Opinion
No. 43031.
April 13, 1953. Rehearing Denied May 11, 1953.
APPEAL FROM THE CIRCUIT COURT OF LAFAYETTE COUNTY, PHIL H. COOK, J.
Ike Skelton, Lexington (Skelton Bradley, Lexington, of counsel), for appellants.
E. A. Farris, Richmond, William Aull, Jr., Lexington (Aull Aull, Lexington, of counsel), for respondents.
Plaintiffs, husband and wife, alleging ownership thereof, brought this action to quiet title to a strip of farm land in Ray County, Missouri, said to be approximately 24 feet in width and to extend approximately 700 feet in a generally easterly and westerly direction. Defendants, husband and wife, denied plaintiffs' title and alleged record title in themselves; pleaded the ten-year statute of limitations in bar of the action and claimed title in themselves by adverse possession; and alleged that plaintiffs, by the acts and conduct of themselves and their predecessors, were estopped to assert any title they had. The case, upon change of venue to the Circuit Court of Lafayette County, was tried to the court, which found the issues in favor of plaintiffs and rendered judgment as prayed in the petition. Defendants appealed.
The strip of land here involved was formerly a portion of the north half of an old public highway which was abandoned in 1929 when State Highway No. 10, paved with concrete, was constructed a short distance south thereof. The old highway is sometimes referred to in the evidence and in certain conveyances as the "Richmond and Morton Road", sometimes as the "old state road," and sometimes as the "county road". Plaintiffs' farm lies north of the old road; defendants' farm south thereof.
The common source of title is Nannie E. Wylie, who in 1873 acquired title to both farms. Consequently, it may be here stated as a matter of law that upon acquisition of the title to the land on both sides of the stretch of old road here involved she became the owner of the entire road, subject only to the easement of its user as a public highway. Grant v. Moon, 128 Mo. 43, 48, 30 S.W. 328; American Steel Wire Co. v. City of St. Louis, 354 Mo. 692, 699, 190 S.W.2d 919, 923.
On April 1, 1893, Nannie E. Wylie conveyed the land south of the road to Felix Miller. This tract lay in the east half of the northwest quarter of Sec. 33, Twp. 52, R. 27. The deed described the portion of the northern boundary line fronting upon the stretch of road here involved as running "to center of the county road thence with same * * *." This same tract of land, through mesne conveyances, was conveyed to defendants in 1928. In each of these conveyances the tract was described as that part of the east half of the northwest quarter of Section 33 "lying on the south side of the Richmond and Morton public road * * *." Hence, it is clear that defendants never obtained record title to any portion of the north half of the old road between their and plaintiffs' farms.
Nannie E. Wylie died in 1903 still owning the land lying north of the road. Her will described that tract as being the real estate conveyed to her in 1873, except that part of said real estate in Section 33 which lies south of the public road conveyed to Felix G. Miller by deed dated April 1, 1893. She devised the property, insofar as pertinent to the issues here presented, in this manner: First, a life estate to her husband, who is long since dead; and then, subject to said life estate, in trust to a third person for the occupancy, use and benefit of William Q. McClane, a nephew, and Jennie M. McClane, a niece, so long as both or either should live. Upon the death of the survivor, the trust was to terminate and the title was to vest in their descendants, or if either left no descendants, then in the descendants of the other. The niece, Jennie, predeceased the nephew, William, leaving no descendants. William lived upon and was in possession of the farm for many years prior to his death in 1941. He left as his sole descendant a daughter, Louise Hotchkiss. Title to and possession of the land lying north of the old road vested in her upon William's death. On August 16, 1944, Louise Hotchkiss conveyed the land to plaintiffs, and plaintiffs entered into possession in 1945. It is the description in this deed upon which defendants base their contention that plaintiffs' land does not include any part of the old road or even abut upon it. It is difficult to reconcile the position now taken by defendants with the position they took at the trial. At the trial defendants' counsel stated that the controversy was whether or not defendants had been in possession of the north side of the road, and that was the only issue in the case. At another time during the trial, the court stated: "It is my understanding that you would not stipulate as to the title to the land up to the center of the road up to that time"; to which counsel for defendants replied: "No, but that's a matter of the operation of the law. We have stipulated that they own the land down to the road on both sides, and it becomes a question of law as to who owns the center." But, be that as it may, we will undertake to determine the issue upon its merits.
In order to understand the matter more readily, certain facts should be here noted: First, the stretch of the old road here involved lies south of the section line between Section 33 and Section 28 immediately north thereof. The old road enters the eastern boundary line of the east half of the northwest quarter of Section 33 some distance south of the line between Sections 33 and 28, and then extends in a broad curving manner northwestwardly for a distance of 1000 or more feet until it finally intersects the section line between Sections 33 and 28, from which point it may be said to generally coincide with that line. Second, defendants' land includes only that part of the east half of the northwest quarter of Section 33 lying south of the old road.
With these facts in mind, we revert now to the description in plaintiffs' deed, which is: "A part of Section Twenty-eight (28), Township Fifty-two, (52), Range Twenty-seven (27), described as follows: Beginning at a point on the south line of said Section 28, 759.0 feet East of the Southwest corner of said Section 28, thence North 3133 feet to the center of Crooked River, thence following the meanderings of said Crooked River downstream to a certain ravine along the West line of the land formerly owned by Olive E. Brown, thence in a Southwesterly direction along said ravine to the Old State road, thence along the Old State road to an intersection with the south line of said Section 28, thence West along the South line of Section 28 to the place of beginning, and containing 247 acres, more or less." Defendants say this deed conveys no land beyond the southern line of Section 28; and, of course, if it does not, then plaintiffs' land does not extend south to the old road. This claim is based upon the general recital at the beginning of the description, which refers to the land as being "a part of Section Twenty-eight * * * described as follows: * * *." But defendants do not contend that the detailed description therein following does not make the "old state road" a part of the southern boundary of plaintiffs' land; nor do they deny that part of the old road here involved lies south of the south line of Section 28; their own plat so shows it.
There can be little doubt that Louise Hotchkiss intended to convey to plaintiffs all of the land coming to her under the will of Nannie E. Wylie; she so testified. But more important, we think, is the fact that the old road in and of itself constituted a monument of the boundary line between these farms and as such would be controlling. We hold that the description referring to the "old state road" as being a part of the southern boundary line governs over the recital in the deed as to the land being in Section 28, and that by the deed referred to plaintiffs acquired record title to the center of the portion of the old highway by them claimed in this action. See Peterson v. Beha, 161 Mo. 513, 62 S.W. 462; Burnham's Heirs v. Hitt, 143 Mo. 414, 45 S.W. 368; Gill on Missouri Titles, 3rd Ed., § 145, p. 123.
Defendants insist that plaintiffs' action is barred by the ten-year statute of limitations, Section 516.010 RSMo 1949, V. A.M.S., and that the evidence establishes that they went into possession of the strip in 1930 and that their possession has ripened into title by adverse possession. This contention is based upon defendant Fred Lee's testimony that from 1930 until plaintiffs became the owners of the farm William Q. McClane, who lived thereon, had full knowledge of and agreed to their possession of this strip. The view we take of the case makes it unnecessary to set forth the testimony of each of the parties and their respective witnesses bearing on this question.
In so contending, defendants overlook the fact that William's interest was that of a life tenant. Until his death in 1941, the right of occupancy and full beneficial interest in, but not title to, the farm now owned by plaintiffs was vested, first, in Nannie E. Wylie's husband until his death, and thereafter jointly vested in William Q. McClane and Jennie McClane until her death, and thereafter solely in William; and that until William's death in 1941 neither plaintiffs nor their predecessor, Louise Hotchkiss, had any right of possession whatsoever. Therefore, any action brought for possession by Louise Hotchkiss, as remainderman, prior to the death of her father, William, would have been premature and could not have been maintained. Consequently, the statute of limitations did not begin to run until his death in 1941. Willis v. Robinson, 291 Mo. 650, 237 S.W. 1030, 1035; Falvey v. Hicks, 315 Mo. 442, 286 S.W. 385, 389; Miller v. Proctor, 330 Mo. 43, 49 S.W.2d 84, 87. The suit, brought within ten years after his death, to wit: on October 28, 1948, is not barred by the statute. And it follows as a necessary corollary that defendants did not establish title by adverse possession. Allen v. Wiseman, 359 Mo. 1026, 224 S.W.2d 1010, 1012.
In support of their plea of estoppel, defendants rely strongly upon their testimony to the effect that during William Q. McClane's lifetime he stood by, acquiesced in and consented to their activities in fertilizing, cultivating, sowing and planting upon and reaping crops from the strip. What we have heretofore said as to William's rights to this land disposes of that contention. His conduct and actions could in no way be binding upon the remainder-man or her grantees, plaintiffs herein.
But defendants further assert that plaintiffs stood by inactive from the time they acquired the land in 1945 until the suit was brought in October, 1948, and saw defendants farming the strip, filling the old roadway with earth, and otherwise exercising dominion over it. The record does not bear out this contention. It is true defendant Fred Lee testified that it was not until plaintiffs came into possession of the farm that any question was raised as to defendants' rights to the strip, but the record clearly reflects that plaintiffs challenged defendants' rights thereto shortly after they entered into possession and endeavored to settle the controversy. Whatever defendants did thereafter they did with full knowledge that plaintiffs were not acquiescent. The elements of estoppel are not present. Prouse v. Schmidt, Mo.Sup., 156 S.W.2d 919, 921.
The judgment and decree of the trial court should be and is affirmed.
All concur.