Tidwell v. Waldrup

• Decision Date: 10 June 1941
• Docket Number: 36672
• Parties: E. M. Tidwell v. Lucy Waldrup, Appellant
• Court: Missouri Supreme Court

151 S.W.2d 1092

347 Mo. 1028

E. M. Tidwell v. Lucy Waldrup, Appellant

No. 36672

Supreme Court of Missouri

June 10, 1941

Appeal from Bollinger Circuit Court; Hon. Taylor Smith Judge.

Affirmed.

Homer F. Williams and Spradling & Strom for appellant.

(1) Although the respondent filed a suit in ejectment, yet when appellant answered and in the answer set up an equitable defense asking affirmative relief, to-wit, a bill in equity to quiet and determine the title to the real estate covered by the ejectment suit and asked equitable and injunctive relief, the case was thereby transferred from the law side of the docket to the equity side for the trial and disposition of the cause of action in equity. Miller v Railroad, 162 Mo. 435; Betzler v. James, 227 Mo. 391. (2) In the answer the appellant set up a cause of action to quiet and determine the title under Sections 1520 and 1523, Revised Statutes 1929. Although such actions are ordinary proceedings at law, yet when there is a prayer for affirmative equitable relief, such as a prayer for an injunction at the close of the pleadings, the cause is thereby made a proceeding in equity. Jacobs v Waldron, 298 S.W. 773, 317 Mo. 1133; Kimberlin v. Roberts, 107 S.W.2d 26. (3) Ruth Hitt, being a minor in 1920, when the statute began to run, had three years after she reached the age of 21, in 1932, within which to sue. Gray v. Yates, 67 Mo. 601; Ogle v. Hignet, 161 Mo. 47; Torwegge v. Burns, 239 S.W. 124.

C. P. Damron for respondent.

(1) "There are five essential elements necessary to constitute an effective adverse possession; (a) The possession must be hostile and under a claim of right; (b) it must be actual; (c) it must be open and notorious; (d) it must be exclusive; and (c) it must be continuous." Swope v. Ward, 185 Mo. 324; 2 C. J. S., secs. 53, 56, 57, pp. 570, 574, 575; Patton v. Smith, 171 Mo. 241. (2) There is no agreed boundary line in this case. "It takes an agreement to make an agreed line." Quisenberry v. Stewart, 219 S.W. 627; Courtner v. Putnam, 30 S.W.2d 131.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

E. M. Tidwell, on August 7, 1937, instituted an ejectment proceeding against Lucy Waldrup to recover possession of 5 1/2 acres of land in Bollinger County, Missouri. Mrs. Waldrup answered alleging lawful possession and, alleging title by adverse possession (see Secs. 1002, 1004, R. S. 1939, Mo. Stat. Ann., pp. 1121, 1126 secs. 850, 852), set up a cross-action in equity to quiet and determine the title to said real estate. She appealed from a judgment for plaintiff.

Benjamin L. Hitt is the common source of title. He died in 1919, leaving a widow, two daughters and a son surviving. A portion of his real estate was partitioned in kind in 1920. This controversy involves a part of the lands partitioned to Mr. Hitt's two daughters -- Edna and Ruth. At the time of Mr. Hitt's death Edna was Mrs. Weisenborn and Ruth was a minor of eight. The brother, older than Ruth, was also a minor. The court appointed three commissioners, one a surveyor, to partition the real estate. They, according to their report and a plat filed therewith, set off to Ruth Hitt 60 acres of land, the west 20 acre tract of which lay immediately east of and joined the land set off to Edna Weisenborn. After deciding how the land was to be partitioned, the commissioners, acting through the surveyor, undertook to stake out the several parcels. In so doing they placed the north and south stakes along the west side of Ruth Hitt's 20 acre tract in such manner as to take from the west side thereof and add on to Edna Weisenborn's lands the 5 1/2 acres in controversy. A fence, conforming to the stakes, was erected in 1920, and ever since the owners of the respective tracts have held possession of and cultivated the lands on their respective sides of said fence. Mrs. Weisenborn testified that her husband soon discovered she had more land than was allotted to her; that it was discussed with her sister; that she intended to adjust the matter when her sister became of age and that she did not and had no intention of claiming more land than was partitioned to her. Mr. and Mrs. Weisenborn, in August, 1925, executed and delivered a deed of trust on the land partitioned to Mrs. Weisenborn to L. H. Null, as trustee, to secure an indebtedness due defendant. In 1928 Ruth Hitt married William Jones. Mr. Jones cultivated the land and discovered that his wife's land was short in acreage. Mrs. Jones testified that the matter was discussed with Mrs. Weisenborn; that Mrs. Weisenborn said she and her husband had discussed it and that they would straighten it out. The Weisenborn deed of trust was foreclosed and under a trustee's deed, dated November 9, 1929, defendant became the record owner of the land originally partitioned to Edna Hitt Weisenborn. About 1936 Mrs. Jones and her husband conveyed Mrs. Jones' 60 acre tract to plaintiff. He soon discovered a shortage in the 20 acres; conferred with Mrs. Waldrup; had the real estate surveyed, and thereafter instituted this action.

Ruth Hitt Jones and, after her conveyance in 1936, plaintiff have held the legal paper title to the 5 1/2 acres involved and the right to possess the same unless precluded by the prior possession of Mrs. Weisenborn and defendant. Defendant first came into possession under the foreclosure proceedings in 1929, and, since plaintiff instituted this action in 1937, it is essential to defendant's title by adverse possession that she tack on to her possession the prior possession of Mrs. Weisenborn. Defendant concedes she has no record title to the 5 1/2 acres. Mrs. Weisenborn under the instant record, never claimed title beyond the true line of the lands originally partitioned to her. By her deed of trust, executed in 1925, not including the 5 1/2 acres, Mrs. Weisenborn impliedly disclaimed ownership of said 5 1/2 acres. When informed that she had possession of more land than was rightfully hers, she, before her possession could have culminated into title by adverse possession, affirmatively to her sister and impliedly to defendant disclosed her intention to claim only to the true line wherever and whenever it was established and consequently disclaimed title to lands not within the true boundaries of her lands. When a possessor disclaims title there is naught for the flux of time to operate upon to effect title by adverse possession. [Baber v. Henderson, 156 Mo. 566, 573, 57 S.W. 719, 720, 79 Am. St. Rep. 540; Kansas City v. Scarritt, 169 Mo. 471, 484, 69 S.W. 283, 285.] Since the law does not presume a wrong, possession per se merely evidences occupation by right, and consequently title by prescription or limitation has its foundation in the quality and extent of the interest claimed by the possessor -- possession with the claim of ownership for the statutory period. In the circumstances the trial court must have considered, and the record does not warrant our ruling contra, that Mrs. Weisenborn's possession was permissive, a possession by sufferance, did not rise to such dignity as to furnish grounds for a disseisin against her sister, and, in and of itself the foreclosure of her deed of trust transmitted no superior rights. [Courtner v. Putnam,...