Hutson v. Hutson

139 Mo. 229 | Mo. | 1897

Burgess, J.

This is an action for the partition among the parties to this suit of a large body of land in Platte county, and for an accounting by defendants Johanna Hutson, the widow of Edmund P. Hutson, deceased, S. H. Branaman, his executor, and the other defendants as the children and only heirs at law of said Edmund P. Hutson.

The plaintiffs and Edmund P. Hutson were originally cotenants, having inherited the land in question from George R. Hutson and Isaac P. Hutson, deceased, who were brothers of said Edmund P. Hut-son. Edmund P. Hutson died testate in 1892, and the defendant Branaman was duly qualified as his executor.

The petition alleges that Edmund P. Hutson in his lifetime took possession of said lands as cotenant with the other brothers and sisters of said Isaac P. and George R. Hutson; and also as their agent collected the rents and cut and sold timber off: the land.

Defendants in their answers deny the cotenancy, and allege that they and Edmund P. Hutson, from whom they derive title, were in the actual, open, notorious, exclusive, and adverse possession of all the land for more than twenty years before the commencement of this suit.

The court found that defendants and Edmund P. Hutson, under whom they claim, had been in the actual, open, notorious, and exclusive possession of the land in question, holding the same adversely as to plaintiffs and all other persons for more than ten years before the commencement of this suit; dismissed the petition and rendered judgment against the plaintiffs for costs. Plaintiffs appeal.

Up to the last day of December, 1866, Edmund P. Hutson, the plaintiffs, and those under whom they claim title, were cotenants in the land involved in this litigation, and about that time several of them executed to him their respective powers of attorney impowering him to look after their general interests in the State of Missouri and to sell and dispose of all their real estate in thiá State. The evidence is quite conclusive that when Edmund P. Hutson first took possession of the land he did so for the benefit of his cotenants, as well as for himself. He sold timber from the land amounting to $10,000, and in 1867 sent word to his brothers then in the west, as he believed they were not in need of the money he would invest it in government bonds. There was also evidence showing that Edmund P. Hut-son acquired by deeds the interests of several persons in the land, one of the deeds being dated as late as May 2, 1885; and that during the years of 1883 or 1884, he stated that one of the plaintiffs, David W. Hutson, had an interest in the land.

Plaintiffs are, and for many years have been, nonresidents of this State, some of them residing in the State of California, some in Nevada, and others in the State of Kansas.

These facts made out a prima facie case in favor of plaintiffs, and entitled them to partition of the land, unless the evidence showed an ouster by defendants, or Edmund P. Hutson under whom they claim before, and an adverse holding at the time of the beginning of this action.

If, therefore, defendants were at the time of the institution of this suit in the exclusive adverse possession of the land, claiming the same as their own, and there had been an ouster before- that time, then plaintiffs, although claiming as cotenants, can not maintain this action and must resort to their action of ejectment in order to settle the question of title, before they can do so. Lambert v. Blumenthal, 26 Mo. 471; Rozier v. Griffith, 31 Mo. 171; Shaw v. Gregoire, 41 Mo. 407; Wommack v. Whitmore et al., 58 Mo. 448.

“But in such cases the disseizin, or an adverse possession amounting to an actual ouster must be shown, in order to prevent the right to an action of partition.” Wommack v. Whitmore, supra; Shaw v. Gregoire, supra; Rozier v. Johnson, 35 Mo. 326. It is not necessary, however, that such adverse possession should have been continued for the statutory period of ten years in order to be a bar to the action, but it is sufficient if there be an ouster before, and an adverse holding at the time of the suit.

The question then is, were the acts of ownership, exercised by Edmund P. Hutson with respect to the land, of that open, visible, and notorious character of exclusive ownership and actual ouster of themselves, of such a nature as to rebut and overcome the legal presumption of a tenancy in common, arising from the relation of the parties, and of which the law will presume that plaintiffs and those under whom they claim-had notice.

Edmund P. Hutson was in the actual, • exclusive and undisturbed possession of all the land, taking the entire profits, and paying the taxes thereon for over twenty years. Up to and during the year 1867, he had sold from the land $10,000 worth of timber, to the knowledge of at least one of the plaintiffs and the father of some of the other's, yet there was no evidence of any claim of possession by any of them, or for an accounting for the rents and profits.

He erected a valuable residence and other buildings, and made improvements without protest or objection. “These acts were overt and notorious, and they were unquestionably of such a character as to impart information and give notice to the cotenants that their rights in the premises were invaded and denied, and that a possession was claimed and a use made of the property which was utterly inconsistent with the presumption that the defendant’s possession was their possession also, and consequently that the unity of possession was dissolved. Upon such evidence as this we think a jury might well be warranted in finding that there had been an actual ouster.” Warfield v. Lindell, 38 Mo. 562; Warfield v. Lindell, 30 Mo. 272; Lapeyre v. Paul et al., 47 Mo. 586.

Moreover, before the death of Edmund P. Hutson in January, 1892, he made a will by which he devised the land to his wife and children, defendants herein.

The evidence adduced on the part of defendants fully justified the finding that there was an ouster of plaintiffs by Edmund P. Hutson and that defendants were at the time of the institution of this suit holding under him as his heirs and legal representatives, and adversely to the plaintiff, even though defendant at some time during his occupancy may have held the. interest of some of the plaintiffs as their agent, and as tenant in common with all of them.

There was, therefore, no error committed in dis- ' missing plaintiffs’ petition, and the judgment in that respect is affirmed, but the finding and judgment of the court to the effect that defendants and Edmund P. Hutson, under whom they claim, had been in the adverse possession of the land for more than ten years before the commencement of this suit will be reversed because unnecessary to a decision of the suit,- the only question being as to the adverse holding of defendants at the time of its institution.

Gantt, P. J., and Sherwood, J., concur.