Mings v. Mings

782 S.W.2d 165, 1990 Mo. App. LEXIS 28, 1990 WL 424
CourtMissouri Court of Appeals
DecidedJanuary 5, 1990
DocketNo. 16341
StatusPublished

This text of 782 S.W.2d 165 (Mings v. Mings) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mings v. Mings, 782 S.W.2d 165, 1990 Mo. App. LEXIS 28, 1990 WL 424 (Mo. Ct. App. 1990).

Opinion

CROW, Presiding Judge.

Lowell Lee Mings (“Lowell”) appeals from a judgment declaring, insofar as pertinent here, that Lee Roy Mings (“Roy”) is the owner in fee simple of a 120-acre parcel of land (“the Helton tract”) in Wright County. Lowell’s assignment of error is easier understood after a recital of the pertinent facts.

In 1947 Jess and Virgie Helton, as grantors, conveyed the Helton tract by warranty deed to Lowell Vaughn Mings (“Vaughn”).

Vaughn married one Patricia on August 7, 1952.

Lowell was born to Vaughn and Patricia on June 28, 1953.

In September, 1953, Patricia left Vaughn and departed Wright County, taking Lowell with her.

Vaughn died intestate on December 16, 1953, survived by his wife, Patricia, and his son, Lowell.

Vaughn’s estate was probated in Wright County; his mother, Goldie I. Mings (“Goldie”), was administratrix. The Helton tract was not listed in the inventory of Vaughn’s estate.

Over 20 years later, on July 15, 1975, Roy, in his own behalf and as next friend of Daniel Lee Mings (“Daniel”), filed a petition in the Circuit Court of Wright County. The petition alleged, insofar as pertinent here, that the two plaintiffs were owners in fee simple absolute of certain land including the Helton tract. One of the defendants named in that suit was Vaughn, even though he had been dead since 1953. Neither Patricia nor Lowell was named a defendant. The petition averred that the plaintiffs owned the property by reason of adverse possession for “more than 28 years last past.”

On October 28, 1975, the Circuit Court of Wright County entered judgment declaring that the plaintiffs (Roy and Daniel) were vested with fee simple title to the Helton tract and other land.

[166]*166Some seven and a half years later, on April 23, 1983, Lowell and his mother, Patricia (now carrying the surname “Harris”), filed a petition in the Circuit Court of Wright County attacking the judgment of October 28, 1975, insofar as it affected title to the Helton tract. Lowell and Patricia averred they had not been made parties to the 1975 action, had not been summoned, and that Roy and Goldie had concealed the Helton tract from Vaughn’s estate for the purpose of using the tract themselves. Lowell and Patricia pled they had been unaware of the “fraud” and the 1975 suit until May, 1981.

On July 27, 1984, the Circuit Court of Wright County entered “Summary Judgment” setting aside the judgment of October 28, 1975, as to Lowell and Patricia insofar as it vested fee simple title to the Helton tract in Roy and Daniel. The court found that portion of the 1975 judgment was void as to Lowell and Patricia because there was no service of process on them, including service by publication.

On February 19, 1986, a second amended petition was filed in the Circuit Court of Wright County by Clifford Mings, Guardian of the Person and Conservator of the Estate of Lee Roy Mings. The petition carried the same case number as the 1975 action brought by Roy and Daniel. Daniel was not named as a plaintiff (or defendant) in the second amended petition.

The second amended petition alleged, insofar as pertinent here, that Roy is “an incapacitated and disabled person,” that Roy is the fee simple owner of the Helton tract, that Roy and his predecessors in title had been in adverse possession of said tract since 1952, that Patricia and Lowell claim an interest in said tract based on the 1947 deed from Jess and Virgie Helton to Vaughn, and that inasmuch as Patricia and Lowell first asserted their claim in 1983 (by their petition attacking the 1975 judgment) any claim by them is barred by § 516.010, RSMo 1986.1

The circuit court heard evidence August 26, 1988, and on March 21, 1989, entered findings of fact, conclusions of law, and a judgment declaring, among other things, that Roy is the owner in fee simple of the Helton tract. The facts and conclusions set forth hereunder in paragraphs numbered 1 through 8 have been extracted from those authored by the circuit court. To tailor them to this opinion we have reorganized, renumbered, and rewritten them, but their substance remains unchanged.

1. Record title to the Helton tract is in Vaughn. Lowell, as Vaughn’s only lineal descendant, became vested with fee simple title to said tract upon Vaughn’s death, subject to the potential dower interest of Vaughn’s surviving spouse, Patricia, which interest was waived inasmuch as it was never claimed within the applicable period of limitation.

2. Roy is the brother of Vaughn and the son of Goldie. The Helton tract is part of a parcel in excess of 1,000 acres owned and operated as a farm by the Mings family. Roy and Vaughn worked together on the farm. Vaughn died as the result of a logging operation there.

3. Vaughn and Patricia lived on the Mings property, but not the Helton tract, prior to their separation some three months before Vaughn’s death. After Patricia departed with Lowell they returned to the area only occasionally during the next 27 years and only for the purpose of allowing Lowell to visit his grandmother, Goldie.

4. Roy and his wife, Wilma, resided on the Helton tract about one year immediately following their marriage in 1949. Thereafter, during the remainder of Vaughn’s lifetime, Roy and Vaughn used the Helton tract in the joint enterprises of farming and lumbering.

5. For a continuous 27-year period commencing with Vaughn’s death on December [167]*16716, 1953, and running through the end of 1980, Lowell was not in actual or constructive possession of the Helton tract and he exercised no incidents of ownership or possession regarding it. He never traveled to or upon any portion of it and paid no taxes on it.

6. For a continuous 31-year period commencing with 1949 and running through the end of 1980, Roy was in possession of the Helton tract by virtue of residing on it with his wife for a year or so after their 1949 marriage, milking cows on it for a year and constructing cattle corrals on it, renting the house on it to two different parties during the 1950’s, cutting hay on it annually, storing grain in the residence building a number of years, constructing and maintaining fences around it, pasturing cattle on it at least once annually, paying all taxes on it, hiring bulldozing work done on it, leasing grazing rights on it one year during the 1970’s, deeding it to a third party in 1974 (receiving it back later when the grantee failed to pay for it), and posting it against trespassers.

7. Neither Patricia nor Lowell asserted any ownership claim to the Helton tract, nor were they aware they held “record color of title” to it until 1981, and only after 1981 did they make any attempt to claim it.

8. By virtue of his continuous possession of the Helton tract commencing in 1949, Roy would have become vested with ownership by adverse possession by 1960 but for the fact that Lowell, in 1960, was under the disability of minority. Pursuant to § 516.030, RSMo 1959,2 Lowell had an additional three years after reaching age 21 to contest Roy’s claim. That three-year period expired June 28, 1977. Consequently, from that date forward Roy was vested with title to the Helton tract in fee simple absolute, and Lowell’s claim is barred by § 516.010.

Lowell (alone) brings this appeal from the judgment of March 21, 1989. His sole point relied on reads:

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Bluebook (online)
782 S.W.2d 165, 1990 Mo. App. LEXIS 28, 1990 WL 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mings-v-mings-moctapp-1990.