*1 COURT MISSOURI. Sipes. sume is that there no are visible fixed, marks on ground designate positions. to it their above, said As any not matter there or whether there does marks long disputed. not so not location is as Bailey Mosley, GG., affirmed. concur. foregoing opinion by PER CURIAM:—The White, adopted opinion
0., is of court. All judges concur.
WILLIAM H. et al. v. al., CASE HARRY et SIPES
Appellants. Two, December 4,
Division 1919. Appellate 1. ACTION AT LAW: No Instruction: Practice. an In law, by sitting action afr jury, tried in- the court as a without given, judgment, by structions asked sustained sub- if stantial no reversible error committed rejection by appel- evidence, admission or will be affirmed late court. 2. after-acquired TRUST DEED: Before Patent Issued. An ac- title quired by patentee passed by Government his made deed patent before said was issued. So that where land to a grantor’s, trustee in 1843 use for the and benefit married " body, acquired sister-in-law by and the heirs of her the title said grantor by patent by passed issued United States in 1846 by conveyance. said prior trustee said Limitations: Adverse -: of Sale: Trustees ex maleficio: Power for Possession. A made owner trustee dee.cl body gave her in 1846 a married woman and the heirs of power sale, conveyed to her estate in trust trustee no but during death,in upon the her estate her life and cast the at body remaindermen; trustee, heirs of her less, conveyed neverthe- if the consideration, grantee -the a valuable land for acquired through persons subesquently and all who title they though possession, into were trustees ex entered during the life life remainder- tenant and for the maleficio death, men the remaindermen time after her were at no death, prior barred limitations the life however tenant’s long strength those who title on the trustee’s claimed deed ' TERM', Yol. 2801 (cid:127) conveyances possession. them order and mesne necessary possession, it was to establish' than color of other chain title or some claim under the trustee. that which emanated *2 the land -: Remaindermen: Limitations. Where 4. woman and married in 1846 for use benefit of to a trustee the body, 1887 she her husband in and heirs and died the of her and 1907, and mesne trustee died in .defendants claim under duly conveyances recorded, action the remaindermen’s deeds limitations, ejectment brought not but in in is 1914 barred they not take The remaindermen did are entitled to recover. mother, nothing the could affect title their trustee did they right rights, their action until after no of mother’s death. Appeal. of Record on Former EJECTMENT: Evidence: Abstract
5. same, ejectment, parties the are actions are in Where the appeal is the of former trial on admissible abstract record in the purpose evidence, issues and disclosing in the both for of acLjiiOAcata respect to trial res facts the former and as adjudicated. matters then ap- Adjudicata: Estoppel. on> -:Res 6. Where former peal up grantees the invalid set under claim to land mesne trustee, precluded trial of second deed parties, ejectment, same the same for the action in between land, up grantees title and a claim another chain oí set under thereunder. Thomas Appeal from Buchanan Court.—Hon. Circuit Judge. Allen, B.
Affirmed. appellant. & P.
Booher Williams and G..Breit
right
(1)
general
is that whenever the
The
rule
legal
with the
action in trustee who is vested
competent
is barred
limitations,
sue
que
applies
this rule
trust
also
barred,
que
juris,
or under dis
the cestui
be sui
whether
ability
period
during
or whether en
limitations,
possession,
being
titled to
or
it
held to
remainder,
immaterial whether the
remainder be
contin
vested
gent.
Cyc. 1010;
Ketchem,
2.09;
Walton v.
COURT
MISSOURI.
100,
v,
Olpherts,
v.
Ark.
Meeks
Cartright,
Chase
L,
Schmidt,
TJ.
E!d.
Schiffman
oik,
(Ky.)
B. Mon.
Edwards
Woolf
Shannahan,
limita-
Statutes
Ewing
tion
upon
are looked
with favor.
Co.
.Investment
Curry,
(2)
dee*d
Mlo.
MdGlothan
Terrell,
for the use and benefit
Prances
trust,
heirs of
body, conveyed
legal
Terrell as
and she
dispute
a married
of her
un-
body
woman and
heirs
being
known and not
ascertained,
Uses
not
Statute
execute
but
the trust
title remained
Goodman,
trustee. Case
Walton
Ketchem,
Simpson
.147 Mo.
Jennings,
332; Simpson v.
Real
Erisner,
164; Tiedeman,
Property,
secs.
466',
470; Ewing
Shannahan,
*3
Mo. 188.
When
of Limitations
(3)
113
the Statute
has
run
the trustee
who has the
title
legal
que
sole
trust
for
right
to sue
possession the
also barred. Walton
Ketchem,
v.
147 M'o. 209 ,- Ewing
v.
113 Mo.
Shannahan,
v.
154
188;
Schmidt,.
Schiffman
204; Simpson
Mo.
Erisner,
v.
157;
155' Mo.
Edwards v.
Mon.
Woolfolk, 17 B.
376\; Meeks v. Olpherts, 100
(Ky.)
IT.
564.
(4) When
Statute of Limitations
once
run
begins to
there can be no
ex-
exceptions,
tolling
cept as provided by statute.
v.
DeHatre
200
Edwards,
M'o.
2i79; Investment
497;
v. Curry j
Co.
264 Mo.
Turnmire v.
204 S.
Clavbrook,
178, 180;
W.
Smeiser v.
Meier,
.187;
271 M'o.
Shaffer
Detie,
v.
Mo. 304;
191
Schiff-
man
Louis,
Schmidt,
204;
v.
154 Mo.
Pim
City
v.
of St.
122
v.
665;
Rogers
Brown,
195;
61 Mo.
Landers v.
Perkins,
defendant claimed Risley, Mo. 560; 151 Mo. St. Louis Public School upon rely (7) Defendants have may they many one fails have if defenses as may Porter Gaines, stand on another. Risley, 560; St. Louis Public School Co., Lewis Y. Life Ins. v. N. 209 S. W. respondents. Boyd and E.
Duvall
L. Moore
&
McGlothing
(1) The
a life
estate
deed created
body.
heirs of her
remainder
Case, with
our
would have become
Under
the use
Statute
Uses
woman;
if
married
once,
at
she had not been a
executed
kept
becoming
Goodman,
it from
executed. Case
“Upon
But
Mo. 114.
the death of the husband
then executed
terminates, and
(5
Ed.),
the wife
Statute
Uses.” Washburn
Moseley,
Pitts v. Sheriff.
Roberts v.
M'o.
Stark
Ash, 169
O’Brien v.
(2)
do
Kirchgarber,
The remaindermen
Mo. 642.
original
but
tenant,
from the
.
not take
life
nothing
or her
tenant
grantor.
therefore
life
And
Case died
them. Frances
affect
trustee could do would
brought,
years
suit was
than ten
less
bodily heirs,
remaindermen,
therefore these
They
of action
no cause
barred.
not be
could
442; Charles
French,
till
her death. Hall
Frey, Armor
Pickens,
*4
v.
447;
261
Lewis
Teetor,
474; De Lashmutt v.
the re
not trustee for
Terrell was
Mo. 406.
Barnes, only, be
tenant
for the life
was trustee
maindermen; he
Moseley,
v.
woman. Roberts
a married
cause she was
Speed
Foundry
593;
Glasgow
Co.,
286;
51 Mo.
Having
(3)
the
they
claimed-under
Laird, Co., Elliott v. 236 Mo. Ogden Dry Co., v. Aner, 184 Duckett Goods App. App. 444: 68- Daniel, Canada Wright, Aldridge, 69; Donnell M'o. Emmert Frey, Armor v. “Where person possession has taken of or exercised acts .of ownership property over under claim of he estopped up is set claim inconsistent wth that under person estopped which he has acted. Thus a from set ting up invalidity in the title under which he has had possession ownership.” Cyc. and exercised acts Boett’ger 803; Railroad v. Lindell’s Mo. 345; Heirs, Roehling, App. v. Totten, Bank App. 104. ejectment,,
RAILEY, C. This an action of brought by plaintiffs in the Circuit of Andrew Court September County, pos- Missouri, on to recover quarter quar- session of the northeast of the southwest Range Township ter of Section 60', 35, located county. Harry Sipes Defendant A. was the tenant possession under other defendants, and disclaimed any prior interest the land. Mrs. Candice Leach, marriage with Thomas Leach, the widow Snipes, Frederick Yenni, aside from de- the other fendants are her children. part
The answer of defendants, practically general stricken out trial left court, denial, an assertion of title defendants, possession under Statute Limitations.
The case was transferred to Buchanan Circuit application plaintiffs, Court, on the and tried before jury the court without a and without instructions. The Wm, plaintiffs trial court found that H. Case, Samuel J. Mary Case and I. Case owners en- of and titled to the anof in- undivided three-fourths plaintiff in and terest, land, to said Wake- field Elliott posses- is the owner of and entitled to the sion of an undivided interest in to said lands, 7/32 *5 yol. 1919. TERM. y. Sipes.
Case respond- for Judgment, was rendered in due form, etc. ents. may arise matters other and such evidence,
The considered upon inspection record, of the an will opinion. new Appellants, time, due filed motion appealed cause was overruled trial, which to this court. them in tried without at law, As this is action
T. if sustained court, trial structions, against appellants is conclusive evidence, substantial committed has been error reversible unless here, [Bingham testimony. rejection of admission cases 885-6, v 210 S. W. Edmonds, . Appellate Review*6 c. l. Walk Branch, S. W. cited; Boas Riggs, 274 er v. Roloson v. l. c. Roberts, S. W. January Harrison, l. c. l. c. 203 W. l.Mo. Estate, l. c. re Lankford S. W. necessary to c. becomes 147.] It, therefore, 197 S. W. ques the law consider connection evidence, upon question. presented, foregoing passing tions forty the title to the admitted at the trial that It was controversy States United emanated acres day patent, March, dated the first Government, McGlothling, County, Mis Andrew 1846, to Harrison July paténtee 15, 1843, souri. On above conveyed of Sa Terrell, John Trustees Ex Maleficio for the use vannah, Missouri, trust, benefit of his the heirs Case, sister-in-law,"and Frances body. after-acquired patentee passed [Wood Smith, trastee.
Organ l. Bunnell, cited.] and cases delivery deed, At the date married, and her husband in 1887. died She died November, June named Terrell,
On
above
said real estate to
William Brown,
expressed
consideration of
There
no
$400.
COURT
MISSOURI.
OP
*6
power
given
foregoing
of sale
to
in
the
the
deed,
trustee
any
creating
does it contain
nor
words
an active trust.
McGlothling
deed from
Terrell,
to
as
con
trustee,
veyed
during
in
estate
trust for Prances Case
and cast the estate at her
life,
death,
of her
heirs
body, as remaindermen.
[Section
R.
;
S. 1909 Reed
Mo,
v. Lane,
284-5;
Utter v. Sidman, 170 Mo.
Ensminger,
Miller v.
The Court Commissioner in Mo. l. c. said: Roy, 25, 1855,
“On June trustee for Terrell, expressed Case, for the consideration of $400 to William Brown. put “The defendants in evidence a chain of Brown them, William defendants and predecessors in open, have been notorious, exclusive and adverse since the from Terrell, date deed to Brown, and defendants possession.” adverse claim title uoav TERM, Yol. offering sub- present
Appellants, after case, other stantially that was oral supra, R. Caldwell a deed from John then offered case, February Yenni, dated and wife to Frederick showing purpose conveying color land, possession. as a title, basis him to case, Caldwell, former deeds part of the record evidence as Yenni, offered iii through coming William Brown from the title, supra. Judge Rot, defendants, to these as stated record in have us the abstract of We *7 pres- case, offered in former which was testimony it the R. Cald- suit, ent contains John and this in that the owner of -whichhe he was well, testified, months. further land nine ten testified: about He Well, you in fee¶ A. “Q. to be the owner claimed certainly. Why, youl Yes, A.
££Q. You sold to Mr. Yenni, it sir.- possession to him'?
££Q. delivered the land and And yes; (Italics ours.) yes, A. sir.” Oh, following part This evidence, was of defendants’ chain of to them. their title from Brown record of, support in their These likewise filed, for a new trial in this affidavit motion of John cause, purchased R. in Caldwell, he that he this states, which Mary from Thomas and F. about Jenkins, Jenkins January, 1879, claimed it. The in abstract own former case Jenkins, shows that the to Thomas deed one from him to Caldwell, R. were offered part in evidence these their rec defendants, through ord chain of from the trustee, Terrell, Wil appellants. liam Brown
There was evidence, therefore, abundant before the tending trial court, to show that these defendants and predecessors purchased their in title and took through of this land under and their record chain of title from Brown themselves. All deeds of the in defend- title, chain of ants’ record the trustee down, MISSOURI. COURT OF
Case origin placed imparted as to record, notice, the trustee. title from (250 l. c. in the former case Court Banc, 114-5), it, between' before cases the facts both with parties, concerning in the same the same land, same ex of a trustees case, that defendants were held, kind run Limitations did not maleficio, that Statutes against, que, "they took trust. That just as Terrell it, trustee for held during bodily her life, remainder to her heirs.” peculiar province trial court
It was pass upon credibility the facts, and determine the testimony findings taken before it.
of the trial
evidence,
court is -sustained
substantial
against appellants
and is conclusive
on the record before
us.
former trial Court
all the facts
Banc,
with-
it,
before
ex
held,
these same defendants were
occupied
trustees,
position
no better
than
maleficio
did
Terrell,
the trustee.
court,
case,
The trial
testimony
it all
hence,
cases,
in both
and,
fully justified
reaching
conclusion as
expressed by
litigation.
in the former
Court Banc
justified
II.
finding,
The trial court
*8
the record
us,
that
the title which Terrell, as
passed
to
by
William Brown,
mesne
conveyances, to these defendants
succes
Limitations
they
title;
sors in
that
took
R,
said land under their deed from Caldwell, who
claimed to be the absolute owner
by
same,
1880’,
virtue of his
through
title
conveyances
record
the mesne
appellants’
aforesaid;
possession was referable
solely emanating
title
from the trustee to Brown,
and from
through
the latter,
conveyances,
mesne
to
appellants.
arc,We
opinion,
therefore, of the
that de
purchase
fendants,
their
from Caldwell, became, and
continued, as trustees ex
and that the Statute
maleficio
of Limitations did not
run
their
favor
que
[Elliott
trust.
v. Machine Co.,
Case v. conveyances on from him the successive Terrell, and impart properly appellants, recorded and down property, as to dealing all those ed notice to with.said pass authority Wiltse, [Garrett title. Terrell’s l. c. 115.] Goodman, Mo. l. c. 713; respond these, Upon death of Frances Case fee-simple estate, real owners became the ents 1909; Elsea [Sec. as remaindermen. R. v. Jones, 1071; 273 Mo. l. c. W. 412-3, 202 S. Cox
Smith, 53; Lane, 311.] Reed v. brought September re- 26, 1914, suit on As this right spondents’ limitation of action not barred possession. respondents their did not take from III. These original grantor. the life but mother, tenant, Nothing trustee did could which the life tenant or the undisputed rights. manifest from the affect It is respondents, case that these facts Remaindermen. had no Case, 0f ag peirs ^ pocp|y court, or else right be asserted which of action could The Statute their mother. death of where, until the suggested, not heretofore therefore, as Limitations, recovery. French, [Hall v. bar their Armor Pickens, 430-442; Charles Frey, Teeter, Lashmutt De 397, 406.] Barnes, 272 Lewis v. appellants, having in the former claimed These IV. their chain as shown deed, trustee’s under the case acknowledged thereby therein, making the trustee’s breach of information denying precluded now the deed: Knowledge. penalty knowledge, escaping [Ogden Armor v. Auer, that reliance. Mo¡ Co., Frey, Elliott Machine *9 Coney Aldridge, Laird, Emmert Wright, 647.] Donnell v. SUPREME COURT MISSOURI. Appellants of record abstract contend that the V. improperly ad Goodman, in plaintiffs were in evidence this case. mitted in appellants in cases. These were defendants both parties in in and the real cases, both eject Merest. Both cases were' actions of Abstract Res Adjudicata. controversy in ment, the same proceedings in both suits. The in the former record properly case were read [Garton evidence. v. Botts, in l. 277-8; Conn. Mutual Ins. Life Co. v. Smith, l. c. 296-7; Southern Railroad v. Pacific United States, l. c. 59-60, 168 U. S. and cases cited.] With testimony present that is in the case it, now Court in Banc, Case v. Mo. l. Goodman, c. 114-5, decided that male herein were trustees ex controversy, as ficio, to the real estate that the que Statute of Limitations not run only competent pur trust. The record was not .for pose disclosing original the issues and facts competent, adjudícala, case, but was likewise as res respect litigation. to the matters involved in this
In Southern Pacific Railroad v. United States, 168 Supreme U. l. c. 48-9, Mr. Justice Court Hablan discussing this,subject States, United said: general principle “The announced numerous right, question eases distinctly is that a put or fact directly 'by issue competent court determined jurisdiction, ground recovery, disputed as cannot .subsequent parties suit between the same or their privies; second, even if the suit is for a different right, question action, cause or fact once so de- parties termined must, between the same as or their privies, conclusively be taken long established, so the general in the first suit remains unmodified. This very object
rule is demanded for which civil courts have been which established, is to secure the peace repose society by the settlement of mat- capable judicial ters determination. Its enforcement is essential to the maintenance of social order; for, the *10 121 TERM, Yol. y. Sipes. Case judicial invoked not
aid of would tribunals property, as be- if, rights person and of vindication not parties privies, conclusiveness and their tween respect all judgments tribunals of such attend actually properly determined put in issue matters by them.” Mr. Justice
Numerous cases are cited Harlan, proposition support the same effect law. To above 86; following: l. c. v. Branch, Boas 208 S. W. are v. ex rel l. c. Dell, 64; v. State 191 S. W. Richardson 559, l. Leslie v. 35-3; Mo. c. 197 S. W. Patton, 271 .Car ex rel. v. 1196; l. c. 428, 187 S. State ter, W. Mining Co., Barnhart 356; Mo. l. W. 501-2, 262 c. 171 S. l. v. 243 Mo. l. Hines, v. 185 S. c. Hines Little, 177; W. 774; 495, 237 Pulliam, c. S. Tie & Timber Co. 147 W. 1, Aldridge, l.Mo. c. Emmert 144; Mo. 139 W. 231 S. Early, Spratt l. 509, 1050; c. 132 199 128, S. W. Wright, l. c. 925; 647, Donnell v. 49 Levy, App. l. c. S. Pac. Rv. Co. W. l. U. c. 673. 507-8; Ibs, Ins. Hartford Life Co. presented prin same record, the facts On ciples ejectment. apply actions of of law to successive [Realty Development l. c. Norman, Co. v. 631-2; Branch, Clark, Boas McAnaw p, l. 95, R. L. sec. R. C. 208 S. C. W. Ejectment, p. L. sec. on sec. Warvelle p. p. Ejectment, cited; Newell on cases secs. 21-2.] Realty Development Norman, Co. v. opinion, 631-2,
l. c. in a unanimous One, Division dis question, cussing this said: agree they express cannot
“We sentiment con reasons: we are satisfied with the First, two clusion which then mature at we after consid arrived form, investigation; eration careful and, second, adjudication question er in the former suit same (the parties, upon the same between paper itself), the same evidence though previous is, even action this, ejectment, in an conclusive While COURT MISSOURI. y. ejectment suit a bar to for the is not another suit yet premises, possessory, being only when the action only the title issue, consequences ordinary suit, it has of an incident, parties same, when the the land is same, support respective is the titles same. Potter v. [McAnaw Clark, *11 665.]” Adams, 143
In and Clark, the facts McAnaw ejectment in the issues suit were same as second judgment in the and it former, held, those was that the adjudicate/,. in the suit first res appeared In Boas it Branch, 208 S. W. entry'and an action of forcible detainer com had-been pos peace, justice menced of the to recover ejectment session of the same real estate in the involved pending. entry suit then action of forcible The de justice tainer was decided Branch, favor of appealed judgment Boas to the circuit court. The unappealed of the latter remained from. The facts justice stated the'action before the were the (same petition up ejectment. those set The other judgment Division that the action held for forcible entry adjudicata against plaintiff detainer res up ejectment facts, to the same set in the suit.
Appellants insisting are should be now permitted upon part only to recover of same position the former used case. that this We is hold finding untenable, and that below is sustained law and evidence of the case. page appellants’ At
VI. 83 of it said: brief, .“And only question in this case is whether or not the Stat- against ute run Limitation-has title of the. fully question trustee.” haveWe considered this preceding part opinion. clu sion As hereto- Con suggested, province tore it was the of the pass upon testimony. trial court doing it so, compelled accept was not testimony as true the offer- TERM1, Yol. City Louis. St.
Reese respect questions appellants, in ed judgment finding and The possession and limitations. upon appellants, trial court were of the satisfied record, we the entire full consideration by it. reached the conclusion accordingly affirmed. below Mosley, concur. CG., White foregoing opinion of Raileiy, PER CURIAM:—The opinion All hereby adopted of the court. as the C., is judges concur. Appellant, LOUIS, KATIE REESE v. CITY ST. TELE & TELEGRAPH SOUTHWESTERN PHONE COMPANY. Two, December
Division *12 Upon Appeal. to Evidence: No ADJUDICATA: Demurrer 1. RES evidence, given the trial at the a conclusion demurrer by plaintiff, defendants, unappealed in behalf of one of adjuclicata litigation res as to defendant becomes such action ends toas it. Mayor: Exact Date Acci- 2. ACTION AGAINST CITY: Notice to. against a precluding bringing of dent. The an action statute injuries city personal population, thousand of one hundred street, growing writing shall out in a a notice defect unless mayor days given ninety in- have within after been jury “stating received, place where, when such the time injury was received and character and circumstances causing requires precise injury,” time of accident injury notice; states set forth in the a notice which day the accident occurred about 27th of March “on 1914,” compliance statute, give is not with the and a failure damages. proper complete notice is a bar action for Appeal City Hon. Kent St.- Louis Circuit Court.— Judge. Koern&r,
K.
Reversed.