Swearengin v. Stafford

• Decision Date: 05 July 1916
• Docket Number: No. 17712.,17712.
• Citation: 188 S.W. 97
• Parties: SWEARENGIN et al. v. STAFFORD et al.
• Court: Missouri Supreme Court

188 S.W. 97

SWEARENGIN et al. v. STAFFORD et al.

No. 17712.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Appeal from Circuit Court, Douglas County; John T. Moore, Judge.

Action by John T. Swearengin and others against Elisha G. Stafford and others. From a judgment for plaintiffs, defendants appeal. Judgment affirmed in part and reversed in part, and cause remanded, with directions.

This is a proceeding to quiet title to real estate in which the plaintiffs had judgment, and the defendants have appealed. The land in controversy consists of 160 acres worth about $5 an acre. It was patented to E. W. Stafford in 1875, and constituted his homestead at the time of his death in 1876, as he at that time resided with his wife and eight children on the land. Two years after his death the widow married H. E. Swearengin, now deceased, by whom she had two children. She and those two children are the plaintiffs herein. The defendants Elisha G. Stafford and Loberta I. Mercer are children of E. W. Stafford. Defendants William I. Stafford and Charles H. Stafford are grandchildren of said E. W. Stafford by a deceased daughter, who married a Stafford. The petition alleges title in plaintiffs by 30 years' adverse possession, and also alleges that E. W. Stafford, the patentee, had in his lifetime conveyed said land to said H. E. Swearengin and that the defendants Elisha G Stafford and Loberta I. Mercer and the mother of the other two defendants sold all their interest in said land to said H. E. Swearengin, and that said Loberta I. Mercer made him a deed of conveyance of her interest in the land, which was never recorded, but was lost or destroyed, and that said Elisha G. Stafford and the deceased mother of the other two defendants had never made a deed of conveyance of their interest in the land. The petition does not allege when or for what consideration those parties sold the land as alleged, nor does it allege that any consideration was paid or agreed to be paid to them. The answer denies that the defendants, or that any one under whom they claimed, ever conveyed or agreed to convey the land as alleged in the petition. It also denies that the plaintiffs and those under whom they claim have had adverse possession of the land, and alleges that the plaintiff Margaret M. Swearengin is entitled to dower in said land as the widow of E. W. Stafford, and is entitled to the possession of the whole of said land until her dower is assigned. The answer prays that the court adjudge and declare the interests of the defendants in said land.

The evidence shows that Loberta I. Mercer and her husband made a deed of conveyance of her interest in the land to H. E. Swearengin, and that such deed was lost or destroyed without being recorded. The plaintiff Margaret M. Swearengin testified that her last husband purchased the interest of the mother of the defendants William I. Stafford and Charles H. Stafford about 22 years before the trial, but that she died without having made a deed. She stated that she did not know how much was paid the daughter for the land. The defendant Elisha G. Stafford admitted on the stand that he got a mare from his stepfather for his interest in the land, but testified that he was a minor at the time; that he had never made any deed; that his stepfather owed him for 200 bushels of corn, and that he told Mr. Swearengin that when he was paid for the corn he would pay for the mare. The evidence does not show that the alleged contracts of sale mentioned in the petition were made in writing. After the marriage of the widow to H. E. Swearengin they lived on the land in controversy until his death, a few years before the institution of the suit, except that they lived apart a few years before the death of Swearengin, she going to the home of a relative.

There was no evidence that E. W. Stafford ever conveyed the land to any one; but the trial court by its decree found that he conveyed it in his lifetime to H. E. Swearengin. The decree also found that all the defendants had sold their interests in said land to H. E. Swearengin, and that the plaintiffs and those under whom they claimed had held adverse possession thereof for 30 consecutive years, and had acquired the title to the land by adverse possession.

Fred Stewart, of Ava, and G. A. Watson, of Springfield, for appellants.

ROY, C. (after stating the facts as above).

We shall not discuss the question of the sufficiency of the pleadings, but will go at once to the merits.

I. No title by adverse possession has been acquired against the defendants. Under the act of the Legislature (Laws 1875, p. 60, § 1) on the death of E. W. Stafford, the homestead vested in the widow and minor children during her widowhood and their minority. The remainder, subject to those particular estates, vested in the heirs of E. W. Stafford. Of course adverse possession could not run against such remainder during the homestead estate of the widow. Roberts v. Thomason, 174 Mo. 378, 74 S. W. 624; Meddis v. Kenney, 176 Mo. 200, 75 S. W. 633, 98 Am. St. Rep. 496. The widow's right of quarantine also prevented the running of the statute of limitations against the heirs until her dower should be assigned. Brown v. Moore, 74 Mo. 633; Moran v. Stewart, 240 Mo. 462, 151 S. W. 439; Shoultz v. Lee, 260 Mo. 719, 168 S. W. 1146.

II. The finding of the trial court that E. W. Stafford had conveyed the land to H. E. Swearengin was error, for the reason that there is no evidence to support it.

III. The finding of the trial court that Loberta I. Mercer had conveyed her interest in the land by deed which was lost, but never recorded, is supported by the evidence, and was for that reason properly made.

IV. There was no sufficient part performance to take the oral contracts out of the statute of frauds. Payment of the purchase money in whole or in part, without anything further being done under the contracts, will not remove the statute. 6 Pomeroy's Eq. § 824; 2 Story's Eq. § 760; Fry's Specific Per. (5th Ed.) § 613 et seq.; Charpiot v. Sigerson, 25 Mo. 63; Galway v. Shields, 66 Mo. 313, 27 Am. Rep. 351; Purcell v. Miner, 4 Wall. 513, 18 L. Ed. 435; Neal v. Gregory, 19 Fla. 356; Biern v. Ray, 49 W. Va. 129, 38 S. E. 530; McCarty v. May (Tex....