GRAVES, P. J.
Action under section 1884, Revised Statutes 1909 (formerly section 4268, Revised Statutes 1899), to quiet title to two hundred acres of land in Jasper county, Missouri.
Plaintiffs are the heirs at law of William David Spence, who died April 26, 1907. Defendants are the heirs at law of Newton Spence, a brother of William David Spence. The land in dispute was owned by Samuel Spence, grandfather of plaintiffs and defendants. Samuel .Spence died, intestate, in the year 1859, leaving surviving him his widow, Elizabeth Spence, and his children, William David Spence, Newton Spence, Louis Spence, Lazarus Spence, Millie Bunch and Sarah Hull. It is undisputed in the record that William David Spence had acquired the interests of the widow and all of the heirs, of Samuel Spence by deeds from them to him, except the interest of Newton Spence. This was done by two separate deeds made in the year 1867. The first deed in the record is from Lazarus Spence and Louis Spence and wife. The second is from Sarah Hull and Millie Bunch and their husbands, and the widow, Elizabeth Spence.
The interest of Newton Spence, it is claimed, was acquired.by William D. Spence through a sheriff’s sale in March, 1867. In 1865, Newton Spence seems to have been sued in the circuit court of Jasper county, and his interest in the land attached. Judgment was obtained against him for $1500’ and a special execution was issued against these lands, and the same were properly advertised and sold. The lands are properly described in the return of levy of the sheriff under the writ of attachment, in the judgment and in the notice of sale. An error appears in the deed. The lands are all in range 31, but in the deed they are described as being.in range 32. The execution we do not find in the record.
' The petition is in the usual form for the thirty year Statute of Limitations. Its allegations are full [76]*76and complete. The answer, after certain admissions made therein, asserts that the defendants own one-sixth interest in the land through their father, Newton Spence, and avers that William David Spencer was a tenant in common with their father, and since his death with them. The answer then further proceeds and concludes in this language:
“Defendants further state that since the year 1884, the date of the death of their father, Newton Spence, who was the owner of the undivided one-sixth interest thereof, a part of the defendants herein have lived upon and been in the joint possession with the said William David Spence, living thereon and enjoying the uses and benefits derived therefrom and claiming the undivided one-sixth interest as their own.
“Defendants for further answer state that no notice of any claim of title or ownership either actual or constructive was ever made by the ■ said William David Spence in his lifetime, and that the defendants herein were never informed of any actual or constructive ouster by the said William David Spence, as to the interest in and to said land held by the defendants herein.
“Wherefore, defendants pray the court to ascertain, adjudge and determine the estate, title and interests of the defendants and plaintiffs in and to said real estate and to define and adjudge by its judgment ■or decree, the title, estate and interests of the parties severally in and to said land set out and described in plaintiff’s petition and for all other proper relief and for costs of suit.”
The reply was a general denial of the new matter in the answer.
The trial court found for the plaintiffs and decreed title in them and debarred defendants of all claim to said land. From this judgment, defendants appealed to this court. Further matters in evidence will be reverted to in the course of the opinion.
[77]*77I. S. M. Spence and William J. Spence, two of the plaintiffs, testified as witnesses in the case. Their testimony tended to show the adverse possession of their father of the land in question from 1867. The defendants challenged the competency of these witnesses and now urge that they were not competent to testify.
The statute relied upon by defendants is section 65-2, Revised Statutes 1899, now section 6354, Revised Statutes 1909. The contention by the plaintiffs 'that they have title by adverse possession does not involve a contract between the parents of these respective parties. On this idea of the case, plaintiffs are not claiming under a contract from the deceased, Newton-Spence. There never was, in fact, a contract of conveyance or a conveyance from Newton Spence, the ancestor on the one side, and William David Spence, the-ancestor on the other side. The only things we have-in this case are an inheritance cast by law upon Newton Spence by the death of his father, Samuel Spence,, and the sale of that inheritance by the sheriff to William David Spence. The only instrument which could be called a contract is the attempted deed from the sheriff to the said William David Spence. To that instrument, Newton Spence was not a party. This evidence was not given concerning this deed. The sufficiency of this deed, it is true, is attacked, but only for legal reasons appearing upon the face thereof, and not otherwise. We are of opinion that these witnesses were competent.
This case falls within the facts and law of the case of Golden v. Tyer, 180 Mo. 196. In that case, Nancy M. Golden sued in ejectment for some lands. Tyer claimed title by a deed from Sam Payton,' a brother of Mrs. Golden. Sam Payton had a deed from the Payton heirs, but such deed did not convey the title of Mrs. Golden, one of the Payton heirs. The answer in that case was a general denial and. the Statute [78]*78of Limitations. For plaintiff it was contended that she and Sam Payton, who was then dead, were co-tenants, and for that reason the Statute of Limitations did not run. According to the report of her evidence, Mrs. Golden’s testimony is thus summarized: “Nancy M. Golden, plaintiff, testified-in the cause. Her testimony tends to show that she resided on the premises for .a number of years; that she paid part of the taxes; that her brother, Sam Payton, under whom defendant claims title, paid her rent in accordance with her interest in the land; that she always claimed to be a tenant in common with her brother, Sam Payton.” The competency of Mrs. Golden as a witness was challenged, and this court then said:
“We cannot agree with learned counsel for appellant that she is an incompetent witness.
“It is true at the time this cause was tried, the record discloses that Sam Payton was dead, and it is also conceded that he is the appellant’s grantor; but it does not follow from his death that the plaintiff is rendered incompetent to testify.
‘ ‘ Sam Payton is not a party to this action, nor is or was he a party to the contract which is involved in this suit. The quitclaim deed offered by defendant is not in question; there is no dispute about that deed; this action is not to set aside or change, in any manner, the legal effect of that instrument. It speaks for itself, and its contents must determine its legal effect.
“There is a dispute as to the right of possession between parties, both of whom are living. Sam Pay-ton is not a party, nor is he a necessary party to the determination of this cause, and so far as this action is concerned, has no legal interest in it.
Free access — add to your briefcase to read the full text and ask questions with AI
GRAVES, P. J.
Action under section 1884, Revised Statutes 1909 (formerly section 4268, Revised Statutes 1899), to quiet title to two hundred acres of land in Jasper county, Missouri.
Plaintiffs are the heirs at law of William David Spence, who died April 26, 1907. Defendants are the heirs at law of Newton Spence, a brother of William David Spence. The land in dispute was owned by Samuel Spence, grandfather of plaintiffs and defendants. Samuel .Spence died, intestate, in the year 1859, leaving surviving him his widow, Elizabeth Spence, and his children, William David Spence, Newton Spence, Louis Spence, Lazarus Spence, Millie Bunch and Sarah Hull. It is undisputed in the record that William David Spence had acquired the interests of the widow and all of the heirs, of Samuel Spence by deeds from them to him, except the interest of Newton Spence. This was done by two separate deeds made in the year 1867. The first deed in the record is from Lazarus Spence and Louis Spence and wife. The second is from Sarah Hull and Millie Bunch and their husbands, and the widow, Elizabeth Spence.
The interest of Newton Spence, it is claimed, was acquired.by William D. Spence through a sheriff’s sale in March, 1867. In 1865, Newton Spence seems to have been sued in the circuit court of Jasper county, and his interest in the land attached. Judgment was obtained against him for $1500’ and a special execution was issued against these lands, and the same were properly advertised and sold. The lands are properly described in the return of levy of the sheriff under the writ of attachment, in the judgment and in the notice of sale. An error appears in the deed. The lands are all in range 31, but in the deed they are described as being.in range 32. The execution we do not find in the record.
' The petition is in the usual form for the thirty year Statute of Limitations. Its allegations are full [76]*76and complete. The answer, after certain admissions made therein, asserts that the defendants own one-sixth interest in the land through their father, Newton Spence, and avers that William David Spencer was a tenant in common with their father, and since his death with them. The answer then further proceeds and concludes in this language:
“Defendants further state that since the year 1884, the date of the death of their father, Newton Spence, who was the owner of the undivided one-sixth interest thereof, a part of the defendants herein have lived upon and been in the joint possession with the said William David Spence, living thereon and enjoying the uses and benefits derived therefrom and claiming the undivided one-sixth interest as their own.
“Defendants for further answer state that no notice of any claim of title or ownership either actual or constructive was ever made by the ■ said William David Spence in his lifetime, and that the defendants herein were never informed of any actual or constructive ouster by the said William David Spence, as to the interest in and to said land held by the defendants herein.
“Wherefore, defendants pray the court to ascertain, adjudge and determine the estate, title and interests of the defendants and plaintiffs in and to said real estate and to define and adjudge by its judgment ■or decree, the title, estate and interests of the parties severally in and to said land set out and described in plaintiff’s petition and for all other proper relief and for costs of suit.”
The reply was a general denial of the new matter in the answer.
The trial court found for the plaintiffs and decreed title in them and debarred defendants of all claim to said land. From this judgment, defendants appealed to this court. Further matters in evidence will be reverted to in the course of the opinion.
[77]*77I. S. M. Spence and William J. Spence, two of the plaintiffs, testified as witnesses in the case. Their testimony tended to show the adverse possession of their father of the land in question from 1867. The defendants challenged the competency of these witnesses and now urge that they were not competent to testify.
The statute relied upon by defendants is section 65-2, Revised Statutes 1899, now section 6354, Revised Statutes 1909. The contention by the plaintiffs 'that they have title by adverse possession does not involve a contract between the parents of these respective parties. On this idea of the case, plaintiffs are not claiming under a contract from the deceased, Newton-Spence. There never was, in fact, a contract of conveyance or a conveyance from Newton Spence, the ancestor on the one side, and William David Spence, the-ancestor on the other side. The only things we have-in this case are an inheritance cast by law upon Newton Spence by the death of his father, Samuel Spence,, and the sale of that inheritance by the sheriff to William David Spence. The only instrument which could be called a contract is the attempted deed from the sheriff to the said William David Spence. To that instrument, Newton Spence was not a party. This evidence was not given concerning this deed. The sufficiency of this deed, it is true, is attacked, but only for legal reasons appearing upon the face thereof, and not otherwise. We are of opinion that these witnesses were competent.
This case falls within the facts and law of the case of Golden v. Tyer, 180 Mo. 196. In that case, Nancy M. Golden sued in ejectment for some lands. Tyer claimed title by a deed from Sam Payton,' a brother of Mrs. Golden. Sam Payton had a deed from the Payton heirs, but such deed did not convey the title of Mrs. Golden, one of the Payton heirs. The answer in that case was a general denial and. the Statute [78]*78of Limitations. For plaintiff it was contended that she and Sam Payton, who was then dead, were co-tenants, and for that reason the Statute of Limitations did not run. According to the report of her evidence, Mrs. Golden’s testimony is thus summarized: “Nancy M. Golden, plaintiff, testified-in the cause. Her testimony tends to show that she resided on the premises for .a number of years; that she paid part of the taxes; that her brother, Sam Payton, under whom defendant claims title, paid her rent in accordance with her interest in the land; that she always claimed to be a tenant in common with her brother, Sam Payton.” The competency of Mrs. Golden as a witness was challenged, and this court then said:
“We cannot agree with learned counsel for appellant that she is an incompetent witness.
“It is true at the time this cause was tried, the record discloses that Sam Payton was dead, and it is also conceded that he is the appellant’s grantor; but it does not follow from his death that the plaintiff is rendered incompetent to testify.
‘ ‘ Sam Payton is not a party to this action, nor is or was he a party to the contract which is involved in this suit. The quitclaim deed offered by defendant is not in question; there is no dispute about that deed; this action is not to set aside or change, in any manner, the legal effect of that instrument. It speaks for itself, and its contents must determine its legal effect.
“There is a dispute as to the right of possession between parties, both of whom are living. Sam Pay-ton is not a party, nor is he a necessary party to the determination of this cause, and so far as this action is concerned, has no legal interest in it. He may be interested in it by reason of his covenants in his deed; this is not contemplated by the statute and cannot be made the basis of excluding the plaintiff as a witness. An examination of the cases cited by appellant in support of this, contention, will demonstrate their dissim[79]*79ilarity to the proposition before us. In those cases, it -will be observed that a contract between a dead and living party was involved. Hence, they came directly within the terms of the statute which rendered the living witness incompetent. The plaintiff in this case is not assailing any contract with her deceased brother, nor is she claiming title under him.”'
This Golden case determines the objection raised in this case, and determines it against the contention of the defendants. We hold that these witnesses were competent.
II. Much is said as to the sheriff’s deed in this case, but the case can be fully disposed of without consideration of that deed. We understand that without that deed William D. and Newton Spence were tenants in common of the land in question in the early days of 1867. Title by adverse possession may be acquired even by a cotenant under given conditions. [Nickey v. Leader, 235 Mo. 30, and cases therein cited.] In such cases the evidence as to the adverse holding must be clear, pointed and convincing, but if the evidence measures up to this standard, title by adverse possession may be obtained.
In the case at bar, the overwhelming testimony tends to show an adverse holding by William David Spence and his heirs. Such adverse holding is shown to be open and notorious. Upon this point the trial court was right. By his judgment and finding the trial court said as to these plaintiffs and their father, that for more than thirty years they were holding the possession of these lands, and paying the taxes thereon and putting lasting and permanent improvements thereon, and during all such time were ‘ ‘ claiming the entire title and holding adversely to the defendants and their ancestor, Newton J. Spence.”
Under the evidence we could not well hold to the contrary, even if we disregard the predisposition of [80]*80this court to yield to the judgment of the trial court on questions of fact. To our minds the evid'ence in this record conclusively shows an adverse holding of these lands for more than thirty years, and the trial court could not have very well held otherwise.
This practically disposes of the case, but we will discuss the effect of this sheriff’s deed. That question we take next.
III. In this case, William David Spence not only entered into the possession under color of title, as to the interest of Newton Spence, but he actually had the equitable title. As before stated, the lands were properly described throughout the whole proceedings, except in the deed. The levy was light. The judgment was right. The notice of sale was right. The only mistake lies in the description in the deed where the range is said to be thirty-two when it should have been thirty-one. We have had just such a situation before this court and held that the equitable title passed to the purchaser at the execution sale. In Manning v. Coal Co., 181 Mo. l. c. 369, we disposed of the question in this language: “The record in said cause shows that the right land was attached and sold under execution, but the sheriff’s deed misdescribes the land as in section two, instead of section twenty-six. This was evidently a mistake of the sheriff in the description, as the records in the case show that the right land was attached, advertised, sold and bid in by Stephen Gipson, who paid the purchase price, and he acquired at least an equitable interest in the land sold. ”
It thus appears that under more than one theory of' the case the judgment, nisi, was right, and it is therefore affirmed.
-All concur.