Whitworth v. Barnes

• Decision Date: 02 April 1914
• Docket Number: No. 16,569.,16,569.
• Citation: 256 Mo. 468,165 S.W. 992
• Parties: WHITWORTH v. BARNES et al.
• Court: Missouri Supreme Court

165 S.W. 992

256 Mo. 468

WHITWORTH v. BARNES et al.

No. 16,569.

Supreme Court of Missouri, Division No. 1.

April 2, 1914.

1. EJECTMENT (§ 86)—BURDEN OF PROOF.

If plaintiff in ejectment was the record owner of the legal title, the burden was on defendants to establish title in themselves as alleged in the answer.

2. EXECUTORS AND ADMINISTRATORS (§ 130) —RIGHT TO SUE.

An administratrix was not the proper party to prosecute an action of ejectment, and hence could not maintain an appeal in an action originally instituted by intestate.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by William Whitworth against Elias Barnes and others. From a judgment for defendants, plaintiff appeals. Appeal dismissed.

Sebastian & Sebastian, of Columbia, for appellant. Harris & Finley, of Columbia, for respondents.

Statement.

WOODSON, P. J.

William Whitworth, deceased, instituted this suit (ejectment), in the circuit court of Boone county, against Elias Barnes to recover 40 acres of land described in the petition. Anna Eliza Barnes, the wife of the defendant and daughter of the plaintiff, filed a separate answer setting up the ten-year statute of limitations, under a parol gift of the land to her by her father, and therein prayed the court to try, ascertain, and determine the rights, title, and interest of the parties to the land in controversy. The defendant Elias Barnes by a separate answer set up title in his wife under said parol gift and pleaded the ten-year statute of limitations. The case was by agreement of parties tried before the court without the intervention of a jury, and after hearing the evidence, no instructions having been asked, given, or refused, the court found the issues for the defendants and rendered judgment accordingly. After all proper preliminary steps were taken, the cause was duly appealed to this court; and since the appeal had been perfected the plaintiff died, and upon the suggestion of his death the cause was revived in the name of his widow, the administratrix of his estate.

Under the pleading, it being conceded that the plaintiff was owner of the record legal title to the land, the court held, and properly so, that the burden of proof rested upon the defendants to establish the title and defense stated in the answers.

The evidence for the defendants was substantially as follows:

The defendant Anna Eliza Barnes testified: That she was one of the defendants, the wife of Elias Barnes, the other defendant, and a daughter of the plaintiff, William Whitworth, deceased, and the stepdaughter of the appellant, Carrie L. Whitworth, the administratrix of his estate. That in the year 1898 she and her husband were living on a farm belonging to one Andrew M. Mathis, some distance west of the town of Sturgeon, Boone county, Mo. At that time the 40 acres in controversy was a part of her father's farm, on which he and her mother resided, which at that time had been rented by her father to one Beatty, for a period of five years, which had two years to run. That the plaintiff stated to defendant Anna and others that he had rented the land to Beatty in order to have it cleared and put in cultivation for her, but at the expiration of three years, he, desiring to have her near him and his wife, changed his mind and wanted defendants to have the land at that time. Mr. Beatty, however, had to be considered before defendants could secure possession of the place. With that purpose in view, the plaintiff tried to get Beatty to give possession, and offered to furnish the money to defendants with which to buy him out, but they refused to pay any sum for the possession. That while Beatty was willing to deliver possession and get rid of the lease, he was afraid that he might be liable thereunder for the rent during the two years, the unexpired term of the five years' lease of the premises, and therefore refused to deliver possession unless the lease was formally transferred to defendant Elias Barnes. That this was done for the purpose only of securing the possession of the land, and not for the purpose of making Barnes the tenant of plaintiff. That after having settled those matters between the parties, the defendants, on December 24, 1898, moved from their place near Sturgeon to the place in controversy; the plaintiff himself assisting them in moving.

The defendant then introduced some eight or ten witnesses, whose testimony tended to prove the truthfulness of the allegations of the petition regarding the parol gift of the land by the plaintiff by William Whitworth, the father, to the defendant Anna Eliza Barnes, and that in pursuance thereof she and her husband left their old home and moved upon the land in controversy. In substance they testified that he told her prior to and at the time they moved that Anna could have the place; that he said to them, when the question came up regarding the building of a house on the premises, that he had given her the land, but he would not build a house thereon for her; also, that at the time the plaintiff refused to purchase some fruit trees an agent was trying to sell him for the place, and assigned the reason that he had given the land to her, and that he would let her and her husband purchase the trees.

Pleasant Whitworth, the brother of the plaintiff, testified that the latter told him that he had given the place to his daughter and was going to make her deed. Also, he stated to a number of persons that he had given the place to his said daughter, and that her mother, Mrs. Whitworth, in the presence of plaintiff, stated that he had given the place to Anna in order that she might be near them and assist them in their declining years, to which he made no reply.

The evidence also tended to prove: That, with the knowledge and consent of the plaintiff, the defendants made valuable and lasting improvements...