131 Mo. 495 | Mo. | 1895
This is an action in partition by the devisees and heirs at law of John Snell, deceased, against Brunetta Harrison and Q-eorge W. Harrison, her husband, and the administrator of Harvey Harrison, deceased, in which the plaintiffs obtained judgment and order of sale, and the defendants appeal.
Under this mandate, on the eighteenth of September, 1891, final judgment was rendered in the circuit court in favor of the said plaintiff John R. Snell for the recovery of his said interest in said real estate and for $1,650, the rents and profits thereof from June 1,
‘ ‘First. To the payment of costs and expenses of this proceeding. Second. That seven tenths (7-10) ot the proceeds arising from the sale of the southeast quarter of the southwest quarter and the southwest quarter of the southeast quarter and seven thirtieths (7-30) of the proceeds arising from the sale of the northwest quarter of the southwest quarter and the northwest quarter of the southeast quarter, all in said section 13, aforesaid, be paid to plaintiffs to be divided among them according to their interests as set forth in the petition. Third. That out of three tenths (3-10) of the proceeds arising from the sale of the said southeast quarter of the southwest quarter of the southeast quarter of said section 13, there be paid to J. W. Harrison, administrator of the estate of Harvey Harrison, said mortgage debt, to wit, the sum of $607.28 with interest thereon at ten per cent from the fifth day of April,*500 1893, if three tenths (3-10) of the proceeds arising from the sale of the two last described forties be sufficient to pay the same. Fourth. That out of the remaining proceeds of the sale of Brunetta Harrison’s interest in all said lands be paid the plaintiffs the sum of $1,364, the rents aforesaid, which is hereby declared to be a lien and charge upon the interest of said Brunetta Harrison. That the balance of the proceeds of such sale, after paying and satisfying the disbursements and distributive shares of plaintiffs, hereinbefore set out, be paid to Brunetta Harrison.”
The defendant Brunetta Harrison, in her answer, denied plaintiff’s ownership and tenancy in common with her of the premises sought to be divided, and pleaded adverse possession for more than ten years, and now insists that her plea ought to have been sustained, and the refusal of the circuit court to do so presents the controlling question in the case.
The undisputed facts are that the said Brunetta Harrison and her husband' have been in the actual and exclusive possession of the premises ever since the plaintiff trustee acquired title in 1878, claiming title thereto under the several fraudulent conveyances described in, and set aside and annulled in, the foregoing suits in pursuance of the judgment of this court, and the plaintiff John R. Snell has been continually striving through the courts to have these conveyances set aside and the true state of the title disclosed, and to obtain for the estate of his father whatever interest therein he might be entitled to. These efforts culminated in the final judgment of September 18, 1891, rendered in pursuance of the mandate of this court, by which for the first time, the respective rights and interests of the parties were finally and definitely ascertained and settled, and the right of the said plain
It seems that the writ of restitution awarded in that judgment was notin fact issued or executed, but instead this proceeding in partition was instituted as hereinbefore stated within less than a year from the date of that judgment, to have said plaintiff’s share thus ascertained set off to them. The suit in which the judgment in ejectment was rendered was commenced on the twenty-secoud day of May, 1885, and prosecuted uninterruptedly to judgment, and the only ground upon which it can be held that the defendant’s possession was not interrupted thereby, so as to prevent the running of the statute of limitations in their favor is the technical one, that under and by virtue of that judgment the plaintiff was not put in actual possession of the premises before beginning the' present action in partition, and counsel insist that we must so hold, on the authority of Mabary v. Dollarhide, 98 Mo. 198.
The point ruled in that case was “that the mere fact that the defendants in an ejectment suit dismissed their appeal after judgment against them, does not amount to an abandonment of all adverse claims to the land;” in reaching which conclusion the learned judge who wrote the opinion deemed it necessary to inquire “whether a judgment in ejectment, not followed up by a writ, or by taking possession under it, will break the adverse possession of those against whom it is rendered” — cited two cases from which an affirmative answer might be drawn, viz. : Brolaskey v. McClain, 61 Pa. St. 146, and Gower v. Quinlan, 40 Mich. 572; and three for a negative answer to the question, viz.: Smith v. Trabue, 1 McLean, 87; Doe v. Reynolds, 27 Ala. 364, and Jackson v. Haviland, 13 Johns. (N. Y.) 229, and said: “We are not aware of any decision of this
As to the cases cited in that opinion in support of the proposition that a mere recovery of a judgment in an action of ejectment can not suspend the running of the statute of limitation, it is only necessary to say, that in the case in 1 McLean, the court says: “Judgment was obtained in the ejectment at November term, 1818, and the writ of possession under which Evans was turned out of possession did not issue until the seventeenth of November, 1829. Here was a lapse of eleven years, being four years more than the limitation fixed by the statute.” And in the other two cases (27 Ala. and 13 Johns.), which were judgments on declarations in ejectment as at -common law, the term of the demise had expired, and it was upon that fact the rulings were predicated. In each case the court cited as authority the dicta of Lord Mansfield in Aslin v. Parkin, 2 Burr. 667, that a judgment in ejectment, “like all others, only concludes the' parties as to the subject-matter of it. Therefore, beyond the time laid in the demise, it proves nothing at all.” In these cases the judgments had, by the lapse of timei after their rendition, lost their force and effect, and the defendant’s possession was not subordinate to them.
In fact, in cases like the one in hand, in which a tenant in common recovers an undivided share from his cotenant in possession, the only practical way of executing the judgment is by proceeding in partition, as was done in this case, and in order to commence such action it was not necessary to go through the empty form of issuing a writ and putting the plaintiff In possession of the premises, which he could only hold in common with his antagonist either to save his rights as against the defendant’s possession, or to authorize him to sue as a tenant in common.
The plaintiff trustee in this litigation has pursued the course marked out for one in his situation by this court in Lambert v. Blumenthal, 26 Mo. 471, in which it was said: “Where one as in the adverse possession of land, claiming it exclusively against all others, one claiming title and out of possession cán not maintain a suit for partition. He-must first try his right in an
The court committed no error in refusing to sustain the demurrer to the evidence and defendant’s plea of the statute of limitations. So far as the case of Mabary v. Dollarhide, 98 Mo. 198, may be in conflict with this ruling, the same ought to be, and is, overruled.
On the whole record we find no reversible error.