Waddell v. Chapman

• Decision Date: 19 December 1921
• Docket Number: No. 22441.,22441.
• Citation: 292 Mo. 666,238 S.W. 481
• Parties: WADDELL v. CHAPMAN et al.
• Court: Missouri Supreme Court

238 S.W. 481

292 Mo. 666

WADDELL v. CHAPMAN et al.

No. 22441.

Supreme Court of Missouri, Division No. 1,

December 19, 1921.

Motion to Modify Opinion Overruled March 14, 1922.

Appeal from Circuit Court, Morgan County; J. G. Slate, Judge.

Action for partition by J. H. Waddell against Nannie Chapman, and others, in which Laura E. Thomasson intervened, claiming the property involved. From a judgment for partition, the intervening defendant appeals. Reversed, with directions to declare the intervening defendant to be the owner of the property in fee.

John J. Jones and A. L. Ross, both of Versailles, for appellant.

Roy D. Williams, of Booneville, and J. W. McClelland, of Versailles, for respondent.

SMALL, C.

I. Appeal from the circuit court of Morgan county.

The amended petition, filed February 5, 1918, was for partition of 40 acres of land in said Morgan county. It alleged that plaintiff and defendants, Nannie Chapman and others, who were bodily heirs of Caroline Spicer, deceased, or their assigns, were the owners as tenants in common of the land, through a conveyance thereof to said Caroline Spicer, for life, with remainder to her bodily heirs, she having departed this life in the year 1917; that defendant Laura E. Thomasson is the tenant in possession of said land; that the title of said Laura E. Thomasson is hostile and against the estate of the plaintiff and his coremainderman, if any she has; that certain other defendants hold a deed of trust made by said defendant Thomasson.

The prayer is for a decree of partition, "and that the court in its decree ascertain and determine the estate and interest of the parties herein" or in the proceeds of sale should the court order the land in partition, and for general relief.

The said amended petition was filed after the court permitted defendant Thomasson to be made party and to file an "interplea" and answer. Said answer and "interplea" states that it is filed by said defendant to prevent the sale or division of the land in partition from casting a cloud upon her title. It then denies all the allegations in the petition, or that plaintiff has any right to partition. It further alleges that she is vested with the fee title thereto by a warranty deed from George H. Carpenter, dated April 26, 1918, and that she is in exclusive possession of said land. That she and those under whom she claims have been in open, continuous, adverse, and exclusive possession of said land under claim of record title ever since 1888, and that neither plaintiff nor any one of the other defendants nor any person under whom they claim title had ever been in possession. Further, the said defendant denies that the title of Caroline Spicer ever vested in plaintiff or the other defendants, and alleges that the only interest which Caroline Spicer had was by a quitclaim deed pleaded in plaintiff's petition, which conveyed only a dower interest or life estate of the grantor, Ann Ross, who died about the year 1895, and that the only interest the said Ann Ross had in said land, if any, was her dower interest as the widow of her husband, who died about the year 1882. Said answer then prays that plaintiff's petition be dismissed, and that the court declare the fee-simple title to be in the said defendant, and for general relief. The reply put in issue the new matter in the answer of said Laura E. Thomasson, except that it admitted she was in possession of said land, which the reply averred was by virtue of a conveyance of the life estate of said Caroline Spicer, deceased, and that said defendant's estate terminated upon the death of Laid Caroline Spicer. The reply prays that the answer of said defendant be dismissed, and that a decree be entered, vesting in the said bodily heirs of said Caroline Spicer the fee title to said property, and for such other relief as was prayed for in the petition.

On the trial of the case plaintiff offered in evidence the deed of Ann Ross to Caroline Spicer. It was dated June 19, 1889, and was made "by and between Ann Ross, of the county of Morgan, state of Missouri, party of the first part, and Caroline Spicer (for life, remainder to her bodily heirs) of the county of Morgan, state of Missouri, party of the second part." Then followed in regular form a quitclaim deed for a consideration of $150 "to the said party of the second part" for the land in question. Habendum "to said party of the second part, her heirs and assigns forever." This deed was duly acknowledged and recorded June 19, 1889.

The defendant Thomasson objected to said deed unless plaintiff also showed what title Ann Ross had, stating that she only had a life estate, but the court ruled that, inasmuch as said defendant claimed under said deed, said Ann Ross was the common source of title, and plaintiff need not go back of the deed from her. To which ruling defendant excepted. Plaintiff then introduced evidence tending to show that plaintiff and the other defendants, except defendant Thomasson, were the bodily heirs of said Caroline Spicer, and that she died November 6, 1917. Plaintiff then rested.

Defendant Thomasson then offered to read in evidence the following instrument:

"Having many years ago conveyed to my freedman, Carl Ross, the southwest quarter of the southeast quarter of section seven (7) in township forty-two (42), range seventeen (17), in Morgan county, Missouri, which said conveyance is not of record and is said to have been lost—now therefore I hereby declare and make known to all whom it may concern that I neither have, nor claim to have, any interest whatever in said lands. * * * In witness whereof I have hereunto set hand and seal this eleventh day of February, 1891.

                           "[Signed] J. P. Ross. [Seal.]"
                

This document was duly acknowledged February 11, 1891, and recorded April 15, 1891.

On objection of plaintiff, the court excluded the above document, to which defendant excepted. The defendant then introduced the conveyances in her chain of title, the first being a warranty deed purporting to convey the fee title, dated January 28, 1893, from Caroline Spicer and husband to L. A. Craft. This was followed in regular sequence with quitclaim and warranty deeds, the last being a warranty deed to defendant Thomasson by George Carpenter and wife, purporting to convey said lands and other lands for a consideration of $3,200. Defendant then offered witnesses to prove that Carl Ross lived in Morgan county, and died in 1882, and left surviving him his widow, Ann Ross, and a son, Reuben, who is still living, and that Ann Ross died about the year 1890. On objection of plaintiff, the court rejected this offer, to which defendant accepted.

Defendant thereupon introduced evidence tending to prove that defendant and those under whom she claimed title had been in the adverse possession of the land, claiming to own it in fee, for more than 10 years before the plaintiff filed his suit. One witness testified he knew the land "when Curly (Carl) Ross lived down there," and another that "Curly" claimed to own the land in question. The lower court at the trial agreed with the suggestion of counsel for respondent that adverse possession would not run against plaintiff and the other remaindermen until the death of the life tenant, Caroline Spicer, in 1917, but allowed the evidence of defendant showing such possession to be introduced with plaintiff's consent, so that defendant could have the benefit of it on appeal to the Supreme Court in case the court was wrong in the view it took. There was no contradictory evidence offered by plaintiff. No instructions were asked or given.

The court adjudged the land to belong to plaintiff and the other defendants, the bodily heirs of said Caroline Spicer, and adjudged partition between them as prayed in the petition. After vainly asking for a new trial, defendant Thomasson appealed to this court.

II. The question presented on this appeal is whether the defendant Thomasson could go behind the common source of title, Ann Ross, under the pleadings and evidence in the case. The lower court ruled she could not; that said defendant's possession could not be adverse. The court therefore refused to consider her title by adverse possession, and excluded evidence offered by her as to an outstanding title in Carl Ross and his heirs.

In support of net ruling the respondent's learned counsel contend that, although defendant was in possession under claim of title in fee, the plaintiff would only be required to show that defendant Thomasson claimed title under Ann Ross, the same person or common source under whom the plaintiff and other defendants...