Whitaker v. Whitaker

• Decision Date: 27 May 1903
• Parties: WHITAKER et al. v. WHITAKER et al.
• Court: Missouri Supreme Court

74 S.W. 1029

175 Mo. 1

WHITAKER et al. v. WHITAKER et al.

Supreme Court of Missouri, Division No. 1.

May 27, 1903.

EJECTMENT—CLAIM OF ADVERSE POSSESSION —HEARSAY EVIDENCE—DEED—PRESUMPTION OF ACCEPTANCE—WHAT CONSTITUTES ACEPTANCE — CONFLICTING DESCRIPTIONS— CONSTRUCTION.

1. Testimony in ejectment that defendant "had claimed to own the farm after he moved on it" is not objectionable, though on a previous appeal the witness' evidence that defendant had said that he had acquired the title of others was ruled out, as proving a self-serving declaration.

2. The acceptance of a conveyance which is for the benefit of the grantees will be presumed.

3. Where a life tenant conveys to the remaindermen, who institute partition, based on a present right to the property, and later sue for its possession, such conduct amounts to an acceptance of the life tenant's conveyance.

4. Where, in ejectment, the petition claims an entire farm, and does not attempt to distinguish between what was and what was not conveyed by a deed to plaintiffs by the life tenant, and the case is tried on that basis, plaintiffs cannot contend on appeal that as to part of the land they took as remaindermen, and not as grantees, and hence as to that portion their cause of action was not barred by limitation.

5. Plaintiffs in ejectment claimed as remaindermen, but had received a deed from the life tenant, conveying all her interest in the lands "formerly owned by her deceased husband in P. county, and usually known as the `W. Farm,' containing about 314 acres, `bounded on the north by the lands of H., on the east by the lands of S. and on the west by those of O., and known by the following numbers.'" The numbers given described five tracts, only two of which adjoined, and which aggregated but 161 acres. Held, notwithstanding the error in the call for numbers, the deed would be construed as conveying the entire farm, according to the evident intent of the grantor, and hence plaintiffs' cause of action as to all the land accrued at the time of the conveyance.

Appeal from Circuit Court, Pike County; D. H. Eby, Judge.

Action by Robert H. Whitaker and others against Elizabeth Whitaker and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

J. H. Blair & Son, for appellants. Ball & Sparrow and Dempsey & McGinnis, for respondents.

MARSHALL, J.

This is an action of ejectment for certain land in Pike county. It is the second appeal of the case to this court. The decision on former appeal is reported in 157 Mo. 342, 58 S. W. 5. The judgment of the circuit court was reversed, and the cause remanded for trial anew, because the circuit court had erred in permitting Robert A. Campbell to testify "that he understood Dr. Benjamin K. Whitaker, the father of defendant, to say that he acquired the title of his brothers and sisters in this land, and that they were compensated by his interest in Mississippi, but the details of the conversation he could not remember. This statement was self-serving. It was entirely narrative, and made in the absence of the other heirs, and hearsay"—and because the trial court had erred in giving the jury a peremptory instruction to find for the defendants. The case was tried anew before a jury, a verdict rendered for the defendants, and plaintiffs appealed.

The issues are the same now as then. The petition is in the usual form, and the ouster is laid as of March ___, 1897. The answer admits possession and claim of exclusive ownership, and pleads the 10-year statute of limitations. The reply is, in effect, a general denial. The evidence is practically the same now as before, except that Mr. Campbell, instead of testifying as above stated, was not examined as to what Dr. Whitaker said about his having acquired the interest of his brothers and sisters in the land, but he testified, "Dr. Whitaker claimed to own the farm after he moved on it." This was objected to, and it is claimed that it was incompetent, under the opinion of this court on former appeal. This, however, is a mistake, for the testimony that "Dr. Whitaker claimed to own the farm after he moved on it" is a very different thing from his saying that Dr. Whitaker said he had acquired the interest of his brothers and sisters. The latter was clearly a self-serving statement, while the former is clearly admissible as going to show the character of his possession, and therefore to sustain the plea of 10 years' adverse possession. No further attention, therefore, need be paid to this assignment of error.

The facts are so clearly stated in the opinion of Gantt, P. J., on former appeal, that it is unnecessary to repeat them here. The salient features of the case, however, are that Benoni Whitaker is the common source of title. He died testate on December 18, 1839, leaving a widow and eight children, of whom the plaintiffs are the survivors. The defendant is the only heir of one of the deceased children, Benjamin K. Whitaker. The testator devised all his property, real and personal, to his wife, but provided that if she married again she should have only one-third, and the remainder should be divided among his children. It is conceded, and was held on former appeal, that the widow acquired only a life estate, and the remainder in fee passed to the children. After the testator's death, the widow moved with her children to Mississippi, leaving James O. Broadhead, her attorney in fact, to manage and look after the land. On February 17, 1855, the widow, through her attorney in fact, contracted to sell the land to one Jackson, and to give him a fee-simple title thereto. He tendered the money, but, as she had only a life estate, she could not give him a fee-simple title. Thereupon he sued her for damages for breach of contract. While that suit was pending the widow returned to Pike county, and on April 17, 1856, in consideration of love and affection, she quitclaimed the land to her seven children, who were of age. On the same day one of the sons instituted a suit in partition against his mother and brothers and sisters, which ripened into a judgment. Thereafter, on March 25, 1857, Jackson sued out an attachment in aid, and had it levied on the widow's interest in the land, and on May 17, 1858, judgment was rendered for the plaintiff, and the land sold under execution on March 8, 1860, to Francis C. Todd, who took possession of the land in 1860, and on January 26, 1866, he conveyed it to his wife, Elizabeth, and his daughter Elizabeth A., who afterwards married Benjamin K. Whitaker. The wife, Elizabeth, died, and Elizabeth A. Whitaker acquired her interest by descent. Since 1860 the defendant and her father, under whom she claims, have been in the open, notorious, continuous, adverse possession of the land, claiming absolute ownership thereof against the world. In 1874 the children instituted a suit in ejectment against the defendant and her mother to recover the land. The defendants again asserted title and adverse possession, and, upon a trial, judgment was rendered for the defendants. The widow died in 1890. Nothing further was heard of any claim of the plaintiffs until August 25, 1897, when this suit was begun. Upon the former trial and...