*1 Lucy (2d)W. Waldrup, Appellant. E. M. Tidwell Two,
Division June (1028) *2 Homer F. Spradling appellant. Williams and & Strom for C. P. Damron respondent. for
BOHLING, M. Tidwell, August 7, C. E. an instituted ejectment against Lucy proceeding Waldrup possession to recover County, Waldrup Bollinger acres of Missouri. 5Vz possession alleging title adverse alleging
answered lawful Ann., (see pp. 1004, E. Mo. Stat. Sees. 852), quiet equity to up secs. set a cross-action in judgment appealed said real from a determine tbe title to estate. She plaintiff. for
Benjamin is the of title. He died L. Hitt common source portion leaving widow, daughters surviving. a A two and a son controversy partitioned his real in 1920. in- estate was in kind This part daughters— partitioned volves a Mr. two of the lands Hitt’s was Mrs. Edna and Euth. At the Mr. Hitt’s Edna time of death brother, eight. Weisenborn a older than and Euth was minor of The Euth, commissioners, appointed also a minor. court three one according surveyor, partition They, to their real estate. report plat therewith, and a off to Hitt acres of filed set Euth *3 lay land, of immediately the 20 east and west acre tract of which joined deciding how the land set off Weisenborn. After to Edna. commissioners, acting through the land partitioned, was be the to doing surveyor, parcels. the undertook to the several In stake out só they placed along side of Euth north and south the west the stakes 20 Hitt’s in such take west side acre tract manner as to from the there- of and add Edna lands acres in on to Weisenborn’s the con- 5% 1920, troversy. fence, stakes, A conforming in and to the was erected possession respective ever since of the held of the owners tracts have respective and the lands on their of said fence. Mrs. cultivated sides Weisenborn her soon she had more testified that husband discovered sister; it her her; land than was allotted to that was with discussed age adjust she when her became of that to matter sister intended the claiming and that and intention of more land she did not had no Weisenborn, August, partitioned than was her. in to Mr. and Mrs. 1925, partitioned a to and delivered of trust on the land executed deed Null, trustee, Mrs. to an indebtedness Weisenborn to L. H. secure Mr. In 1928 Euth Hitt married William Jones. due defendant. and that land was short Jones cultivated the land his wife’s discovered acreage. the matter discussed with in testified that was Mrs. Jones said Weisenborn; Mrs. that Mrs. Weisenborn she and her husband they straighten it out. Weisen- had it and that would discussed deed, a and under trustee’s dated deed of was foreclosed born trust 9, of the 1929, defendant became the record owner November originally About 1936 Mrs. partitioned Edna Hitt Weisenborn. to plaintiff. conveyed 60 Mrs. Jones’ acre tract to Jones and her husband shortage acres; 20 with Mrs. conferred He soon a discovered instituted surveyed, and thereafter this Waldrup; real had the estate action. conveyance 1936, plaintiff and, in her Euth Hitt Jones after right acres and the legal title the involved to paper have held 5% by prior possession of Mrs. precluded unless possess the same to possession Defendant came into' and defendant. first Weisenborn in proceedings 1929, plaintiff since foreclosure in under the by is essential this action in it to title stituted defendant’s posses possession prior possession that she tack to her adverse Defendant she has no record title sion Mrs. Weisenborn. concedes of Weisenborn, record, Mrs. to the acres. under instant never 5% beyond partitioned originally title the true claimed line lands By trust, including her. her deed to of executed not acres, impliedly of ownership Weisenborn disclaimed said 5% acres. When possession informed that she had more land 5% rightfully hers, she, possession than was before her could have cul by possession, affirmatively minated into title adverse her sister impliedly only and to defendant disclosed her intention to claim consequent the true line wherever and whenever it was established and ly disclaimed title to lands not within the true of her boundaries When a possessor naught lands. disclaims title there is for the operate upon by possession. flux of time to to' effect title adverse Henderson, v. 566, 573, 156 Mo. 57 S. W. 79 Am. [Baber Rep. 540; City St. Scarritt, Kansas 69 W. Mo. Since presume wrong, possession the law does not a 285.] per merely occupation by right, se consequently evidences and title by prescription or limitation has its quality foundation extent of the interest the possessor possession claimed with the — statutory claim ownership for period. In the circumstances considered, the trial court must have and the record does not war rant ruling contra, our that per Mrs. Weisenborn’s missive, sufferance, possession by dignity did not rise to such as to *4 against grounds sister, .furnish for a disseisin her in and of itself superior the foreclosure of her rights. deed of trust transmitted no Putnam, 924, v. 937, 936, [Courtner 325 Mo. (2d) 126, 30 W. S. 896; ; Ward, 895, 131 Swope v. 316, 185 [6, Mo. 84 S. W. 10] Smith, 189; Patton v. 240, 231, 187, 171 Mo. 71 W. v. S. Bell (Mo.), Barrett (2d) 76 394, ; S. W. Thompson, Baker v. 396[3] 509(II), 500, 214 497, Mo. 114 499(2); Quisenberry S. W. v. Stewart (Mo.), ; 219 S. W. Mining v. Missouri Co. Lumber & 627[5] (Mo.), Chronister 259 S. W. far as Mrs.'Weisen So 1044[2].] born’s only result, influences the succeeded to defendant permissive (Mo.), its character. v. 175 W. Cates [Eaton Dillard, Pioneer Cooperage Co. v. [1], 332 Mo. 800 954[6].] S. 59 W. (2d) 642, by 643 defendant, distinguishable stressed is in [1], possessor that the held all the claiming land within the enclosure the fence to be the true line and the his. north The and fence, south line, upon erected in 1920 what was thought to be the true understanding was not erected with the that, in the event it was line, not the true it should constitute the
1032 an boundary respective facts do lands. The not establish between the boundary (2d) agreed (Mo.), line. Barrett 76 S. W. v. [Bell Quisenberry W. cited; (Mo.), 219 S. and cases Stewart 397[3], Smith, 242(II), W. ; 171 Mo. 71 S. Patton v. 626[4] 190(2).] accepted Weisenborn testified that before she the Defendant the real estate and the acres were deed of trust 1925 she viewed 5Yz testimony gave She no concern within Weisenborn enclosures. the any by or ing made Mrs. Weisenborn or Mrs. Jones any statements speak respect to acres. person to for them with the authorized 5% purchased the real estate the sale. She She thereafter at foreclosure plain party she her and contends that is the innocent and between tiff, title, plaintiff the loss who succeeded Jones’ must stand to ownership. estopped and is to assert The record establishes that general lands, plaintiff knowledge purchased had of the the acres originally from without partitioned to Mrs. Jones the record and inspection, part of detailed and that the acres were involved 5% description plaintiff’s so purchased the real and within the estate shortage ploughed deed. He discovered when first the acre the he appears occupy plaintiff approximately tract. that and defendant It any positions respect estoppel. like with to issues of .innocence and testimony give What if trial did credence to the court not defendant’s that her she viewed the real estate that the acre tract influenced or 5Yz against finding to the loan ? The far as make defendant. So asserting title, upon this defendant, is concerned while stands casé They originally deed trust of the trustee’s deed as written. do and provisions not are and correctness of their not stand corrected questioned any accident, by reason of fraud or mistake attributable attempt to Mrs. and never Weisenborn. Weisenborns did not Any assumptions to intended to transfer the acres the trustee. 5Yz may owner concerning defendant Mrs. Weisenborn’s have entertained ship merged provisions acres in the of and contradicted were 5Yz by description accepted. To in the of trust she thereafter deed rewriting par of sustain said deed trust for defendant necessitates leading part negotiations up to ties. Mrs. no Jones took trust, nothing knew of the transactions be execution of deed said of circum tween the Weisenborns or the existence defendant and imnosing upon duty position to disclose her to defendant. stances her may proximate cause How? Mrs. Jones’ actions held constitute be long trust as the deed of loss sustained defendant so purport acres? do not cover said trustee’s deed *5 5Yz trial, court transferred At the commencement proceeding quiet title equity conceding to the docket. While cause equity, trying pro ejectment was in defendant asserts error Defendant, ceeding proceedings with equity. participated ejectment on the objection bearing out offered exception, testimony or successfully branch, therefore, position in no is, and now ease assigned. ground error predicate CG., Westimes, concur. Cooley and is affirmed. judgment adopted Bohlinq, C., is foregoing opinion PER CURIAM: The concur. judges All the the court. opinion (2d)W. Barbour, Appellant. v. Charles The State Two, June Division Dampf appellant.
Elliot M. for