*1 overruled, nothing along but further was said that line. is com- It. plained Cross, plaintiff, that Mr. counsel for talked about the “Swiss Gentleman,” meaning president Elmira Company, in con- X-ray plaintiff pictures nection with the made Dr. Sud- suggested getting dath. Then counsel that Dr. Suddath was not day appearing a hundred dollars as a witness high-priced specialist appeared This had the case. reference to who Objection aas witness for defendants. to both these remarks was ruling Appellant and no ivas asked. sustained further is not complain reprimand position now that the court did not counsel any ruling he was-not asked to make. or make other which ruling by which find the trial court of com- We are unable to plaint reversal. is made that would warrant All concur. Accordingly judgment is affirmed. Mary Huffman, Appellants, v.
James W. Lizzie Dale (2d)W. S. 819. Curtis. Two, 24, 1928.
Division March
MCD OS *2 M. T. January for appellants. *3 Poage respondent. M.
Homer comprises counts: first count DAVIS, petition two C.—The *4 involving 1919, 1311 Statutes 1973, on and Revised based Sections vesting of Limitations, praying and the Thirty-Tear Statute of the as- an action to land; second is the plaintiffs to certain in title 1 2 of the' and Both involve lots title. counts certain and determine 34, Range 31, in Vernon Township Quarter 2, Section of Northeast County, and changed, first to Bates County. was twice The venue in the last- court the was tried County. cause The to Cass then is- found the trial court being waived. county, jury named judg- the from appealing plaintiffs defendant, in favor sues againt ment them. that avers count The first as follows. petition summarize the We land; that in the interest an adverse non-resident, claims defendant, a de- neither 1857 and in Government from the emanated title pos- in been has claims she whom any under person. nor fendant they paid have nor years, thirty than for more of the land session from year one recovery within brought an action nor taxes
the thirty-year period. It alleged that brought action was under Sections and 1973, Revised Statutes 1919. The second prays count the court to ascertain and determine title as between plaintiffs and defendant in accordance with Section 1970, Revised Statutes 1919.
The answer admits that defendant claims gen- the land and then erally denies. Defendant further avers she is the owner of the land in simple fee plaintiffs therein; have no interest that about Oc- 15, tober 1881, Baton, James A. the father of defendant, purchased the land J. from W. $1920, Lillard and wife for sum receiv- ing warranty therefor, 31, deed recorded October in 1881, Book page at 591 of the county; deed A. records of said that James Eaton placed brother, George Henry plaintiffs, pos- his Eaton, father in agreement sion promise an the land under or to hold and use said trustee, possession land as his tenant or and for such use thereof keep paid; George Henry against he was Eaton taxes the same that in 1912 tenant and occupied the land until his death as the from then claiming it; plaintiffs, the trustee for James A. Eaton without live only George Eaton, his .continued to Henry heirs of after death pay with- agreement of the on the land and continuance A. Eaton died claiming title; May, 1922, James having out that in plaintiffs only law; that intestate, leaving heir at his defendant as adversely to defend- A. Eaton or to James held land have never De- or otherwise. limitation estopped to claim title ant, and are plaintiffs as to all interest prays to determine fendant the court for all equitable, and legal or relief, whether defendant and for premises. proper relief reply
Plaintiffs’ avers that the father Eaton purchased Henry George Eaton, brothers, who were half land George Henry 15, Eaton, plac- on benefit October of his own the title ing possession, him in but for reasons George Eaton; continuously the land in James A. land, claiming own, occupied it as his 1881 to his death from anjmne claims has been under whom she nor and neither defendant during plaintiffs ad- period; paid taxes possession only defendant is his is dead and that A. Eaton mit that James George aver replying, plaintiffs heir. Further im- controversy erected into of the went continuously claim of title under occupied it provements and their say the death of that since replying, Further death. they 1912, to this date August 24, George Henry father, said possession of adverse uninterrupted, continuous, have been *5 ownership. a claim land under 15, October or about on that admitted parties the During the trial $1920, re- the sum of purchased the A. Eaton 1881, James ceiving a warranty deed therefor recorded 31, 1881, October in Book page at 591 of the records County. of Vernon It was also ad- mitted that James A. Eaton in May, died 1922, intestate, leaving- only defendant as heir law, his at his in Kentucky estate being fully administered. It was further admitted that only are the George heirs at law Eaton, and that the title to the land emanated from the Government of the United States 1859. De- 1912, fendant March, 1882, admitted that until August from George Henry Eaton lived on the place, cultivated it, it, farmed paid and, far appropriated as she knew, the usufruct there- from. ’ Plaintiffs evidence finding George Henry warrants the Eaton, Henry, called August 24, 1912, hereinafter died March, and that from 1882, until family. Henry his death he lived on the land Eaton land, it, dug broke fenced built a house and barn on-it well. death, plaintiff After his father’s James W. Eaton continued to live land, buildings. paying taxes and insurance on The Only Vernon 1881. County time James A. Eaton ever visited no From then until the time his death visits occurred or corre- spondence place took between brothers. Plaintiff did Eaton not know until after his father’s death that title to land was vested plaintiff A. Eaton. While Eaton and said lived on the James any plaintiff never other trial, land from until said knew of Mr. making Curtis, to land until a two or three person a claim the trial, in behalf of Eaton. years claimed it James A. before finding December, warrants the evidence Defendant’s Kentucky, representing James Curtis, attorney Louisville, a Mr. an Dwight he advised with County. There Eaton, visited Vernon plaintiff home of Flynn two to the went Nevada. told him. Curtis and there interviewed controversy
the land Kentucky him to sent from A. Eaton plaintiff that his uncle sign lease; his uncle him to and wanted look into matters did rents, but he any collect dispossess him or had no disposition agreed farm. Plaintiff have a lease believe he should I don’t said, “I know paper. He sign other lease discussed However, he buy it.” I cannot the land and own and was buy it could he acres, but concluded buying eighty leav blank leases before prepared Witness willing lease. sign a changes in showing them upon ing Nevada lease, sign the about When and made. suggested to. the lease were sign "Will, don’t saying, house, from the himto lady some called com you can is and man who know don’t papers. We those wants he what find out Kentucky and Jim Uncle municate with ’’ sign. says if sign it do wants to we what he will do *6 666 Dwight Flynn testified that plaintiff he visited Eaton’s residence
with Mr. plaintiff Curtis and said, among other things, “Yes, place I belongs know the to Uncle Jim.” lady Some called to Eaton house, from the however, advising him to sign refuse to the lease. W. Mays, seventy-two years J. age, stated that he lived about three-quarters of a mile from the farm. He knew and their During Henry father. Eaton’s lifetime he had a conversation with Going him. get to the farm to some seed having corn and heard that belonged the farm Henry brother of Eaton, the witness asked belonged him if it to his in Kentucky, brother that he had heard it neighborhood, so rumored in Henry and Eaton said did. This it happened twenty twenty-five years conversation before the trial. On cross-examination Henry just 'witness stated that Eaton had Henry barn, erected barn. He erecting asked his reason for right needed; kept and he said he had the to erect what if he he paid, up improvements farm; he could put such long he had it for his or as he wanted it. lifetime Eugene years Witness Moore stated that sixteen or seventeen be- Henry land, the trial Eaton said him that did own fore to he belonged that it his to brother. purchased hedge testified that he
Witness Eisenhower Henry upon asking why Eaton, and him he wanted on the land from belongs place. hedge, replied, my is not It to to sell the “This my Kentucky.” brother Henry years testified that a few before
Witness William M. Moore belonged to his brother place him stated to that the Eaton’s death he back East. they had stated living neighbors near
Some it was years and that controversy many known land in many had been for and understanding neighborhood general in the Eaton who Henry by a brother years, that the land was owned Kentucky. lived de- Eaton, gave her A. and Eaton, a of James Lizzie sister aon carried she had She stated is in evidence. position, which niece, and nephew were her who plaintiffs, correspondence with the to were attached letters Several them. never seen although she had Nora nephew, and niece “Your signed, were deposition, which the wife was Nora Billy Eaton.” Will,” and “Nora in her were letters that the Eaton testified Plaintiff plaintiff Eaton. handwriting. “Mr. James 3-12,” addressed Sept. Mo., “Milo, letter, A dated nephew Nora niece and “Your signed Uncle,” Eaton, Dear ' ’’ had Eato^o. George setting forth Eaton, after Billie if know Billie wants Jim, “Uncle 24th, August recites: died for the there back part swap willing you would be place north of this back . here. . . says you Billie make proposition some kind of try and we will straighten up way.” envelope some indorsed, “After 5 days return to J. W. Eaton.” envelope An addressed to “Miss Lizzie Mortonsville, Ky.,” p.
postmarked “Milo, Mo., 1913,” Jan. containing a letter m. *7 “Milo, dated and headed Mo., 13, 1913, Jan. Uncle,” Dear Aunt and signed nephew “Your Will,” and Nora niece and says recites: “Will you give you tell that he will eighty $1500 for the on, the house is that will on good both 80’s the road and will place make a making build on the other 80. Of course we are Uncle Jimmie this proposition hope and will he care to do this.”
In a letter 20, 1920, dated December addressed “Dear Uncle” signed and Eaton,” following “James William is the passage: there regard sign “In it, you to the lease Will didn’t did Mr. authorize says right, Curtis to do Will he wants to so. do what is but didn’t signing ought think feel like lease. Mr. Curtis seemed to we to have papers you. our buildings all insurance made out We have stock keep insured, paid says you and all in Will also full. tell you, Curtis.” ivould like to do business instead Mr. tends to show that Lizzie
Defendant’s evidence further occupied death, after her father’s Huffman never lived on the land long prior having and moved another state thereto. married Uncle plaintiff Will Eaton stated that his wife wrote to In rebuttal January (James Eaton) him and that the letter dated Jim A. September 13, 1913, handwriting, and the one dated is in his wife’s to, may be. 1912, swear but it 3, he wouldn’t finding following fact: “In this cause the
The court made the both counts and court on the issues for the defendant court finds possession plaintiffs’ on was no adverse finds that there specifically Henry George December, 1920, also finds side before controversy, claiming to land in of the entered into never owner.” to be such claimed and at no time thereof be owner an action at whether this is determine we need not I. We think law, contains at the record action equity. If it is an in law or suit [Craig v. trial court. of the judgment to sustain the plenary facts prepon- equity, proof If it is a suit 298 W. Rhodes, S. 756.] hesitancy have no that we defendant in favor of strongly so derates findings. right in its was below concluding the court land be- legal title indisputably shows record 1881, No 15, October or about Eaton on A. James came vested him to by conveyance to show appears instrument or other deed Plain- land. any as to kind declaration anyone, or a written the land purchased A. James tiffs, by their admission receiving a war- $1920, the sum of 1881, or about October '668 ranty therefor, duly deed recorded averment later, subvert the reply their that the father of purchased James A. and Baton
the land in controversy for name Henry Eaton, taking title in the of James A. Moreover, plaintiffs’ proof lacking Eaton. wholly as to such legal transaction. We then in which the have situation and record title to continuously the land his death from in 1922 Eaton, descent, James A. in defendant thereafter without evidence or for that James A. or manner Eaton in wise any purpose beyond legal held the benefit title for Eaton’s showing a life However, regard estate him. evidence as we nothing further than purchase'of the land suffering occupy the thereafter permitting his brother to will, appropriating at paying brother on the land the faxes the usufruct therefrom. IT. Plaintiffs, to sustain their right title and rely to possession,
upon what Thirty-Year is called the Statute Limitations, Section evident, however, Revised Statutes 1919. It is probative force of the evidence does not sustain the
plaintiff's’ weight contention. The of the evidence favors possession finding Henry that of began the the by Eaton of virtue permission or license from James Eaton and it follows that possession is not to ripen such adverse the owner and cannot into long title, matter how continued or however pos- no exclusive the occupant may Notwithstanding the be. session of that defendant March, 1882, 1912, Henry from until his death in admitted that it, it, place, paid appro- farmed lived on the cultivated therefrom, occupancy in- priated such and use is not the usufruct permission from A. Eaton initial or license James consistent the say Henry could that Eaton denied to and unless we by thereafter, notifying him word A. Eaton ownership in James to possession not held be adverse denial, his could be act of such When we consider defend- holds. under whom he the true owner to witnes_ses a number of Eaton stated to ant’s evidence one wit- Kentucky and to belonged his brother to the land improve- paid, he could kept long the taxes as he that as ness long as land, lifetime or as for his had it that he ments occupancy is denoted Henry Eaton’s it, the character wanted was not possession his positive conclusion are led to and we circumstances such under Henry Baton possession of The adverse. pleasure it continues. upon whose him possession is considered 73; 2 J. C. 319, W. 131.] 154 S. Craig, 248 Mo. v.Co. [Lumber Statute of Thirty-Year circumstances these under We rule apposite. not Limitations was We no have hesitancy in reaching the decision that _ plain-
tiffs, after the death father, Henry Eaton, of their never held ad- versely. The decisions and are textbooks unanimous holding visible, exclusive, possession that- to be adverse actual, be must durinp* hostile and continued the time necessary to create bar under the limitation statutes. Whenever any óf these elements lacking, by is no title possession adverse can ripen. We unable are to find a hostile claim in part the record on the plaintiffs. possible While was plaintiff Eaton, it under case, possession circumstances this to hold as ato half interest they claim, yet for his sister as rights her so .were linked with his that, fails, hers, if his claim posses- so must as she never had actual except through sion A him. review the evidence warrants the finding possession that his was not hostile. letters written plaintiff, suggestion, his to wife for him at his uncle and aunt, September 3, 1912, January 13, 1913, dated and December conclusively plaintiff- was. show unnecessary not to forth the hostile to A. Eaton. It is set here, may purport be found in the contents of the letters as their plaintiffs acquire un- failed to title statement of facts. Therefore ten-year der limitation statute. Huffman the stand plaintiff Lizzie to
IV. The trial court called plaintiffs refusing, they contend, permit her, and examined case, they complain. of which the whole examine her relative to trial was: “The objection on the Plaintiffs’ testimony of this all the strike out move the court to permit will the court- witness unless indefinite objection was too case.” This upon the whole her examine assignment pre- of error upon permit intelligently rule us to proof prerequisite may offer of that an While it be sented. *9 to permit a witness refusing in to alleged error a consideration of to com- yet proper and cross-examination, question on a answer specific a witness ask a to question is raising the method of petent it sustained. is objection to an if exception question an and save review. to assignment this as to nothing us before is Therefore, there the same deny to error it was again contend V. Plaintiffs Plaintiffs plaintiffs. for Eaton, a'witness W. plaintiff J. right toas specific to brief or errors of assignment pointed in their have not they com- which of evidence of of exclusion instances of examination through all plain. Defendant because plaintiff, of competency objected plaintiff dead, tliere- was contract or of action the cause party to the other objec- however, over court, The waive it. trial did not fore she tion and exception of defendant, permitted testify the plaintiff to ato things, number of such as occupancy the duration of the of the plaintiffs by father, and their and other unrelated to matters by plaintiff conversations had A. Eaton, or his father with James which objections A conversations the court excluded. number of to questions put plaintiffs’ by by were made counsel to witness by which, defendant court, respect and sustained with all of to one, plaintiffs save proof. Consequently, made no offer without of an offer proof part plaintiffs of of on sustention of an objection may question witness, to a we by them to their alleged assignment consider an of error. following
VI. The witness occurred while J. W. plaintiffs, stand. was on the “Q. whether Then I ask the witness to state or will noj- A. James between heard conversation controversy. regard George Henry Eaton in to the farm in Poage: Objected reasons. to for the same “Mr. Sustained.
“The Court: there ex- ruling “To then which of the court the cepted except. and still January: A. James by prove this witness offer to We “Mr. buying farm Henry Eaton this
Eaton stated that he to benefit. Poage: objected for the same That is reasons. “Mr. Sustained.
“The Court: ruling plaintiffs then duly “To which of the court and there ex- except.” cepted and still only proof plaintiffs. made
The above was the offer of Both question Eaton were dead. offer proof dead man. Plaintiffs related to conversation were claiming through under and their father’s of the title thirty-year land, heirs, by under the limita- virtue title claimed their father and the offering a conversation between statute, tion Section possession. the character of their owner show father’s/ part: 5410, Kevised Statutes reads any civil suit disqualified or person as a witness “No shall be of his in the event interest equity, reason law or proceeding at may be shown otherwise, such interest but party the same as Provided, credibility: ac- affecting his purpose for the of ac- or cause original parties the contract where of the tions one to be in- dead, court is shown trial tion issue and not be action shall or cause contract party to such sane, the other any party favor or favor in his own testify either admitted to *10 to the action claiming under him, party and no pro- such or suit ceeding right whose of action or is defense derived to him from one is, who ifor living be, would subject foregoing disqualification, be shall testify admitted to in his own favor. . . It is evident plaintiffs that parties are to this suit and that their right of action in issue and on trial toas title in was them derived from their father, who, if living, subject would be to disqualification as a witness regarding conversations the owner as to show tend the character of possession their father’s of the land. Under these circumstances proscribes the statute right plaintiffs the of testify to such alleged conversations. Such conversations related to the of cause action in issue and on trial properly and were excluded.
VII. complain Plaintiffs of three in declarations law behalf of. by of given purpose defendant court. of decla-
rations law theory upon of is to show the which the case was tried. complain A
Plaintiffs Instruction in of because it stated effect possession good Baton must have entered into of the land faith, believing They complain was owner thereof. of that, B it stated in can vest because effect before title Instruction occupant possession be lawful of by possession, the must adverse possession bj? possession to land, and defines lawful mean then possession claiming good to own it and person who entered into complain Instruction C They believing the owner. faith he was possession possession is that ground adverse that it declares possession right with the is inconsistent person which one theory possession adverse of another trespass. original on an founded wrong hypothesis, upon proceed though instructions Even nevertheless, of the ad- decide, view question we do which bought land on James A. plaintiffs mission warranty receiving a therefor, 1881, paying $1920 October about opening state- view of the and in recorded, duly deed are bound which counsel, plaintiffs’ ment 539), Ed. L. Co., U. S. (Oscanyan v. Arms land in bought the Missouri out to came A. Eaton give intended that he himself taking title controversy, Henry Eaton and that Henry Eaton, brother, land to if er- law, even declarations land, the possession of non-prejudicial. roneous, harmless were *11 672 record, proof in the
There is no that James A. Eaton held the property brother, for his trust Eaton. Under the facts in only this this relation case could have been aby shown writing (Rogers declaration in v. Mo. Ramey, by plaintiffs 66), made W. and no contention is that such a writ S. ing ever executed. Hig- judgment appearing, is affirmed. prejudicial error
No GO., Henwood, concur. bee and foregoing opinion by C., is adopted Davis,
PER CURIAM:—-The judges All concur. of the opinion of the court. as the Bankruptcy Estate E. Trustee Edward Franklin May, Lucien Appellants. (2d) S. W. al., Olin C. Gibler et v. ibler, G 769. Two, 1928. March
Division