*1 1922. -OCTOBER Kremer. Saucier v. MARIA Appellants, et al., ROSE E. SAUCIER KREMER. One,
Division March Reviewing Action Law: Evidence. 1. APPELLATE PRACTICE: at present equitable pleadings quiet A suit to title wherein the no appel- issues, law, law, issues is an action at and the but at findings facts, by bound late cannot review the but is court findings supported sitting jury, of the trial court as a such are if by substantial evidence. try 2. -: -: of Law. In an Declaration action at law by estate, sitting tried as determine title to real court jury, peremptory plaintiff is declaration to find for of law properly is refused if there is substantial title evidence that in defendant. The rule would be the trial same as it jury. before a Independent 3. LIMITATION'S: Adverse Title Possession. title, possession record actual real adverse estate under color period presfiribed by of title for the the Statute of Limitations confers title. necessary
4. -: Notice of Claim to Adverse Cotenants. It is not holding notice actual an adverse and disseizin one co- brought may tenant be home to the others! Such notice be con- structive, presumed and will be when the adverse and oc- claim cupancy open, notorious, of one are exclusive inconsistent possession. with the existence of title others out de- Where predecessors sixty years and her fendant in title for more than by warranty recorded, duly have claimed the whole deeds twenty years, by occupancy and for more than actual culti- by building improvements, vation and a house and and other stable adversely world, have been exclusive to the whole recognizing no claim the heard of whom she never ninety and who claim a half interest under a devise more than years old, open there was such and notorious claim of exclusive ownership as amounted to notice to of her claim adverse complete and their ouster. Quit By Through 5. -: -: Claim Deed Common Source. occupant land, although The actual ho and claim rec- others source, may plead prove ord under a common Spanish grant to the whole aWhere Congress plaintiffs’ ancestor, was confirmed in 1812 Act of conveyed his after death two his four devisees MISSOURI, OP SUPREME COURT
Saucier v. grantee long deed, by quit-claim and a and thereafter their line conveyed warranty deeds, prop- successors, by the whole of his grantee erty, notorious last has been in exclusive and *2 twenty years, possession her fact that for more than adverse originated quit-claim deed from two of said dev- in a record title claim claimants under the other two that she and the isees and up source, preclude setting her from does not under a common by possession the whole to Appeal City Circuit Charles from Louis Court.—Hon. St. Judge. Davis,
B. Affirmed-. Schelp appel- and Walter F.
Harmon Bliss J. lants. proprio vigore,
(1) The Act of
ex
13, 1812,
June
provisions.
persons claiming
in all
under
vested title
its
App.
Tyler
2
212;
1 Mo.
Mo.
Benton,
Wells,
Yasseur v.
v.
Page
11
330;
Seheibel,
521;
Janis,
Gurno
6 Mo.
v.
v.
City-of
City
25 Mo.
v.
167;
Louis,
Mo.
of Carondelet
St.
Harvey,
v.
592;
v.
28 Mo.
Pine
St.
448, 459; Milburn
Louis;
v.
176; St.'Louis
'Schools,
Public
;402 v. Mo. 501. Where Wood, 63 sbjows- parties plaintiff evidence that the irregularities then have a title, source of common. conveyances prior to- source become the common weak- 1922. OCTOBER
Saucier v. litigants hence immaterial. both nesses common to 488; Harrison Machine Mo. Rankin, Ebersole v. Grandy Casey, 235; 200 Mo. v. v. Bowers, Works (5) Lindsey, 76. Where Mo. 595; Smith Mo. these inheritance, devise or take land several heirs some land and where tenants common snch heirs are strangers convey to the their interest heirs of such grantees are likewise tenants common title such strangers conveying. grantees of such heirs not non-conveying heirs to the title descendants Prop- on Real are in common. 1 Washburn also tenants pp. erty (3 Ed.) (6) quality The distinctive unity pos- possession. Their of tenants common right being having oc- each common, session possession, though cupy, such one will held person, presumed be co-tenant, not to adverse to his be *3 ordinarily, so but it be for the is, benefit, held latter’s possession preserving of one far Ms thereto, as possession being in common deemed to be the of tenant (3 Long Property Ed.) p. 566; all. 1 on Real Washbnrn Mr. 197; Benoist 145 McDow, Rothschild, v. 87 Mo. v. Coberly Tyer, ; 196, 201; 408 v. 180 Mo. v. 399, Golden Chapman Coberly, 237; v. 1; 191 Mo. Kullman, Mo. 189 ,v. Cassileggi, 234 Mo. Gault, 457; Robidoux v. Collier App. (7) App. 10 Mo. Hill 12 580. 516; Allen, v. iMo. possession party inis land as one sev- Where open notMng eral of an tenants short common, explicit holding under disclaimer of disavowal an assertion of in himself title, common pos- brought will to the owner, home establish adverse an actual or There must be constructive oust- session. possession before he con- tenant can be er adversely holding in com- to other sidered as tenants friendly. presumption possession is that the mon. The 32 Mo. Prewitt, 558; Collins, v. Mo. Budd v. Johnston 69 Long, Long 609; Mo. Mo. v. v. 87 139; McDow, Estes 71 603; Mo. 105 Eans, Gorden v. 97 Meier v. Meier, 202; Mo. 408; 145 Mo. Rothschild, 399, v. 432; Mo. Benoist Mining v. 200Mo. Jewell, 715; Lumber & Co. Hecke- 707, 464 OF SUPBEME COUBT MISSOURI,
Saucier v. Kremer.
Cooper,
293;
scher v.
203 Mo'. 278,
v. Good-
MoOune
(8)
general
204 Mo.
In
willie,
an
constitute
possession
effective adverse
there must be:
First,
ouster
the real
owner followed
an actual
claimant;
and,
on
second, an intention
part
possess
of the latter
oust
to so
the owner and
Swope
for himself. Meier
v.
432;
v.
105 Mo.
Meier,
inception
mere
notice
act indica-
Some
necessary.
tive
Boggess,
an intent
disseizin is
Hamilton v.
249;
63 Mo.
Budd Collins,
v.
to the institution of
plaintiffs’ recovery,
title,
even if
had had
bars
perfect
S.
E.
1305,
defendant. Sec.
but vests
'Cunningham,
Kir-
196;
Mo. 184,
v.
187
1919; Franklin
Mp.
Soda
v. American
622;
ton
168
Scanned
Bull,
v.
260 Mo.
606;
Mo.
Johnson v. Calvert,
Fountain
161
Co.,
Megaree,
55.'
280 Mo.
Estate Go. v.
457;
41,
Eeal
442,
(2) Conceding
argument
on
that,
sake of
May,
an
day
title to
un-
27th
had
1906',the
of the
and that defendant
suit,
one-half
lands
divided
purchase
a co-
from Fisher became
her
plaintiffs,
possession from
tenant
nevertheless her
accompanied
that time on
manifested and
exercised,
ownership
such
exclusive
such
acts of
outward
unequivocal
and
impart
an
character,
notorious,
overt
import
as.by
such a nature
their own
served to
give
an
notice to the co-tenants that
information and
an actual disseizin was intended
against
38
them.
v. Lindell,
asserted
Warfield
be
v.
264
Allen
Eldred,
148', 151;
Mo.
v.
Mo.
561; Hart
Nickey
43;
244
v.
235 Mo.
357;
Leader,
3Q,
Mo.
Morris,
Musgrove,
309;
Mo.
Lock-
183
Peck
300,
Hendrix
v.
v.
ridge,
236; La
Hudson v.
Mo.
491;
Hudson,
Mo.
97
139
Campbell
Peyre
586;
Mo.
v.
L.
v.
47
Laclede Gas
Paul,
(3)
placing
Mo.
374.
of her own deed
352,
84
Co.,
recording
on
execution
record
day May,
29th
of trust to Fisher on the
an
1906, was
public
open,
ex-
declaration of her claim to
solemn and
gave
ownership,
notice to
her
the world of
clusive
possession from that
her
time
was ad-
claim,
ripened
May
into
30,
hostile,
verse
om
Musgrove, 183
310;
v.
Mo. 300,
1916. Hendrix
Johnson
457;
v.
442-,
Mo.
Hart
264
v.
Mo.
Calvert,
Eldred,
Campbell v. Laclede Gas
Mo.
Co., 151;
352, 148,
necessary
(4)
is not
that such notice
it
should be
And
brought
the ousted
home to'
co-tenant. MeOlanahan v.
Musgrove,
596;
Mo. 579,
Hendrix v.
McClanahan,
Boyce
Ey.
Missouri
309;
v.
Pacific
Mo.
Co.,
Meisenheimer
221 Mo.
593;
Amos,
362, 371;
Mo.
*5
MISSOURI,
OP
COURT
466
SUPREME
v. Kremer.
Saucier
Dnnlap
Griffith,
v.
364;
244
357,
M.'o.
Morris,
Allen v.
342,
v.
157 Mo.
294;
Whittaker,
Mo.
Whittaker
283,
146
Campbell
Lockridge,
v.
560;
Mo. 549,
v.
97
@56; Peck
Peyre
Mo.
La
v.
374;
Paul,
L.
47
352.,
Laclede G. Co.,
585;
38 Mo.
War-
Lindell,
561,
v.
586, 591;
Mo.
Warfield
(5) Appellants not
30 Mo.
282.
272.,
Lindell,
field v.
having
dispute
thirty
in
of land in
been
prior August
not hav-
1, 1918,
consecutive
period
ing paid
thereon for all that
of time,
taxes
re-
bring any
for the
action'
failure
their
to-
further
year
date,
said
covery
within one
from
said
land
recovery
August
forever barred them from
possession,
respondent.
ipso
in the
this
vested title
facto
1884,
Cunningham
Co.,
v.
1909;
R.
Laster
Land
S.
Sec.
Campbell
199;
Mo.
91;
Greer,
Gram
W.
S.
(6)
SMALL, C. Suit city of land in the of St. Louis. acres out in detail their chain of title Plaintiffs set alleges, petition. that on the sixth their It, substance, day Spain granted December, 1796, Government arpents a concession to Gabriel Constant of two hundred bank Peres, on the north of the River of land des grant. That said sued for was this included duly recorded in the United concession was afterwards Congress by the Act Land States Office confirmed in- That 13, 1812. said Gabriel Constant died of June Jr., left as Gabriel heir, Constant, testate and his leaving will about a last 10, 1831, who died October four to. Ms he the land which testament devised Mary daughters, and Julie Lucile Louise, Constance, equally That them. between to be divided Constant, to own dev- heirs, claimed said as OCTOBER. v. Kremer. Saucier *6 daughters grantees Gabriel of four of isees and said Constant, Jr. petition Maria that the defendant,
The further states plaintiffs'in adversely land said claims to Kremer, by title conveyances Louise virtue of mesne from Marie said sufficient and but have not Constance, knowl- edge nature extent of claim. state the said to and prayer to court in conventional form for the
The is. parties ad- decree the estate of the its define .and respective judge defendant; titles the of and plaintiffs are finds the the sole owners, and if the court barring the entered defendant that a decree be forever setting up. claim to said land. frorn title or Defendant’s, and admits title she claims answer of land in the she the owner fee the described avers is every allegation petition, denies each and other and alleges answering, petition. that the answer the by Ftnrther Congress question the land in of 13,1812, Act of June States of United was confirmed Government and of in the State of Missouri, town Carondelet conveyances acquired through now she and that mesne town estate of Carondelet had owns whatever said November, 1851, That on about the 17th of said land. (nee Constant) Constance Franklin Louise and Marie legal representatives (nee Constant), of as the Schults for themselves Constant, Sr., sisters, their Gabriel Constant on or about LeBlond, and Lucile Julie Constant compromise with of effected a November, the 17th whereby they, city consideration Carondelet, city parcel conveyance receiving from said of a certain conveyed by quitclaim interest land, whatever might peti- they in the have had said mentioned city That of Carondelet. said Constant tion to said Julie accepted the fruits of' said Lucile Constant LeBlond city, compromise and that their heirs estopped persons claiming under them are and all from long through asserting series, property. That said conveyances warranty deed the defendant, acquired May Fisher, 29,1906, one J. from S. recorded SUPREME COURT OF MISSOURI, Saucier v. Kremer. city previously of Carondelet whatever said had in still of said said she is the owner up
The un- answer further sets twenty-four-year thirty-year ten-year, der the Statute prayer Limitations. It concludes with a court respective rights try, determine settle parties, titles of the and if the court finds thje barring’ plain- sole to enter a decree owner, persons claiming tiffs and all under them. reply specifically allegations denies the alleges compromise that at the time
answer, said made said Julie Lucile Constant and Constant were *7 Marie .minors, their sisters Louise Franklin and convey Constance were not Schults to authorized said city land said minors and their to the of Caron- way rights delet in no affected of the said minors. But city by authorizing that said of Carondelet, ordinance compromise, recognized ownership said the of the heirs and devisees of Constant, Gabriel to Jr., said land, validity the of the concession of December by Spain. Sr., Gabriel on the Constant, Government of That recognition city account of such the of Carondelet by claiming estopped and the defendant under became it, plaintiffs. to claim title in said adverse That acquired through if city defendant the of Caronde- let, became and now is a tenant-in-common plaintiffs with reply in said land. The then denies all allegations relating of the answer to the title claimed by by the defendant under the Stat- ute prayer of Limitation, and concludes with a for the try respective rights court to determine parties. titles testimony Much validity with reference to the of
Spanish grant plaintiffs’ and confirmation thereof to ancestor, Gabriel Constant, was introduced in evidence. in the But, view necessary we take of the it case, to consider this evidence, because, as we find record judgment appealed under the of the circuit court from, OCTOBER
Saucier v. plaintiffs Limitation, the Statute of are barred grant assuming Spanish valid. said that admitted At the outset of the trial, and Constance Louise Franklin the half interest of Marie in the well vested Schults land was said collectively undivided an that claimed half of said land. prove evidence tended to
Plaintiffs’ grantees of of the devisees heirs and devisees and compromise ordi- Lucile said Julie Constant. plain- put city nance of the evidence Carondelet, purpose com- it for the tiffs, recited that was enacted representatives promising legal Gabriel Con- Franklin and stant, to-wit: Marie Louise Sr., deceased, question Constance the land Schults, who claimed arpents dated virtue of concession of two-hundred said That two- December Constant. said 6, 1796, Gabriel disposed arpents hundred by all been leased out had persons, said the town of 'Carondelet to divers compromise legal representatives by way willing are to describing tract a other tract land, take lieu of said certain authorized ordinance.
it, which was said tending prove evidence Plaintiffs further offered (Mrs. LeBlond-Maxon) that Lucile lived Constant forty-five years about before house away, renting trial. That she then the house to a moved *8 family. negro in The house was still there but was 1890, vacant. a on witness, Mrs. Maxon told she while lived property, the built house her heir- she the to hold ship, property. in it was her Mrs. because Maxon lived city leaving of St. Louis after the died and age ten before suit at the of 95' this tried, was years. regular
Defendant’s evidence consisted a chain of conveyances, starting quitclaim with a deed No dated vember from Marie 17,1851, Louise Franklin and husband city and Constance to the husband, Schults Car August quitclaim then a ondelet; deed dated 17, 1857, Page; city from the to then eon Carondelet Daniel D. MISSOURI, SUPREME COURT OF Saucier v. Kremer. warranty Page, by veyances deed, D. follows, as Daniel August after- al.; T. et to Samuel Glover 4, 1857, dated property partition to allotted a decree wards, L. L. war Glover; 1892, Glover, March 22, James James August warranty ranty Duam; 1894, Thomas 2d, deed to on Bucholz; Thomas Dunn to Charles A. same deed day conveyed property in fee to Thomas Dunn,
Bucholz September notes; on 11th, to secure trlustee, certain property trustee at foreclosure made trus 1897, sold Philip Key, day on deed of tee’s to who same made deed to certain \ trust secure and on November note, 7t 1900, property purchased of trust was foreclosed and deed M. at sale, James Graves trustee’s who obtained tras therefor; M. on'December James teéis warranty by general conveyed Sylvester Graves, deed, to Sylvester May J. on Fisher; J. Fisher , 1906, by general warranty purported convey to wife, deed, property entire fee to said to Maria defendant, All of the chain deeds the defendant’s were properly acknowledged duly shortly aft recorded pnrported convey er dated, the entire Said Maria Kremer, executed May May deed of tilust, dated 2, 1906, and recorded iMjr. purported 1906, convey Schotts, which she trustee, property
the fee to-the entire in trust to secure payment given by of certain notes and she made her, conveying September another deed of trust the fee, dated duly payment 30,1908, and to secure recorded, cer tain other notes. Maria
Defendant, Kremer, testified: That when she purchased property May Syl- 17-', 1906, from vester J. Fisher and wife, in was cultiva- improvements upon tion, no bult had it. im- That she proved property, by grading, putting up buildings, cleaning put out the woods; built a stable, sheds, water. That she cultivated whole fourteen acres as right along bought up farm, truck from the it time she During paid the time of the trial. all that taxes time, she no one made claim to *9 herself, property but None of the plaintiffs ever claimed to OCTOBER.
Saucier v. -un- any that she knew of, in the interest own suit. was summons in this She til she was served with property living four whom sons, the with her five on working Her hus- time the trial. the at the were bought property. years the she before band died seven the sides north, There no on west are fences south property; went have been. she there never When th§ in anywhere around there. there was not house 1906, story-and-a-half high the a frame house a She built property her built in 1908. The cost She $1850-. bouse July. in water last $300. a stable which cost her Put improvements. no other House stable are Made improved boys land so we center of the every foot of The land is all cultivated could work it. always any' parties Do been. not has know brought or their suit; who this never heard of them brought. until live on this claims this suit was toWent property got Cul- after she deed from Fisher. two bought property it in the whole from time she tivated bought when she it. 1906. Had the title examined part of the defendant tended Other evidence on against special that were made out show tax-bills through property persons in the names of the different 1906, claims whom the defendant from 1.885 commenc- ing in 1885 end- name T. Glover of Samuel Sylvester ing Fisher in with the name of J. in the name that were made out
from time the tax-bills Kremer. The record taxes, Maria paid to. but it trial, from date does shows, all were except paid by paid not them that who show purchased. after she evidence further tended show that Defendants family year there or two after colored lived Maxon) people (Mrs. no that the name of LeBlond property from to 1897. That there lived on except no the house house on the after 1900, occupied by the house defendant; buüt family disappeared it was ; colored 1880 that about *10 SUPREME OF MISSOURI, COURT
Saucier v. Kremer. property property on the in suit at but was south all, of it. That for number land was cultivated the purchased by parties before the under whom it, paid-$6',000 she claimed for the title; she paid improvements, and, besides it, other to drain $1000 put in water. $500' The inventory of the estate of Julie in- was Constant property in evidence, troduced and showed this was not belonging inventoried as to her estate. plaintiffs testiniony, At the close all the the of- following fered the declaration of law: de- ‘‘The court clares the law to be that under the law the in evidence plaintiffs collectively cause, this are vested with and en- titled to an undivided one-half in interest the land de- plaintiffs’ petition.” scribed declaration Which law the court refused. other No or instruc- declarations by party given by tions were asked either nor court. the The court took the cause under advisement and at judgment the December term, 1920, rendered favor against plaintiffs defendant and the issues on all the joined plaintiffs. the bill of dismissed After, unsuccessfully moving for the a new trial, plaintiffs appealed to this court. pleadings present
I. The any in this case do not equitable simply but issues, issues at law. Therefore, this equity court cannot the as facts, review but cases, by finding the bound and verdict of the court below,
sitting jury, as a same as purely other action at law. And the BedewingLaW: finding of the lower court on the facts Evidence. cannot be us, disturbed if such find ing support has substantial evidence to it. [First Natl. Bank Wilson, S. W. l. c. cited; cases Sawyer v. French, Mo. 374.] ' plaintiffs
II. The declaration of asked law peremptory refused court awas instruction to property. for the find as to one undivided half was.any if substantial But, there evidence of Yol. 297] OCTOBER y.
Saucier Kremer". property in such title in fee to the whole properly same if declaration was as refused, Schoellkopf, jury. trial been [Jaicks had before Co. v. (Mo.) 486.] S. W. independently III. ref- and without that, We hold validity erence to the of the concession to have claimed plaintiffs, been made the ancient ancestor of the Spanish Gabriel Constant, Government, Limitation. have no g? question, because there substan- *11 overwhelming tial, indeed, if de- evidence to that show perfect fendant did not have a title, record she had a perfect possession. plain- title adverse Therefore, peremptory properly tiffs’ instruction was refused. proposition appellants’ IY. The counsel learned plaintiffs that and defendant in if were tenants common, Spanish
said concession of 1796was valid, possession and therefore adverse not did against plaintiffs run the rea- for Contenants: NoticeofAdverseClaim. son that notice defendant’s ad- no. possession brought plaintiffs verse home or to the predecessors their in title, untenable. Defendant long predecessors line of her in claimed to title property by warranty duly whole deeds recorded sixty years. twenty years more than fully For or more brought, by open next before the suit was the most ownership pos- notorious" acts of she and were in property adversely session of the to all the claim- world, ing; good in recognizing faith to own the whole any person, no especially interest in therein other any plaintiffs any persons not in under whom they claim, of whom or whose claim the defendant had brought. never heard before suit was It is necessary not that actual notice anof holding brought and disseizin be home to co-tenants. may Such presumed notice be constructive be and will to brought have been home to them when the adverse oc- MISSOURI, SUPREME COURT'OP v. Kremer.
Saucier exclusive notorious, title is open, and claim of so cupancy others, existence of any and inconsistent the inference that will raise except the occupant, law out of of notice if there be any possession. to co-tenants, her neither nor the case at bar, In Daniel predecessors title, warranty from the T. dated Page al., August 4,1857, D. Glover et Samuel recog ever before the years brought, over suit was sixty other or of co-tenancy nized the claimed to own the whole vir persons, property by but acknowledged warranty tue their deeds thereto, duly evidence also undisputed and recorded. The shows for more than ten next the suit was brought, before had those under she claims, defendant whom adverse and exclusive under open, notorious, their or exclusive title to all the ownership claim Not but question. possession, claim of title started and continued, in hostility plaintiffs’ but title. The harmony with, which evidence circumstances, facts defendant’s charge prove, abundantly tended sufficient their title with full notice predecessors de the adverse of title claim fendant and her and to show title reason grantors, *12 thereof the defendant. v. Mo. 260 Calvert, [Johnson 310; 442; v. 183 Mo. Allen Mor Musgrove, Hendricks v. 357; 244 Mo. Hutson v. 139 Mo. Misen ris, Hutson, 229; Mo. 362; heimer v. v. 185 Mo. Amos, Swope Ward, v. Mo. 316; Lindell, l. c. Warfield 584-5-6.] 30 Mo. it general And such is the íaw. Cyc. 34, In said: “An unauthorized or sale conveyance unratified or the whole or any specific part thereof metes property by and bounds one tenant by by entry followed common, thereunder exclusive by possession and his grantee under adverse claim of title to or thereof, whole some metes specific part by bounds, and an ouster amounts cotenants; of the other and such conveyance a entire estate coupled possession by the grantee notice to the other actual or cotenants, presumed, OCTOBEB, TEEM, McAllister. Northcutt v. ownership,,
open, notorious acts hostile, exclusive, and ripen may into constitutes adverse which by prescription.” a valid title point against appellants. rule this
We suggested because that, V. It isi also through city ac Carondelet, claimed which by property quired one-half of title to an undivided quitclaim of the two deed made Quit-Claim daughters Constant, Jr., Gabriel four Deed. he had all of whom devised daugh other two title from his claim through a com defendant claim ters, cannot therefore set source of title and defendant mon possession. up adverse whole We title to the agree It contention. is allowable cannot to this may although title under claim record she plead prove also source, common v. [Waddell whole of the to the Chapman, cited.] 292 Mo. 238 S. cases 481,W. judgment
Finding in the of the lower court, no error judgment. it Let be so ordered. Brown we affirm its sitting. Lindsay, CG., foregoing opinion PEE CUBIAM:—The Small, opinion adopted court. of the as the All is C., judges concur. EAGER L.
NANNIE J. NORTHCUTT EVA L. ELIZABETH McALLISTER, MAE WILLIE C. PATTERSON, D. W. PROCTOR, FRANCES SUTTON, VIRGIE T. F. SUTTON, SUTTON Appellants. One, 5, 1923.
Division March *13 (cid:127) Implies Contingency. Where Construction: The Word. If: 1. WILL: grandchildren “if then adds clevises to certain will it,” surviving die, to have ones either these children express contingency. “if” idea of It does word introduces an