Jr.; (2) that the court erred in holding that the land so given to said two sons was affected by the will of said deceased; and (3) in not finding the facts and law in this case in accordance with the written request of appellants. It is not claimed that the judgment defining the respective interests of the parties is not in accordance with the facts as found by the court. The contentions may be reduced to one: That the findings of the court are unsupported by and contrary to the evidence.

The pleadings raise no equitable issue; the action, therefore, is one at law. Lee v. Conran, 213 Mo. 404, 111 S. W. 1151; Schneider v. Schneider, 284 Mo. 314, 326, 224 S. W. 1; Barron v. Wright-Dalton-Bell Anchor Store Co., 292 Mo. 195, 237 S. W. 786.

The statute requires the court to ascertain and determine the estate, title, and interest of the parties, respectively, in the real estate in controversy, and to define and adjudge by its judgment or decree the title, estate, and interest of the parties severally in and to such real property. The judgment meets all the requirements of the statute in this respect. If the findings of the court in respect to the several interests of the parties are supported by substantial evidence, they are as conclusive on appeal as to the facts as the verdict of a jury, and this court will not interfere. Lee v. Conran, supra, 415 (111 S. W. 1151); Hatton v. St. Louis, 264 Mo. 634, 646, 175 S. W. 888; Bufton v. Southern Express Co. (Mo. App.) 217 S. W. 630.

It is contended by appellants that the evidence shows that deceased, prior to his second marriage, gave certain described tracts, of 280 and 320 acres, respectively, to his two sons, and they asked instructions on the theory of adverse possession. The following excerpts will indicate the character of the evidence for the appellants:

John Summers testified:

"Mr. Stewart told me he had given Plummer (J. P. Stewart, Jr.) 80 acres west of the house and 160 down in the bottom. That was before his other woman died. J. P. Stewart has made improvements on the land. He has cleared some, deadened some, and 2 suppose built the house."

Ben Borders:

"I knew J. P. Stewart in his lifetime. He showed me the lines, when I and him were out in the field, and told me where Plummer's land was. He told me he gave that to him, Sam his, and the girls theirs. He told me he had given the land to Plummer."

Walter Nance:

"I knew J. P. Stewart; lived on his place six years. I rented the land from the old man, and paid him the rent. I am familiar with the land he owned, and the land in question. I tended one 40 the boys claim. I lived on John's place. I paid the old man the rent. That 40 is the northwest quarter of the northwest quarter of section 18, township 22, range 10. He tended to the renting of all the land in the bottom. Plummer lived on the west half of the northeast quarter of section 14. He rented all the rest of the land. Sam tended and lived on part of three 40's (describing them). Sam built a house about a quarter west from the old place and moved there. The old man told me he paid the taxes on the whole thing. He told me he had made a will; that at his death Sam would get seven 40's and Plummer five."

Albert Riddle:

"I lived on Stewart's place seven years. I rented the land from Mr. Stewart. He rented all except what the boys lived on. I never understood the boys claimed' any only what they tended."

J. P. Stewart, Jr.:

"I know the land claimed by my brother as a gift. Sam lives on the northwest quarter of the northwest quarter of section 13, township 22, range 9, called the Owens 40. It is reasonably worth $20 per acre. He has built a house, a small barn, put out a small orchard, and put fences on this 40. My father showed me the lines, and said, "This is Sam's." Father has had nothing to do with the place for the last 24 years. My father was in possession of the southwest southwest of 7-22-10 until 1910, and then Sam took possession. I claim 280 acres of land formerly owned by my father; claim I own it. My brother Sam claims 320 acres. Mrs. Lasswell claims 112 acres, and Mrs. Summers 108 acres, both in Stoddard county. I lived on the west half of the...