Seibert v. Hope

GANTT, P. J. This is an appeal by defendants from a judgment of partition by the circuit court of Cape Girardeau county of the southeast quarter of the northwest quarter and the southwest quarter of the northeast quarter of section 13, in township 33, range 12, among some of the heirs at law of Ewing Y. McKee and the grantee of certain of said heirs. Ewing Y. McKee left surviving him as his only heirs at law the following named children: James, Lizzie, Susan, John R., Euphrasia and E. M. McKee. John R. McKee purchased the interest of James,. Lizzie and Susan McKee and thus became the owner of four-sixths of said land. On the 15th of Novem [633] her, 1901, John E. McKee executed to defendant E. L. Hope a deed of trust under which the premises were subsequently sold, and Hope became the purchaser and received a trustee’s deed of date December 12, 1903. At this sale public notice was given that the heirs of Euphrasia Seibert (formerly Euphrasia McKee) had an interest in the land. Euphrasia McKee married Hickman Eobb, by whom she had one son, Theophilus Eobb, one of the defendants in this case. Hickman Eobb died in 1872 and in January, 18801, his widow, Euphrasia, married plaintiff William H. Seibert, by whom she had two children, George E. and Lillian Seibert, plaintiffs in this ease. Mrs. Euphrasia Seibert died January 29, 1901, leaving as her heirs her husband, William H. Seibert and her three children, Theophilus Eobb and George E. and Lillian Seibert. On the 14th of December, 1903, E. M. McKee, son of Ewing T. McKee, conveyed his undivided one-sixth of said land to his nephew and niece George E. and Lillian Seibert. The foregoing facts were alleged and there is no dispute about them, but defendant E. L. Hope in his answer alleges: “that he is now and was at the time of the institution of this suit in the actual, exclusive, continuous, open and notorious possession of said real estate adverse and hostile to the plaintiffs. That for more than thirty years prior to the institution of this suit this defendant and his grantor, John E. McKee, had been continuously in the actual, adverse, open, hostile, exclusive and notorious possession of said real estate, claiming to be the owners thereof and to have the whole title thereto, and therefore defendant states that plaintiffs’ claim to said land is barred by the Statute of Limitations in such cases provided.” At the May term, 1905, the cause was tried to the court and the court found the several parties were entitled as follows: [634] E. L. Hope, as the owner of the shares of James, Lizzie, Susan and John R. McKee, to 24-36. Theophilus Robb, as heir of Euphrasia (McKee) Seibert, subject to the curtesy of William Seibert, 2-36. George E. Seibert and Lillian Seibert, as heirs of Euphrasia Seibert, subject to curtesy, 4-36. George E. and Lillian, as grantees of E. M. McKee, 6-36. William H. Seibert, as husband of Euphrasia (McKee) Seibert, curtesy in 6-36. And rendered judgment accordingly and ordered the land sold for partition. The evidence introduced on the issue of the Statute of Limitations, on the part of defendant Hope, tended to show that after purchasing the three shares, John R. McKee controlled the land and collected the rents, but outside of general statements that he owned the land, there was nothing to indicate that he disputed the rights of his sister Euphrasia or of his brother E. M. McKee. Mr. Hope, the defendant, testified that he never heard John R. McKee express himself as to the interest he had in the land. He concluded he owned it because he managed it and at one time offered to sell it. Before defendant bought at trustee’s sale he was notified of the claim of Euphrasia’s children. No person ever heard John R. deny the interest of his sister and brother. On the other hand, in the year 1888, fourteen years after he had purchased his brother James’s share, he spoke of the interest of the other heirs, and at that time there were no other heirs save Mrs. Seibert and his brother E. M. McKee. Moreover, he made his home for twenty years with his sister, Mrs. Seibert, and she always asserted her rights and he never denied her interest. It is true he managed the place, collected the rents and paid the taxes. There were no buildings on the land. While [635] defendant attaches importance to the fact that James McKee sold the land and not his sixth therein, it is also true that this deed was made in 1874 and never recorded until 1894. The only question is whether the circuit court erred in holding that the evidence did not establish an ouster of Mrs. Euphrasia Seibert and E. M. McKee. By presumption of law the possession of one tenant in common is the possession of his cotenants, and it is the settled law of this State that, to establish title in one cotenant as against the others by adverse possession, there must be such outward acts of exclusive ownership of an unequivocal character as to impart notice to the cotenants that an adverse possession is intended to be asserted against them. [Warfield v. Lindell, 30 Mo. l. c. 282; Benoist v. Rothschild, 145 Mo. l. c. 408; Hutson v. Hutson, 139 Mo. l. c. 236; Coberly v. Coberly, 189 Mo. l. c. 15.] In this last-cited case, it was said: “Mere verbal assertions of ownership will not do. Acts of an unequivocal character and of such inherent nature as to impart information and give notice to his cotenants of actual disseizin are required.” When it is remembered that John R. McKee was a single man; that he owned two-thirds of the tract; that his sister was a married woman and he made his home with her for twenty years and no one ever heard him deny her ownership to her one-sixth, or his brother’s right, the latter having left the neighborhood for many years, there is nothing to show that his possession was antagonistic to their rights. They might very naturally leave it to him to rent and pay the taxes, and it is not at all unusual that brothers and sisters permit a homestead to be managed in this manner, without a thought of being ousted of their title by an act or acts of kindness and consideration. John R. McKee never having denied his sister and brother’s rights, there is no foundation for defendant Hope’s claim of ouster. [636] We think the circuit court was amply justified in holding that the evidence did not establish an ouster by adverse possession and its judgment is affirmed. Burgess and Fox, JJ., concur.