Hinters v. Hinters , 114 Mo. 26 ( 1893 )

Black, P. J.

This is a suit in equity by several co-tenants against another co-tenant for title.

Peter Hinters died in 1877, the owner of a lot in the city of Independence, on which he had a small house and in which he had for many years carried on the barber business and also ■ the business of an insurance-agent. The lot was incumbered by a deed of tsust to secure a debt of $400 then past due. He also owned another parcel of property called the home place in which he resided. He left surviving him seven children, all of whom were minors except Julius Hinters who was then about the age of twenty-one years. Julius carried on the barber shop and cared for the children as his father had done. The barbershop property was sold under the deed of trust and Mr. Smith, the ■ holder of the note, became the purchaser on the seventh of January, 1879. On the next day Smith quitclaimed the lot to Julius who paid therefor the amount of the debt and costs of sale and perhaps some accrued interest. The property was then worth frc*m $2,500 to $3,000; and the evidence bhows that the sale was made at 'the request, of Julius to the end. that he could acquire the title. This quitclaim deed to Julius was recorded on the day of its date, that is to say, on the eighth of January, 1879.

After this sale the children continued to reside in the home place and Julius carried on the shop as before until 1883, at which time he married and the children then separated. He thereafter collected rents' from the home place. In 1884, he made a mortgage upon the barber-shop property to secure $2,200 borrowed of the county. The money thus borrowed he used in building on this lot. He died in 1887 leaving one infant child.

The plaintiffs are the six brothers and sisters of Julius, and the defendants are his child and the administrator of his estate.

1. Tenants in common occupy a confidential relation to each other, and because of this relation there is an implied obligation on the part of each to sustain and protect the common title. It is, therefore, a general rule that if a tenant in common buy up an outstanding title or incumbrance, the purchase will be deemed to have been made for the benefit of all the co-tenants, the other co-tenants being bound, however, to contribute their respective proportions of the consideration paid for the outstanding title or incumbrance. Freeman on Co-tenancy & Partnership [2 Ed.] secs. 151, 156; Allen v. DeGroodt, 105 Mo. 442. In this case Julius Hinters, one of the co-tenants, caused the property to be sold under the deed of trust to the end that he could acquire the entire legal title at the amount of the incumbrance which was not more than a sixth part of the value of the property; and there can be no doubt but that he took and held that title in trust for himself and his co-tenants. The plaintiffs have the undoubted right to call upon him and his estate for an accounting and for title, unless barred by tbe 'statute of limitations.

2. This is in substance and effect an action for tbe recovery of lands, and it requires ten years adverse possession even as against an adult person to constitute a bar. There is no pretense that the statute of •limitations began to run prior to the date of the deed from Smith to Julius, namely the eighth of January, 1879. This suit was commenced ten years and seven months after that date. Conceding that the statute of limitations began to run on the eighth of January, 1879, still most of the plaintiffs were minors at that time. Theresa was then fourteen, Maggie twelve and Tillie ten years of age. Being minors when the statute began to run, they had three years after they reached the age of twenty-one in which to sue. Revised Statutes, 1889, sec. 6767; Gray v. Yates, 67 Mo. 601. It follows that Maggie and Tillie are not barred, and it may be Theresa is not, this depending upon the exact date of her birth, which is not given in this record. The circuit court seems to have held that all the plaintiffs were barred except Tillie, and in so holding the court erred.

3. The circuit court also erred in excluding the testimony of Charles Crysler. The witness stated that he was an attorney, that he was not the attorney of Julius Hinters, but was the attorney for the plaintiffs, that as the attorney for the plaintiffs he had a conversation with Julius in his lifetime about the property. The plaintiffs then offered to show by this witness that Julius told him that he (Julius) would see that the plaintiffs got their share of the property as soon as he could sell it, but the court excluded the evidence on objections interposed by the defendants.

The evidence was no doubt offered to show that Julius did not claim the property to the exclusion of his brothers and sisters, and that his possession was, therefore, not adverse but subordinate to their rights as co-tenants. The proposed evidence has a direct bearing upon an important issue in the case; for if the possession of Julius was not adverse, then the statute of limitations constitutes no defense as to any of the plaintiffs.

The testimony seems to have been excluded because of the death of Julius. The witness was not a party to any contract or cause of action at issue on and trial, nor was he a party to the suit. The statute excluding one party to the contract or cause of action on trial when the other party thereto is dead has no application whatever to this witness. It was certainly competent to show declarations and statements made by Julius to the effect that he did not claim the property as against his brothers and sisters, and this witness was perfectly competent to prove such declarations. It was held, it is true, in Williams v. Edwards, 94 Mo. 447, that one who contracts with an agent of a corporation is not a competent witness as to such contract after the death of the agent, but that is not this case by any means. There is no issue here as to any contract made between the deceased on the one hand and the witness as agent for the plaintiffs on the other hand. It is the declarations of the deceased that the plaintiffs desired to put in evidence, and this they could do by this witness as well as by any other person.

4. It may be well doubted whether the defendants made out a case of ten years adverse possession as to any of the plaintiffs; but, as the court excluded competent and very material evidence bearing upon this issue, we say no more as to this point at this time.

The judgment is reversed and .the cause remanded -for new trial.

All concur.