Rusk v. West

235 S.W. 1010, 290 Mo. 433, 1921 Mo. LEXIS 73
CourtSupreme Court of Missouri
DecidedNovember 30, 1921
StatusPublished
Cited by2 cases

This text of 235 S.W. 1010 (Rusk v. West) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rusk v. West, 235 S.W. 1010, 290 Mo. 433, 1921 Mo. LEXIS 73 (Mo. 1921).

Opinion

GRAVES, J.

Suit to quiet title to forty acres of land in Boone County. Petition is in ordinary form. Defendants are husband and wife. The land-to which plaintiff avers that he is the owner in fee is the northeast quarter of the northeast quarter of Section 14, Township 50, of Range 13. Defendant W. W. West alone answered. His answer is (1) that “he has full and complete title by limitations to 7.07 acres off of the southeast corner of the northeast quarter of the northeast quarter of Section 14, in Township 50 of Range 13, in Boone County, Missouri, said land being more particularly described by Survey Number 5854, which appears of record in Book J at page 63 of the Survey Records of Boone County, Missouri, and is in possession thereof;” (2) that plaintiff had full knowledge of" defendant’s title, and when and how he acquired it, and of its exact nature and character, and (3) that the said defendant is the owner in fee simple of the said 7.07 acres of land above described, and that the defendant and those under whom he claims have been in the open, notorious, exclusive and continuous possession of the same, claiming to be the owner thereof, for more than ten years last past before the institution of plaintiff’s suit herein. He then asks that title be determined, and the title to this small tract of 7.07 acres be decreed to be in him.

The reply had better speak for itself, and reads:

“Now comes the plaintiff and for his reply to defendant’s amended answer herein denies each and every allegation therein contained.
“And further replying, the plaintiff states that he claims title to the real estate described in the petition and amended answer herein under one William M. Oliver, by mesne conveyances from said Oliver; that on or about November 26, 1912. said William M. Oliver filed suit in *438 the Circuit Court of Boone County, Missouri, to try, ascertain and determine the title to said real estate, which suit is entitled William M. Oliver, Plaintiff, against The Unknown Heirs, Devisees, Consorts and Alienees of John McDonald, Deceased, And Others, and in which suit said land, with other land, was particularly described; that the defendants in said suit embraced all persons under whom the defendant claims' or might claim title to said real estate, and their unknown heirs, devisees, consorts and alienees, and that the defendant herein was in truth and in fact, as well as law, a party defendant to said suit; that service was duly obtained on said defendants in said action by publication; that thereafter, on March 14, 1914, at the January term, 1914, of said court, said cause was duly and regularly heard by said court, and a decree declaring and perfecting the title to said real estate in said William M. Oliver was duly rendered and entered by said court, which decree is final and binding; on all parties concerned, including the defendant herein.
“And further replying the plaintiff states that on January 11, 1913, after the institution of said suit, he acquired the title of said William M. Oliver and has since been and is the owner in fee simple of said land; that the defendant ha^. actual knowledge of the pendency of said suit, as well as constructive knowledge thereof, and has actual knowledge of, the rendition of said decree at or about the time the same was rendered and never filed any action in said court to review the same, and same has now become final and absolute by virtue of the statute in such cases made and provided, by reason of which facts the defendant is estopped to set up any defense herein against the title of the plaintiff to said land, and said former suit has finally settled, adjudicated and determined the title to said real estate.
“Wherefore, having fully replied, the plaintiff prays judgment in accordance with the prayer of his petition.”

Jury was waived and upon trial before the court, a judgment was entered decreeing title in plaintiff for all *439 the land in the petition described, and defendant has appealed.

Additional Facts. I. Of the knotty little problems, the instant case is one, but when boiled down the issues are really but two. Remembering that it is a law case pare and simple, under the pleadings, the findings of the trial judge upon the questions of fact, if supported by substantial evidence, must stand. Neither the plaintiff nor his predecessors in title (if he has title) have been in possession of this tract of seven ac^es involved herein. By this we mean, since the death of the man who is the admitted common source of title. This admitted common source of title is Joseph S. Fowler, who died in about 1878. The two real questions are: (1) in view of the fact that neither plaintiff nor his immediate grantors have ever been in the possession of this land, did plaintiff make out a paper title thereto, and (2) if he has made out such paper title, has defendant shown title by adverse possession. The trial court found against the defendant on his claim under a rather peculiar finding of facts. The court also found for plaintiff presumably on a paper title from the common source. Appellant contends that neither finding is supported by the evidence. For convenience of the discussion we set out the full findings made by the trial court, thus:

“This cause having been submitted to the court (sitting as a jury) and the court having heard the evidence adduced and the "argument of counsel and being fully advised in the premises, having announced its conclusion, at the request of the defendant doth make a finding of facts as found by the court, which is ordered filed, to-wit:
“That one Joseph S. Fowler, deceased, is a common source of title to the seven-acre tract of land in controversy; that said Joseph S. Fowler died seized and possessed of a considerable body of real estate situated in Boone County, Missouri, including the northeast quarter of the northeast quarter of Section 14, Township 50, *440 Range 13; that about the year 1878, partition proceedings were instituted in the Circuit Court of Boone County by the widow Susan P. Fowler and the heirs for the 'partition of said lands of the said Joseph S. Fowler, deceased; that in said partition proceedings, commissioners were appointed by said court to set off to the said Susan P. Fowler in fee her dower rights in said lands of the deceased, and that said commissioners did set off to the said Susan P. Fowler certain described lands, including a twelve-acre tract described as the east part of the southeast quarter of the northeast quarter, Section 14, Township 50, Range 13; that the balance of the lands included in said partition proceedings and not set off to said Susan P. Fowler were sold in said partition proceedings by the sheriff of Boone County, Missouri; that the said seven-acre tract now in controversy lies immediately north of the north line of the twelve-acre tract above described, and south and east of a bend of Silvers Fork Creek as the same ran in 1878; that a part of the lands so set off to the said Susan P. Fowler was situated immediately east of the said seven-acre tract of land now in dispute and adjoining the same; that said Susan P. Fowler afterwards intermarried with one Reid and became known as Susan P. Reid; that immediately after said lands had been set off to her by the commissioners as aforesaid, the said Susan P.

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Cite This Page — Counsel Stack

Bluebook (online)
235 S.W. 1010, 290 Mo. 433, 1921 Mo. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rusk-v-west-mo-1921.