*1 Mary Alpha Harry ; M. Moore et Phillips, Hoffman al. R. Bankruptcy Trustee in Hoffman, Appellant. Estate (2d) 39 S. W. 339. One, May 21,
Division 1931.* 31, 1931; Term, Opinion March motion at October filed *NOTE: filed; April Term, rehearing May 21, motion overruled at 1931. *2 Robb & Robb appellant. *4 SpradUng <& for respondent. Dalton
Sam Bond
' n [00] tO STURGIS, C.—This is a suit to determine title under the statute partition Perry acres County, Missouri. petition is in two up counts and legal equitable sets both titles, resulting trust, adverse claim under of owner- *6 of claim any against estoppel and years, ten than for more ship in bank- trustee and her Alpha Hoffman by defendant ownership Fed- the parties, other Certаin defendant. is the real ruptcy, who of deeds hold which Perryville, of the iBank and Land Bank eral respective their defendant, but parties land, ara against the trust controverted. are in the land interests daughter ais Hoffman, who Alpha defendant that conceded is charge is in estate bankrupt whose adjudged an is for and trustee he as such and Phillips, R. Harry of defendant against as and claim up to set has a of creditors benefit the in law the under has Alpha Hoffman interest whatever her mother is This matter. in the wishes her of regardless lаnd, to this and in bank- of her schedule Alpha Hoffman because said is and such land, in this any interest having ruptcy disclaimed trustee way, her In a case. of this in the trial personal attitude her the for so properly her, and on trying force bankruptcy is personally she which land in this creditors, an interest her of benefit Hoffman Alpha claims trustee the answer By his repudiates. her from by inheritance land in this interest a three-fourths owns The sister. deceased a from Moore, and Hilary father, deceased from 'derived plaintiff interest a one-fourth concedes answer Hoffman. Alpha of defendant and sister daughter plaintiff of same additional her an awarded court the trial claimed, and plaintiff The a take election of her reason by all, making one-half interest, Hilary Moore—an husband, her of estate real the part of child’s by a- the ease brought into and trial of this eve on the made election plain- to the awarded also court trial of The- the mendment petition. if proceeds its land, or the on petition, in her lien, claimed a tiff the aftеr plaintiff “paid interest and $1200 partition, for sold .of preservation protection the for husband of death for $7500 for property,” in the heirs the of those rights and good by plaintiff land on placed improvements permanent The land. owned alone she belief under faith Perry- Bank of Bank Land Federal mortgagees, of interests The partitioned. ordered land preserved also were ville, complains though plaintiff appealed, has alone trustee com- error No serious against her. errors of number of a hеre discussed, further not be need same pleadings as to of plained along. to further adverted be will thereof though phases some plaintiff and 1890, husband Moore, died who Hilary common regarded may) be Hoffman, of defendant father at resulting or least trust a claims though title, source funds her own from paid having land lien preferential title acquired he which money by purchase large part in 188ÍÍ along sisters brothers his question money to 1885. so furnished her forms the basis of the trial court’s allowance of $1200. the lien for picture pioneеr
In the presented, Hilary life here Moore, the father, passed husband and away, soon *7 leaving plaintiff, then a aged woman, middle and two daughters, Alpha, the nominal de- fendant here, question and Ida. The tract of belonged had Hilary father of Moore, leaving eight to who in 1880, died chil- dren. When opens,, Hilary living the scene we find Moore on a tract of 132 land, acres of the source of the title to which shown, is not adjoining either question. or close to the 262-aere tract He buys up then the interests of his brothers and sisters in the 262-aсre question tract in pays pay and or contracts each, $100 to them making money $700 in all. This he borrowed from his (plaintiff’s) wife’s Hilary sister. soon work, Moore becomes unable to dies, leaving and purchase money unpaid. this He had spent practically sold and all personal his and effects left little with which carry to on the farm. He also debts, owed other to which was expenses. added the funeral The tract of acres on only which he lived was partly in culti- question vation. The tract of 262 acres in was swamp land, sub- jeсt to overflow from the river and a passing small creek by and through it,- heavy and covered with timber, but, when the water controlled, proved was rich productive be Only land. land, twenty few acres of thirty this perhaps, was then in culti- vation.
This is shown to have been a typical, resolute, pioneer woman, industrious and with ability. considerable She re- never married and at the time of this trial seventy-eight was years old. No administration was had on the Hilary estate of her husband, widow, Moore. The charge this plaintiff, took his property without question anybody. She rented out paid the land and all her including husband’s debts, purchase price of this land. Her own father time, died got about this $500 she from his estate, with savings that and paid and' $700 yet purchase due on the price of this land. The evidence shows that this land was worth more paid by little than the amount thus the widow. personal left the deceased was probably worth less than the widow’s absolute allowances and this for accounts being there no administration. That under the law the widow was entitled to dower land, this is conceded. Whether her rights homestead would cover any part of in question the tract seems doubtful, but the evidence shows question that the now in tract was farmed and used in con- nection with tract, the other which wasi the dwelling house, farm, one quarantine and under the law the widow’s occupa- this; tion and use would cover tract until such time as dower assigned extinguished. homestead were or [Gentry v. Gentry, CO -o -o 202; Grogan Gehrig, 306 Mo. 649;
Mo. Betts v. Grogan, W. S. 36, 41.] rights legal of the was
There can be no doubt that whatever real property, and her two in the widow children deceased’s paid all it personal, the ividow believed that when she had thus chil- preserve it, absolutely, it was hers and that was worth to matter. fully acquiesced in then and later this view dren thought been so made that She testified that she the deeds had controversy differently was know till this the land hers did not took widow, rights, Under view of her arose. charge and collected complete land, full of this rented it out accounting paid improvements without rents, the taxes and own, and full dominion over anyone, treated it as her exercised brought thirty-seven years, whеn this suit was to assert the it for rights daughter years Hoffman. Some three inherited daughter Hilary died, the Ida died without issue after Moore *8 of one-half in fee—this mother from her one-half her the inherited only and theory a life estate of dower that the mother took the took quarantine right the two children plus homestead her and that mother, this question in no that the fee. There was but the remainder her occupy land as own. use, continued to and treat the paid husband’s energy ability, only she not her With admirable and against land, improved but the discharged the liens the debts and confining by changing channel clearing timber, it of and the same building it, other- and ditches so as to drain and creek, of the levees good good also built a putting it in a state cultivation. She wise out-buildings result 1900, about with the dwelling, barn and other per 1890, in hardly ten dollars acre land, which was worth per appears of this trial. also $200 was worth some acre at the time during years plaintiff all since husband’s death these proceeds other rent and of the tract lived on and received the has controversy anywhere which is not in here nor else acres, of 132 shows, plaintiff has same but whether the so far as this record years not disclosed. Some three title to that tract is or a different daughter, Alpha, plaintiff’s died, husband the defendant after with her husband continued to live John Hoffman she married parts the John Hoffman plaintiff on 132-acre tract. farmed with renter, proved generally at least as a to be more of land, of the In he liability an asset. due time added nine children than a pay his mother-in-law to have a and caused number household thе shown security for him. It was that while he con- debts did building dwelling ques- house on the land in in work siderable. carpenter material and work expenses of the were borne tion, any occupy no did he or use At time the land 'by plaintiff. ownership, nor did he or she ever wife’s make virtue of his by lived defendant, wife, any such John Hoffman with his claim. mere he was question but in in on the tract 1913, 1915, farming his with renter, dissatisfied and when became reasons, for other rent, operations, failure to account tenant, it another him to and rented she caused leave this land with thаn up elsewhere he took his residence and soon thereafter her or on her land. Hoffman Alpha suit was commenced
At the time this Phillips Harry It. had bankrupt adjudged a and defendant had been duly Qualified bankruptcy. in trustee as her been annointed bankruptcy agree adjudication of that such "We appointed title to all so the trustee vested exempt Alpha Hoffman not property of involving suits the trustee alone could maintain property. estate and the such This included real bankrupt title to all the time of the thе real at estate held adjudication Lum bankruptcy As said vested the trustee. “ adjudica ber Co. v. 237: ‘On Co., Harvester 215 Mo. l. c. trustee, tion, bankrupt’s title to the vested property became in the possession, placed with actual or constructive custody adjudication operates bankruptcy of the court.’ ‘The which it is taken property bankrupt, seizure of the legal custody legis.’ . . property custodia . in the That jurisdiction subject by judicial competent a court of to seizure process court, and the court, is law of this another the settled jurisdiction prevail.” court which must But first attaches any present in no title or case Hoffman made claim to adjudication terest in this real of bank estate at the time of hen ruptcy estate, and her omits this real schedule of owned *9 by through oversight, design. appears not had but It also that she possession right possession no claimed or of of this land possession fully and the this real estate was control of wholly plaintiff. facts, in this must Under such we deny court, bankruptcy court, trustee’s claim that not the Stаte the presented jurisdiction controversy had to here or determine the- challenge any phase This or interfere of the same. suit does jurisdiction bankruptcy power of to ad with the of the court question presented bankrupt’s property. The is whether minister the extent, all, property if estate is not, at real or and to what Questions juris bankrupt. of that character are within the of the attempt made, if courts. No was could proper diction of the state it court, Federal court been, this case to the and such have to remove procedure way to with the the State court. in no tried interfere (Colo.), question 1101, 158 Pac. a similar Peters v. Bowers In ruled: presented and that court was
862 court, and the brought in the State (plaintiff) her suit “Bowers obliged try her to
only question she was in the here is case whether under the circum Court, or whether claim Federal District the In the ab try case. jurisdiction to the court stances the State had prop real title to otherwise, the providing sence a Federal statute by usually is determined erty by party fаith third good claimed courts, and not of the State by the decisions the local laws as evidenced Ordinarily, a Federal without by summarily bankruptcy court. the right to have her had a (plaintiff) contrary, Bowers to the statute from and quoting After court-” by claim the State tried suit “Bowers further said: considering Act, court Bankruptcy the Peters, and the voluntary bankruptcy solely no right lost naturally have right had to Bankruptcy no she Act takes right, such deprived If to be claim State court. she tried Peters, bankruptcy of than the for reasons other it must be lawful Hаwarden v. bankruptcy statute. [Bardes those found in the and Bank, 205 Vollkommer, 1175; Frank v. 44 Ed. 524, S. L. 178 U. ” 51 L. 521, U. S. Ed. 911.] Am. 790, E. 77 N. 80, Y. Codington, In N. v. Skilton a lien om seeking to establish 985, plaintiff was St. where bank thereof claimed property proceeds and the certain it was the “We think rupt trustee, his the court said: to claimants adverse Bankrupt Act to allow of the intention rights by suits claiming their parties liens to establish property or claims subject such to plenary jurisdiction and not in courts of may be it unless bankrupt court, summary disposition in the court faith.” in bad or made when the claims are frivolous 521, S. 91 U. Eyster Gaff, quoted approval from then with who bankrupt, or the mm debtor of a 403, to-wit: “The L. Ed. him, with loses nonfe property personal to real or contests the The same courts adversary. rights by bankruptcy of his of those has not divested statute contests, and the open hint in such remain v. Hawarden actions.” jurisdiction such [Bardes those courts of further added: The court 44 L. Ed. Bank, 1175.] 178 U. S. judgment of under mean assert course, “'Of we do not from the could be taken fund or State court the may And we contrary law.” court; is the bankruptcy party de made a properly bankruptcy was say the trustee must, We the same. permitted to defend this case fendant plaintiff. point therefore, rule this suit, beginning time plaintiff at the said, have As we of administration doubtless, caused letters acting legal advise *10 thirty-seven years after Hilary Moore of the estate on to be issued proper form filed then due and death, his part of her husband’s a child’s take election to her provided See- of dower as in lieu estate real
863 theory, this plaintiff’s 324 1919. On 325, tions Statutes Revised gave 1890 related back to the of the death time husband’s daugh two to her this land and widow one-third of years daughter a few ters one-third each. Then on the death of one the defend that of later her interest was increased to one-half date this late right of election at ant to one-half. Plaintiff bases her (formerly a theory six months that statute she had until file make and year) grant of after the of letters administration of all the possession in full election, and as she had' been her had, had been her and no administration since husband’s death took The trial court right of not barred or lost. her election was Mc v. support in McFarland view, case, which finds some suggestion made 23, 278 211 and in the Farland, 1,Mo. S. W. view that 500, 264 and also Curry, 483, v. Mo. Investment Co. destroy simply right but limitation do not affect
statutes of right court; such stat for the remedies the assertion [Boyce Railroad, v. always sword. a shield but not a utes are 289 Mo. Phillips, v. & Inv. Co. 598; Bros. Land 583, Mo. Smith 184, Bank, 115 595, 597; 204.] Leete v. State Mo. express of Sec- provisions insists that under recovery of for the 1919, all actions 359, Revised Statutes tion years the death dower barred after ten in real are estate regardless claimed, is whom such dower husband under will lands. We of such possession continued of the widow’s wording of this State, under the law in the settled concede unless right becomes extinct to dower the widow’s statute, is that recovery admeasurement proceeding appropriate an husband’s death. years within ten after is commenced thereof of her may peaceably remain that the widow The fact con- quarantine right or otherwise land under her husband’s having dower for her not occupy same, is no excuse tinues to necessary not is the statute. assigned toll and does her deprived possession of of the! or dower deforced of her she be ten-year Statute of Limitation in motion the land to set husband’s (2d) 930, 942, S. W. Wells, 319 Mo. v. relating to dower. [Cave 496, 201; 483, 175 S. W. Curry, 264 Co. v. 636; Inv. Mo. Belfast 385; v. Rail- 442, 459, 286 S. W. Jodd Mo. Falvey Hicks, 315 v. Scharff, Mo. 611; Edmonds v. W. 239, 168 S. road, 259 Mo. W. 213 S. 823.] husband’s right share her to take child’s as the widow’s And right must be exer- dower, of election such in lieu of is real estate right exists, when her dower dower while her cised assigned 'by failure to have same extinguished right statutory election to рeriod,
within Wells, expires with it. part tahe child’s [Cave *11 864 Thomas, Payne v.
supra;
179;
119
Von Arb
Payne,
v.
Mo. 174,
33,
163 Mo.
42.]
334,
given
by
right
quarantine
Section
And
her
as tlie widow’s
until
only
dower and exists
1919,
Revised Statutes
is an incident of
right
dower
to have
assigned, it
that when the
dower be
also follows
right
quar
assigned expires by
her, her
limitation and is lost to
289
Phillips,
&
v.
Land
Inv. Co.
antine is also lost.
Bros.
[Smith
442,
413; Falvey
Hicks,
233 W.
v.
315 Mo.
579, 594,
Mo.
S.
461.]
holding
the
therefore,
court erred
follows,
trial
part
properly
take a child’s
was
right of the widow to elect to
thereby
an
by
and that she
obtained
her at this late time
exercised
in her husband’s rеal estate.
additional
interest
years
1900,
ten
after.the husband’s
year
It follows that
posses
full
widow,
plaintiff, was in
thereafter,
and
death
reality having
land, claiming
ownership,
entire
but in
of this
sion
legal
Up
only a one-fourth
title to
interest.
rightfully
posses-
to that
she had been
time
gi0n
quarantine
rights
and
under
dower
rights
adverse to the
of the heirs.
possession
was not
[In
and
499; Falvey
264
315
Curry,
483,
Hicks,
v.
Mo.
v.
Mo.
Co.
vestment
plaintiff
time
458, and cases
But
on
cited.]
Hoffman were at most tenants
common of this
defendant
Leaving
plaintiff’s equities, the defendant was
aside
entitled
lаnd.
plaintiff
joint possession of
land with
to three-fourths of
to
obliged
pay
proportion
a like
was
to
of the taxes
the income and
If
necessary upkeep of the farm.
excluded
defendant
appropriated
control
joint possession and
of the land and
from the
claim full ownership
herself under
the entire income to
possession was adverse and set in
so, then her
motion the ten-
to do
year
It is held
Saucier v.
Kremer,
Statute of Limitation.
necessary
461, 473: “It
is not
that actual notice of
Mo.
an adverse
holding
brought home
disseizin be
to co-tenants. Such
notice
presumed
brought
will
to
may
be
have been
be constructive
home
occupancy
the adverse
and claim of
open,
them when
title is so
inconsistent with
notorious,
any
the existence of
exclusive
title
except
occupant, that the law will
raise
others,
the inference
any
co-tenants,
possession.”
if
there be out of
And
of notice
suggested
.
.
that,
is also
.
plain
475: “It
again
page
through a common
claim
source of title
and de
tiffs and
up
title to the
therefore set
whole
cannot
ad
fendant
agree
cannot
to this contention.
We
It is
possession.
allow
verse
although
may
she
claim
defendant,
record title under
for a
able
prove
plead and
title
also
adverse
source, common
”
Chapman,
v.
property.
Mo.
[Waddell
to the
666.]
whole
Railroad,
adverse land for any every brought recover such only and action to character not bars extinguishes claimant’s title therein, an the land or interest but fee, a full title in as much party possession the and confers on possession warranty “Adverse true оwner. so as a deed only independent an title.” action, bars an but confers [Waddell not 633; Bull, v. 168 Mo. 676; 622, 292 Chapman, 666, v. Mo. Kirton 410; v. 168 Scannell American Soda Martin, 407, Mo. Stevens v. 592; 82 587, 606; Cunningham Snow, 161 v. Mo. Co., Mo. Fountain 688, 693; Fugate Pierce, 441; 49 82 v. Mo. Mansfield, v. Mo. Allen 63 596; Boggess, 44 v. Mo. Brodhack, Mo. Hamilton Nelson v. 233.] Alpha Hoffman, who not daughter was acts and conduct of the evincing parol side, may be taken as witness either called as a gift legal title and interest land relinquishment of her this ofi mother, plaintiff, plain- if to her yg thereafter open, exclusive,
“continued notorious and continuously uninterrupted possession premises, paying exercising leasing improving lands, taxes, cultivating, ownership period all acts of on and over it” for of ten the usual period years, and for the same of time the Hoffman nothing it, over had whatever to do with it, no control “exercised it,” case is up any'claim then this within never set facts said, such Bull, 622, the case of as there Kirton v. Mo. It possession confers title.” only action, "adverse not bars but years’ 693: ten is also said in Allen v. 82 Mo. "The Mansfield, gives title title, possession, сonsecutive adverse claim of under occupant conveyance. takes effectually any to the as as written away occupant. to the the title of the transfers it real owner and by pos- party acquires the statute ‘The who to land under a title of the true acquires session all the title owner, adverse to the true ” court The trial precisely if him.’ owner as he had a deed from found, stated, possession adverse held had All twenty-seven bringing years prior this suit. for. necessary to confer title is to find that such advеrse period years, period such need covered a consecutive of ten try bringing suit years preceding the ten be next Cunningham, the title. Mo. 688.] [Allen Giving years prior to com- particular ten attention to last question was rented suit, of this we find that the land in mencement Gouzzin to and two tenants of Dace cultivated *13 being time of the Manche, Frank the last named the tenant at the tenancy covering years. ten- the last seven The other trial and his becoming ant dissatisfied with took over the land when Hoffman, tenant, him vacate husband, John as her had defendant’s year defendant, wife, the close of the 1915. and his then lived at He mother, plaintiff, time, farm, with the a moved to another short questioned Perryviile, in is but that then located Missouri. It respectively plaintiff two land from these tenants rented the and were only, paid rent, tenants her the and took directions her from her They land. knew no other as the sole owner of the landlord. Their every possession possession in way. was her Mrs. Hoffman had nothing do with the land or with as to them tenants and made no unquestioned in plain- claim of the land. is also that interest paid years. during buildings tiff the taxes all these kept She in own name as insured sole owner. point plaintiff money
The is made that when borrowed on this again land in from the Land Bank in when she bor- Perryviile, Bank in rowed from the procuring a loan at an date, daughter, earlier defendant, and husband signed the deeds of clear, trust. The evidence is how- eyer; plaintiff procured tlrat it who was these loans and her own benefit and which defendant had no or say for share so. money paid plaintiff. says The borrowed wаs to She she never sign papers asked the defendant to the loan and never stated that land; parties making the defendant had an interest that the requested required signed or this and that defendant the loans will- discussion, ingly and it that the without "When record is remembered Hilary convyance title was in from de- Moore and no of record was making fendant, daughter, why bis readily party we can see the loan not, however, regard had this done. do this evidence ¥e controlling great weight determining or whether de- even fendant either had or The same claimed an interest this land. condemning true of the fact years ago railroad, that when some a right-of-way joined for a de- land, parties over this Hoffmans as damages wholly fendant. It was shown awarded went plaintiff. against bringing damage same is true suit injury same was crops land, railroad to the that defendant joined plaintiff damages with party plaintiff as a therein. These al- solely so plaintiff. meeting went shown at a It was also proposition landowners called to vote on a with a drain- connected age district, plaintiff only the defendant as well as land- voted when qualified feeling owners were to vote. It was shown that considerable up meeting daughter was worked plaintiff at this said that her did not intend to vote but that other non-landowners were allowed vote, daughter prevailed and her plain- was on to do so without approval representation. tiff’s or The trial heard all court finding plaintiff’s evidence and made his as to possession, adverse disagree him. and we do not with finding plaintiff
Under this as to adverse legal effect of on the land, same title to the the trial court should have found was the sole owner of this land and that Hoffman and her trustee bank- ruptcy right, had no title or interest therein. This unnecessary any finding would have plain- rendered toas haAdng for, tiff lien the land or a for, to be reimbursed money paid purchase price out on the or for im- good provements made faith under the belief that she was the owner; partition sole and no could or should have been awarded un- *14 this, however, the second count. All der is favor, defendant’s harmless, or at least- and defendant complain. trustee cannot No by plaintiff judgment appeal was taken and the must stand toas unnecessary, therefore, is for us her. 'It to determine whether the rightfully plaintiff was entitled to a lien and to be reimbursed preserving expenditures improving land, hen since de- thereby. not, harmed fendant is not We are however, to be taken ruling criticising respect. court’s v. Frey, [Armor 477; Grogan v. Grogan, S. 253 Mo. W. Other 649.] matters briefs, but necessary in the are not discussed are be considered. appellant of which is no error can complain, As there judg- and is affirmed. Seddon and be Ferguson, ment should GG., concur. foregoing opinion PER CURIAM:—The Sturgis, C., adopted judges All of the court. concur. opinion as