Webb v. Donaldson

• Decision Date: 31 May 1875
• Citation: 60 Mo. 394
• Parties: JAMES W. WEBB, Respondent, v. WM. A. DONALDSON AND JAMES L. FARRIS, Appellants.
• Court: Missouri Supreme Court

60 Mo. 394

JAMES W. WEBB, Respondent,

v.WM. A. DONALDSON AND JAMES L. FARRIS, Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Ray Common Pleas.

D. P. Whitner, for Appellants.

I. The law contemplates a case where defendants have an immediate right of action at law in ejectment. (Wagn. Stat., 1022, § 53; Von Phul vs. Penn, 31 Mo., 333; 31 Mo., 312; Rutherford vs. Ullman, 42 Mo., 216; 42 Mo., 218.)

II. There can be no just or equitable reason for compel ling defendants to bring an action to try the title when the petitioner can just as well sue as the defendant. (Von Phul vs. Penn, supra;Beal vs. Harmon, 38 Mo., 435.) And from the pleadings in this case, it is apparent that the defendants cannot now bring an action at law to try the title. (Benoist vs. Murrin, 47 Mo., 537.)

Dunn & Shotwell, for Respondent.

I. This being an action under the statute, to quiet titles, it is no reason or excuse for not bringing it, to say that the defendants had no right of possession.

The right of possession may be in one person, and the right of property in another at the same time; but two persons cannot have the title to the same piece of land at the same time.

II. The action of ejectment being a possessory action may or may not settle the title. Had the action of ejectment only been contemplated, the statute would have so said.

III. The legislature intended by the act to give a party a sure and speedy way of ascertaining whether another person was the owner of the land he thought his property, and not to keep him in suspense for an indefinite number of years, until the claim was barred by limitation. And to maintain this action, it is only necessary that plaintiff be in possession, claiming an estate of freehold, or for not less than ten years, and that defendants claim title to the same premises; unless they show some equitable and just reason why they should not try their title. (See Rutherford vs. Ullman, 42 Mo., 213.)

NAPTON, Judge, delivered the opinion of the court.

This action was brought under sections 53 and 54 of article 5, of the Practice Act. (Wagn. Stat., 1022.)

The plaintiff claims, in his petition, to be the owner in fee of the N. E. qr. of S. W. qr. of S. 16, T. 52, R. 28, and to be in possession of the same; and he avers that defendants claim adversely, and prays that defendants may be summoned and ordered to institute a suit to try the alleged title.

The defendants admit the possession of plaintiff. They, however, set up that one Hodges was, in 1842, the owner; that Hodges made a will, by which he devised to his wife, Olivia, “his entire estate, real and personal, to do with, manage and control, during her natural life, and for the use and benefit of raising and schooling his four children;” to be equally distributed among his four children after her death; that said will, after the death of said Hodges was duly probated on February 7th, 1848; that, subsequently, in February, 1873, the will was again proved before the Common Pleas Court of Ray county, a court then invested by law with probate jurisdiction.

It is further stated in the answer, that prior to the death of Hodges, two of his children, named in his will, died intestate, under age and unmarried; that after his death a third child died unmarried, leaving his mother and brother surviving, his only heirs; and, consequently, that the surviving son was, under the will, and by virtue of the death of his brother, the owner of three-fourths of the estate, subject, however, to the life estate of the widow.

The defendants then aver that they are informed that the interest claimed by plaintiff, is the said life estate of the widow of said Hodges, or whatever interest they may have acquired from her.

The defendants aver that they own the interest of the surviving son, under the will and derived from his brother; but that it is subject to the life...