Vesser v. Neff

• Decision Date: 09 July 1919
• Docket Number: No. 18825.,18825.
• Citation: 214 S.W. 185
• Parties: VESSER et al. v. NEFF et al.
• Court: Missouri Supreme Court

214 S.W. 185

VESSER et al. v. NEFF et al.

No. 18825.

Supreme Court of Missouri, Division No. 1.

July 9, 1919.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Ejectment action by Ella M. Vesser and others against Isaac J. Neff and others. Judgment for defendant Neff for part of the relief claimed in his answer, and plaintiffs appeal. Affirmed.

Harvey & Bellamy and Virgil V. Huff, all of Marshall, for appellants.

Robert M. Reynolds and Albert R. James, both of Marshall, for respondents.

GRAVES, J.

Action in ejectment. The plaintiffs are five of the seven children of James Neff, deceased. The defendants are his widow and the two remaining children. As first instituted the suit was against Isaac J. Neff alone, but, defects of parties being suggested in his answer, the widow, Mary C. Neff, and the son Robert E. Neff appeared and filed answers as defendants therein.

The legal battle centered around that portion of the answer of Isaac J. Neff wherein he claimed the full interest in the land by a contract with his father fully executed upon the part of the said Isaac J. Neff, and which contract he, the said Isaac J. Neff, asked to have specifically enforced. The material portion of this equitable defense and cross-claim reads:

"That the said James Neff was at one time during his life the owner of and seized in fee simple of the lands described in the petition, to wit, the east half of the southeast quarter of section 18, township 50, range 19, containing 80 acres more or less, and of the south half of the southwest quarter of the northeast quarter of section 13, township 50, range 20, containing 20 acres more or less, all lying and being in Saline county, Mo., and while such owner and so seized, about the year 1889, he proposed to and promised and agreed with this defendant that, if defendant would enter upon and improve the east half of the southeast quarter of section 18 aforesaid, by farming and cultivating such portions thereof as were adaptable for such purpose, by the erection of dwelling and other buildings thereon, and otherwise improving the same for use and occupation, he would give him (this defendant) the said 80-acre tract, and also in connection therewith would give him the said south half of the southwest quarter of the northeast quarter of section 13, township 50, range 20, the latter described tract being a tract of 20 acres, more or less, standing in timber, defendant having the right to leave said 20-acre tract standing in timber, or to cut the timber therefrom at his pleasure.

"Defendant says that he accepted said proposition upon the part of the said James Neff, and that, relying thereon and upon the said statement and promises of the said James Neff, and by reason thereof and thereunder, he soon thereafter accepted possession of all said lands from the same James Neff, and since thus taking possession of the same has made many valuable and lasting improvements on said 80-acre tract under said promise and statement, to wit, has cleared and cultivated the same, has kept the same in a state of cultivation and built up and preserved the same, has built fences thereon, has built dwelling and other necessary houses thereon, buggy sheds, smokehouses, barns and outhouses, stock pens and other inclosures, has set out orchards and made many other improvements thereon, all at his own and a great expense; he has cut timber and sold timber from the 20-acre tract, and exercised other acts of ownership thereon; that from the time he accepted possession of said lands from the said James Neff he has continued in possession of all said lands and made all said improvements under and relying upon the promise of the said James Neff that he would by reason thereof give him the said lands, and since the death of the said James Neff, the same as prior to his death, has continued in possession of all said lands, claiming the same by reason of the premises as hereinbefore stated, and is now in possession of the same under said claim.

"Defendant says that by reason of the premises the said James Neff became and was bound to convey said lands to this defendant as he promised and agreed, and, having failed to make such conveyance by deed or will, as he should have done, during his lifetime, the defendant is now entitled to have said agreement, promise, and contract for the conveyance of said lands specifically performed and enforced against the widow, children, and heirs of the said James Neff, for all of which relief the defendant herein prays, as well as for any End all other relief to which he may be entitled."

By answer the widow averred that she has never released her dower right in and to the lands described and asserted her right to such an interest therein. She also took sides with the plaintiffs, and averred that the seven children were each entitled to an undivided one-seventh interest in the land, subject to her dower interest.

Robert E. Neff, by answer, adopted the answer of his brother Isaac J. Neff. As to the contract set up in the answer of Isaac J. Neff, the learned chancellor nisi made the following finding of facts in the judgment rendered:

"That the said James Neff was at one time during his life the owner and seized in fee simple of the lands described in the petition, to wit, the east half of the southeast quarter of section 18 in township 50, range 19, and the south half of the southwest quarter of the northeast quarter of section 13, township 50, range 20, all lying and being in Saline county, Mo., and while such owner and so seized, about the year 1889, he proposed and promised and agreed with the defendant Isaac Neff that if he, the said Isaac J. Neff would enter upon and improve the east half of the southeast quarter of section 18 aforesaid, by farming and cultivating such portions thereof as were adaptable for such purposes by the erection of dwellings and other buildings thereon, and otherwise improving the same for use and occupation, that he would give to him, the said Isaac Z. Neff, the said 80-acre tract, and in connection therewith would give him the south half of the southwest quarter of the northeast quarter of section 13, township 50, range 20, the latter described tract being a tract of 20 acres, more or less, standing in timber; that the said defendant Isaac J. Neff accepted said proposition upon the part of said James Neff, and relying thereon, and upon the said statement and promises of said James Neff, and by reason thereof and thereunder, he accepted possession of all of said lands from the said James Neff, and has since thus taken possession of the same, made many valuable and lasting improvements upon said 80-acre tract of land, to wit, the east half of the southeast quarter of section 18, under and by reason of said statements and promise of said James Neff to give said land to him, has cleared and cultivated the same and has kept the same in good state of cultivation, has built up and preserved the same, has built fences thereon, has built dwellings and other necessary houses thereon, buggy sheds, smokehouses, barns and outhouses, stock pens and other inclosures, has set out orchards, and made many other improvements thereon, all at his own and great expense; that from the time he, the said Isaac J. Neff, accepted possession of said 80 acres of land from the said James Neff under said promise, he has continued in the possession thereof and made all said improvements under and relying upon the promise of said James Neff that he would by reason thereof give him said lands, and that he has since the death of said James Neff continued in possession of said land claiming the same under said promise to give and by reason of his possession thereof and improvements thereon under said promise; that the said James Neff died without having conveyed the same to the said Isaac Neff, defendant herein, by will or deed; that the said defendant Isaac J. Neff is by virtue of the premises, as hereinbefore stated, entitled to the possession of said 80-acre tract of land, to wit, the east half of the southeast quarter of section 18 of township 50, range 19, Saline county, Mo., subject to the dower rights and interests therein of the said defendant Mary O. Neff, the, said widow of the said James Neff, against all of the plaintiffs and other defendants herein, and that by virtue of the premises as stated he is now the owner of said 80-acre tract of land, subject to the dower rights and interests belonging to said Mary C. Neff, widow of said James Neff, and that he is entitled to have said contract specifically enforced against the plaintiffs and other defendants herein excepting to the said widow, Mary C. Neff, her rights and interests by way of dower in and to the same, and is entitled to have the title to said 80 acres of land, subject to the dower of said widow therein, vested in him."

After the findings above the chancellor further found that the said Isaac J. Neff was not entitled to specific performance of the contract as to the 20-acre tract.

Judgment was entered specifically enforcing the contract as to the 80-acre tract, subject to the widow's dower, and as to the 20-acre tract plaintiffs were given judgment for a five-sevenths interest therein, subject to the dower rights of the widow. From such judgment the plaintiffs have appealed.

I. If the findings of fact in the chancellor's decree are borne out by the evidence, at least an affirmance of this judgment must follow. Indeed, it might be...