Wicoff v. Moore

Decision Date29 December 1923
Docket NumberNo. 23648.,23648.
Citation257 S.W. 474
PartiesWICOFF et al. v. MOORE et al
CourtMissouri Supreme Court

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by J. F. Wicoff and others against J. H. Moore and others. Judgment for defendants, and plaintiffs appeal. Reversed, with directions.

George W. Babcock and Arthur T. Brewster, both of Poplar Bluff, for appellants.

Henson & Woody, of Poplar Bluff, for respondents.

HIGBEE, C.

The petition in this case was filed September 5, 1918. The first count is to quiet title to the north half of lot 2 of the southwest quarter of section 31, township 26, range 6 east, in Butler county. The second count is ejectment. The answer claimed title in fee, pleaded 10 years' adverse possession, and prayed affirmative relief.

The original defendant was John A. Moore, whose death was suggested at the trial on January 20, 1921, and his eight children were substituted as defendants. The cause was tried to the court and taken under advisement until October 27, 1921, when the court found that the defendants were the owners of the land in fee, and judgment was entered accordingly. Plaintiffs appealed.

The land was entered by John T. Pennock under homestead entry on December 23, 1885. Pennock and his wife, by warranty deed, dated January 1, 1892, conveyed the tract, except 12 acres in the southwest corner, to plaintiffs' father, William M. Wicoff, for the consideration of $40. On January 1, 1892, Pennock and his wife conveyed the 12 acres in the southwest corner of the tract to Silas Luke for the consideration of $100, and Luke and his wife, on January 19, 1892, conveyed the east half of the 12-acre tract to William M. Wicoff for the consideration of $40. All of these deeds were duly filed and recorded.

There is little, if any, controversy about the facts. William M. Wicoff lived on the land from the time he purchased it, and 'died there about the year 1893, leaving two children, the plaintiffs, aged then about 2 and 6 years respectively. Their mother predeceased their father. Wicoff married again. His widow, Martha Wicoff, and the children continued to live on the farm. Martha Wicoff, about the year 1902 or 1903, was married to John A. Moore, father of the defendants. Moore and his wife with the two children, it may be assumed, lived on the farm about 12 years, that is until 1914 or 1915, when Moore's wife left him. It is not clear from the evidence that the plaintiffs continued to live with their stepmother after her marriage to Moore. Whether they did or did not is immaterial in the consideration of this case. Moore continued to live on the farm until his death in March, 1919. He cultivated about 15 acres of the land. No one has lived on or occupied the land since Moore's death. His widow was alive at the time of the trial in January, 1921.

The defendants read in evidence a sheriff's deed, dated October 5, 1904, and recorded October 22, 1904, based on a judgment for delinquent taxes for the years 1900 and 1901, in the sum of $3.58 against William M. Wicoff, W. D. Rudicelle, and W. H. Friday, conveying the land described in the petition to J. A. Moore for the consideration of $5.50. It is admitted that the defendants have paid the taxes from the year 1905 to the year 1918, inclusive.

The appellants assign that the court erred in rendering judgment for the defendants, and that upon the evidence the judgment should have been for the plaintiffs.

1. William M. Wicoff died about the year 1893. It is not claimed that either Rudicelle or Friday, defendants in the suit for delinquent taxes, ever had any interest in the land. Wicoff had been dead for 7 or 8 years before the taxes sued for were levied. The judgment against William M. Wicoff was void, and the sheriff's deed, based on an execution on the judgment, passed no title. Keaton v. Hamilton, 277 Mo. 540, 211 S. W. 29; Chilton v. Hedges (Mo. Sup.) 204 S. W. 900. Respondents, however, offered the deed as showing color of title, for which purpose it is ordinarily admissible. Nye v. Alfter, 127 Mo. 529, 537, 30 S. W. 186.

2. Plaintiffs' title to the premises in controversy is not seriously questioned by respondents. Their contention is that they and their father acquired title by adverse possession, under color of title, for more than 10 years. It is not contended that the land exceeded in value the sum of $1,500 at the time of the death of Wicoff in 1893. The total sum of taxes for the years 1900 and 1901 was $3.58, from which fact and other circumstances in evidence it may be assumed that the value of the farm was very much less than $1,500.

Under section 5439, R. S. 1889, Wicoff's homestead vested in his widow and minor children until the youngest child attained his legal majority, and until the death of the widow. According to the testimony of E. H. Moore, one of the defendants, the widow, who later married John A. Moore, the father of the defendants, continued to live on the farm with Moore until she separated from him about the year 1914 or 1915. Under the statute, on the death of Wicoff a life estate vested in his widow, which was not divested by her subsequent marriage nor by her abandonment of the premises. West v. McMullen, 112 Mo, 405, 411, 20 S. W. 628; Hufschmidt v. Gross, 112 Mo. 649, 659, 20 S. W. 679.

3. When the widow and John A. Moore married she was in actual possession of the premises, and so continued until she separated from him. While she so lived on the farm the possession was hers, and not his. The homestead, with the increase and profits thereof, was her sole and separate property. R. S. 1889,...

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17 cases
  • Barnhardt v. McGrew
    • United States
    • United States State Supreme Court of Missouri
    • 24 de março de 1928
    ......Crossam v. Crossam, 303 Mo. 572; Wicoff v. Moore, 257 S.W. 474. (4) The partition suit could not affect these appellants since they were not parties to it. The appellants were not in ......
  • Bragg v. Ross
    • United States
    • United States State Supreme Court of Missouri
    • 16 de abril de 1942
    ......McCaskill, 284 Mo. 584,. 225 S.W. 687. (19) A party cannot acquire title by buying it. at a sale made for his own debts. Wicoff v. Moore, . 257 S.W. 474. (20) It was thought necessary that the property. go through the form of selling to some friendly third party. But the ......
  • Hunott v. Critchlow
    • United States
    • United States State Supreme Court of Missouri
    • 14 de novembro de 1955
    ...... Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339, 343, 75 A.L.R. 135, following Falvey v. Hicks, supra. .         The possession by the widow of so ...Adams, supra, involved a void administrator's sale and deed of the homestead to pay a decedent's debts and a purchase by his widow. Wicoff v. Moore, Mo., 257 S.W. 474, 475, involved a void tax judgment against a homestead and a void tax deed, and the tax sale purchaser was the second ......
  • Bragg v. Ross, 37863.
    • United States
    • United States State Supreme Court of Missouri
    • 16 de abril de 1942
    ......(2d) 9; Bryan v. McCaskill, 284 Mo. 584, 225 S.W. 687. (19) A party cannot acquire title by buying it at a sale made for his own debts. Wicoff v. Moore, 257 S.W. 474. (20) It was thought necessary that the property go through the form of selling to some friendly third party. But the law ......
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