Whitaker v. Whitaker

• Decision Date: 26 June 1900
• Citation: 157 Mo. 342,58 S.W. 5
• Parties: WHITAKER et al. v. WHITAKER et al.
• Court: Missouri Supreme Court

58 S.W. 5

157 Mo. 342

WHITAKER et al. v. WHITAKER et al.

Supreme Court of Missouri, Division No. 2.

June 26, 1900.

EJECTMENT — CONVEYANCE — COLLATERAL ATTACK — EVIDENCE — LIMITATIONS OF ACTIONS — TRIAL.

1. Where, in ejectment, the question of limitation of action was in issue, the deed relied on as putting the statute in operation was admissible in evidence.

2. Where a widow holding a life estate in land conveyed it, without consideration, to those holding the reversionary interest, the life estate merged in the fee simple in reversion, and the reversioners, or those claiming under them, cannot attack the conveyance by the widow, in ejectment, as void because voluntary and in fraud of creditors.

3. Where a tenant in common in land took possession of it, and openly denied the rights of the other tenants, and did acts inconsistent with the presumption that his possession was their possession, the statute of limitations began to run; and it was not suspended until the death of their common grantor, who conveyed her life estate to the tenants in common, who held the reversionary estate.

4. In ejectment, where the right by adverse possession is in issue, pleadings in a former ejectment suit by plaintiffs against defendant, involving the same property, are admissible in evidence to show that defendant asserted exclusive right to the possession at the former suit, but the judgment in the former proceeding is not admissible.

5. In ejectment, testimony on behalf of defendant that the witness understood defendant's father to say that he acquired title to plaintiffs' ancestors' interest in the land, for which he compensated them, is not admissible in evidence, where made in the absence of those against whom the statement operated, since it was self-serving, and the testimony hearsay.

6. In ejectment, where plaintiffs had shown that, as heirs, they were entitled to the fee simple in reversion in the land on the expiration or extinguishment by merger of their mother's life estate in the lands which their father owned at his death, and defendant had given evidence of plaintiffs' ouster, and adverse possession was conceded, it was error to give a peremptory instruction in favor of defendant, since plaintiffs had made a prima facie case, and the question of title was for the jury.

Appeal from circuit court, Pike county; Reuben F. Roy, Judge.

Ejectment by Robert H. Whitaker and others against Elizabeth Whitaker and others. Judgment for defendants, and plaintiffs appeal. Reversed.

Ejectment for an undivided three-fourths of 315.72 acres of land in Pike county, Mo. Petition in ordinary form. Ouster was laid as of 1897. The answer was general denial, save and except that defendant Elizabeth Whitaker admitted that she and her tenants were in possession of the land, claiming the exclusive title thereto, and that she has held such possession for more than 20 years. In a second paragraph she pleads the 10-years statute of limitations. Reply denied the adverse possession of defendants for 10 years. Judgment for defendants, and plaintiffs appeal.

J. H. Blair & Son, for appellants. D. A. Ball and I. C. Dempsey, for respondents.

GANTT, P. J.

Benoni Whitaker is the common source of title. Benoni Whitaker died testate in Pike county, Mo., December 18, 1839, owning the lands in suit. The second subdivision of his will is in these words: "Second. My will and desire, and I do devise to my beloved wife, Karen Whitaker, all of my real and personal estate, to have and to hold during her widowhood: provided, my beloved wife, Karen, should hereafter marry, then it is my wish, and I do desire and give her the power of selecting three of her disinterested neighbors to allot to her the one-third of all of my estate, both personal and real, which she shall be in possession of at the time of her marriage, and the remainder they are to divide equally among all of my children." He named his wife as his executrix, and guardian of his minor children. He left surviving him Karen H. Whitaker, his widow, and the following named children: Mary F. Whitaker, Benjamin K. Whitaker, Amelia A. Whitaker, Robert H. Whitaker, and Malvina Elizabeth Whitaker. Said testator's widow, Karen H. Whitaker, never married again. She, with her children, moved to the state of Mississippi in the year 1848, and resided there until March 15, 1890, on which date she died. Of the children, Benoni S. Whitaker died September 11, 1867; William E. Whitaker died in November, 1869; Amelia A. Whitaker died August 28, 1862; and Malvina E. Whitaker died June 18, 1854. Neither of these children ever married. They died intestate and without issue or descendants. Mary F. Whitaker married C. C. Todd. He died in the year 1856, and she in the year 1860. They left surviving them the following named children and only heirs at law, William E. Todd, Benjamin L. Todd, and John W. Todd, who are co-plaintiffs herein; and each claim an undivided one-twelfth interest in said lands. Margaret D. Whitaker married E. A. McRaven. He died June 4, 1884, and she is now single, and is a co-plaintiff herein, and claims an undivided one-fourth interest in said land. Robert H. Whitaker, another co-plaintiff, claims an undivided one-fourth interest in said land. Benjamin K. Whitaker married Elizabeth Todd. He died September 11, 1859. His widow married Washington Watts. He died, and his widow, Elizabeth Watts, died June 21, 1886. The defendant Elizabeth Whitaker is the daughter and only heir at law of said Benjamin K. Whitaker. Karen H. Whitaker, after she moved to Mississippi, in 1848, held possession of said lands, through her tenants, until March, 1859. About October, 1858, Benjamin K. Whitaker claimed to Abram Haff, who was then the tenant of Karen H. Whitaker, that he had bought the land, and he purchased of said Haff the unexpired term of that rental year, and immediately took possession of the property, and remained in possession until his death, in September, the following year. On February 17, 1855, Karen H. Whitaker, by James O. Broadhead, as her attorney in fact, by her written contract or title bond sold said land to Alexander S. Jackson at the agreed price of $8 per acre, the purchase money to be paid June 1, 1855; and, when paid, she bound herself to make to said Jackson "an indefeasible title in fee simple" to said lands. She then believed that she owned said lands in fee. When the money became due under the terms of said title bond, said Jackson made to Karen H. Whitaker a tender of the purchase money, and demanded of her that she make him an indefeasible title in fee simple to said lands. She refused to accept the purchase money, and failed to make him a title thereto in fee. August 16, 1855, said Alexander S. Jackson commenced a suit against her in the Pike circuit court on said title bond, for the recovery of $4,500 damages for her failure to comply with the condition of said bond. After the institution of that suit, and on the 17th day of April, 1856, said Karen H. Whitaker, for the consideration of love and affection, conveyed by quitclaim deed all her interest in said lands to Mary F. Todd, Benjamin R. Whitaker, Margaret D. Whitaker, Benoni S. Whitaker, William E. Whitaker, Mereal A. Whitaker, and Robert H. Whitaker; they being all of her children that were then living. By said conveyance she attempted to dispose of all the property she owned in Missouri. On the same day that Karen H. Whitaker conveyed her interest in said land to her children, a suit was instituted in the Pike circuit court for the sale of said land in partition, in which said Benoni S. Whitaker is plaintiff, and the other children above named and one Abram Haff are defendants. At that time two of the defendants (Mereal A. Whitaker and Robert H. Whitaker) were minors. An order of sale was decreed at the September term, 1856. The land was sold by the sheriff April 15, 1857, and deed was made by the sheriff September 15, 1858, to Benjamin K. Whitaker, Margaret E. Whitaker, Mereal A. Whitaker, and Mary F. Todd. The consideration stated in the deed is $4,560. None of the grantees in said deed, unless Benjamin K. Whitaker did, ever claimed or asserted any interest thereunder. During all the proceedings in said partition suit, the suit of Alexander S. Jackson against Karen H. Whitaker, above mentioned, was still pending. On the 25th day of March, 1857, 20 days prior to the sale of said lands in the partition suit, an attachment issued in said cause was levied on said lands; and Abram Haff, a tenant in possession thereof, was duly notified by the sheriff of said levy. May 17, 1858, Alexander S. Jackson obtained judgment against Karen H. Whitaker in said suit for the sum of $120 and costs. The attachment lien remained in force up to the rendition of the judgment, and merged therein. Execution was issued February 13, 1860, was levied on the lands in dispute February 14, 1860, and the land was sold by the sheriff March 8, 1860, to Francis C. Todd, the father-in-law of Dr. Benjamin Whitaker, for the sum of $132. Francis C. Todd, having purchased the interest of Karen H. Whitaker in said land, under the Jackson judgment, on January 29, 1866, by quitclaim deed conveyed it to the defendant Elizabeth Whitaker and her mother, Elizabeth A. Whitaker. They accepted said deed and had it recorded, and continued...