221 Mo. 362 | Mo. | 1909
This is an action under section 650, Eevised Statutes 1899; to have the title to the south half of lot one of the southwest quarter of section 31, township 30, range 12, in Cape Girardeau county, decreed to the plaintiffs as against the defendants.
The cause was heard at the April term, 1908, and an opinion rendered in which the judgment of the court of common pleas was affirmed. The learned counsel for the appellants felt that this court had misapprehended the facts in the record and a rehearing was granted. The cause has now been reheard and submitted upon argument.
The statement of the case by Judge Burgess on the former hearing comprises all that is necessary of the record for a decision of the controverted points and hence we will avail ourselves of it.
“The petition is in the usual form, alleging that plaintiffs are the owners of said land, and that the defendants claim and assert some title or interest therein adverse to plaintiffs.
“Defendants Conrad Lind, Eobert Amos, Frederick Amos and A. E. Summerlin joined in the same answer, in which they plead the ten-year Statute of Limitations. The answer then alleges, in substánce, that Eobert W. Eenfroe, at the time of his death in 1888, and for a long time prior thereto, was the owner in fee of the premises in suit, and occupied the same as a homestead, and that plaintiffs and their immediate grantors had done certain acts by which they are estopped from asserting title. The answer then proceeds as follows:
“ ‘For another and further answer to plaintiffs’ petition herein, defendants say that there is a mis
“The defendants Early Renfroe and Nora Renfroe filed answer, in which they deny all the allegations in the petition.
“The trial resulted in a finding and judgment for defendants, dismissing plaintiffs’ petition, and rendering judgment against plaintiffs for costs.
“In due time plaintiffs filed motion for a new trial, which was overruled, and exceptions saved.
“It appears from the record that the town limits of the town of Allenville extend into the east side of said south half of lot one, and that the several pieces of ground claimed hy defendants Robert Amos, Conrad Lind and A. E. Summerlin are small tracts or lots lying within said town limits and in the southeast corner of said south half of lot one.
“It is conceded by plaintiffs that Frederick Amos was inadvertently joined as a defendant.
“Defendants Early Renfroe and Nora Renfroe, heirs at law of Robert W. Renfroe, deceased, claim to own the balance of the land in suit.
“Upon the trial it was admitted: 1. That David Renfroe was the common source of title. 2. That he died about 1860 or 1862, leaving by his first wife, three sons, Thomas A. Renfroe, John W. Renfroe and Joel E. Renfroe, and by his second wife, one son, Robert W. Renfroe. 3. That Thomas A. Renfroe, son of David Renfroe, died intestate, leaving his widow, Medora Renfroe, and two children, Cora B. Renfroe and Thomas A. Renfroe. 4. That Cora B. Renfroe, daughter of Thomas A. Renfroe, married a man by the name of Schulz.
“Plaintiff Meisenheimer showed a regular chain of paper title to the undivided interests in the land in question of Joel E. Renfroe and Thomas A. Renfroe, being one undivided half of the south half of said lot one, and is the owner thereof unless, by reason of the Statute of Limitations, title has become vested in the defendants in this suit, or unless plaintiff and his grantors, by reason of some act of theirs, are estopped from claiming said land or any interest therein.
“Defendants contend that under the evidence they have made a perfect case of adverse possession under color of title, and as proof thereof cite: (a) The petition in ejectment of Charles F. Hinrichs and
“The judgment in that case was a voluntary non-suit, and the proceedings in the case tend to show that the defendant therein, at the'time of. the institution of the suit on the 9th day of November, 1887, was in the actual possession of said land, claiming it as his own, adversely to all others and especially the plaintiffs in said suit.
“The suit of Charles P. Hinrichs, Medora Renfroe, Cora B. Schulz and - Schulz, her husband, and Thomas A. Renfroe (plaintiff’s immediate grantors) against Henry O. Hinton, L. J. Summerlin and David Iiumbrey, lessees of Jasper N. Dudley, filed in the court of common pleas of Cape Girardeau county, on March 3, 1895, was for the possession of the same land, and while the abstract does not show what the defense was or that an answer was ever filed, or show what the allegations in the petition were, it will be presumed; as it was an action in ejectment — a possessory action — that the defendants in said suit were in possession of the land at the time of its institution. ’ ’
I. As to the small tracts of land claimed by the defendants, Robert Amos, Conrad Lind and A. E. Summerlin, and particularly described in their answers, the plaintiffs now concede in their final argument and brief in this case that they cannot recover
II. The contest is narrowed down to the title to the undivided one-half of the south half of said lot one of the southwest quarter of section 31, township 30, range 12, which plaintiffs claim as grantees of the heirs of Joel E. and Thomas A. Renfroe.
Plaintiffs undertook to show that they had also acquired the title of Robert W. Renfroe by virtue of a sheriff’s deed, but they admit now that the said deed was void and they acquired no title to the undivided one-fourth originally descended to Robert W. Renfroe from his father David Renfroe, and that his heirs, Early Renfroe and Nora Renfroe, are clearly entitled to the said one-fourth of said land as the heirs of their father Robert as against plaintiffs. So far as the disclosures of the record are concerned, the one-fourth interest inherited by John W. Renfroe from his father David was unaffected by the decree of the court of common pleas, as neither he nor his heirs were made parties to the suit and there was no effort made to show that he had ever disposed of the same, or whether he was still alive or not.
The important question then is whether there was sufficient evidence to overcome the presumption that the possession of Robert Renfroe and his heirs was the possession of the other tenants in common and other grantees.
Robert Amos, one of the defendants, testified that he knew Robert Renfroe in his lifetime and that said Robert and his tenants were the only persons in possession of the land between the railroad and the White Water River on the west side of the gravel road; that Robert Renfroe’s mother was in posses
J. N. Dudley, stepfather of the minor defendants, testified that he had been in possession of the lands between the railroad and the “White Water River, west of the gravel road, for eleven years, and that Cordelia Renfroe, his wife and the mother of the minor defendants, was in possession before that time; that he took down one of the houses on this land; that the defendants claim this property in its entirety, and that nobody but the defendants had been in possession of it. This witness also testified that he never recognized any right of plaintiffs’ grantors to any of said land, and never paid over to them any part of the rent during the eleven years that he was in possession of this property for the minor defendants.
The evidence also showed that the taxes on this land were paid, off and on, by .Elizabeth Renfroe, and after her death, by Robert W. Renfroe (father of the minor defendants), and then by his widow, Cordelia Renfroe, mother of the minor defendants, the whole covering a period of sixteen years, from 1877 to 1892 inclusive. It does not appear that plaintiffs, or any other person under whom they claim title, ever paid taxes upon this land, or exercised ownership over it.
It is the earnest contention of the plaintiffs that' the possession of Robert W. Renfroe and his widow and children was prima-facie the possession of the plaintiffs and their grantors who were the owners of the shares of Joel E. and Thomas A. Renfroe and that the evidence is not sufficient to establish adverse possession by said Robert Renfroe and his heirs as against his said cotenants.