Smith v. White , 165 Mo. 590 ( 1901 )

MARSHALL, J.

Ejectment for an undivided one-fourth interest in certain real estate in Carroll county. The plaintiff recovered judgment in the circuit court, and defendants appealed. The defendants, T. D. and N. M. "White, are the tenants of the real defendant, Martha A. Downey. The ouster is laid as of December 3, 1889. The suit was begun to the November term, 1897. The answer of Martha A. Downey is a general denial, except as to possession, and' a special plea that the rights of the parties to the land in question were adjudicated in 1889, in a prior ejectment suit. Upon the trial the defendant also claimed title by limitation, but as the jury found that issue under admittedly proper instructions against her, she does not urge that defense here. In fact, the appellant assigns only two errors, to-wit, first, that there is no evidence that the plaintiff was a half-sister of William Downey, through whom she claims title, as does also the defendant, and, second, that the sixth instruction given for the plaintiff is erroneous, in that, it- authorized the jury to allow the plaintiff damages for detention for the five years next before the filing of this suit.

The defendant also claimed in the trial court that the property was originally owned by Martha Barrier, an aunt of the defendant, and that prior to her death she made a will by which she devised the property to defendant and her brother, William Downey, as joint tenants, the survivor to have the whole, and, hence, upon his death she took the whole estate by survivorship. But there was no substantial evidence to support this claim. No such will was ever found or probated, and on the contrary it appeared that on April 2, 1869, a few days before her death, her said aunt deeded the property absolutely to said William Downey, and it was held by him until April, 1870, when he died without issue, single, and intestate. Upon his death the defendant took possession and has held it ever since. At that time the plaintiff was a widow, but in November, 1871, she married Charles Smith and her coverture continued until his death in October, 1896, and this suit was begun in October, 1897. In fact, this contention of a right by survivorship is not insisted upon here.

The first error assigned, that there is no evidence that the plaintiff was a half-sister of William Downey, is not tenable. The plaintiff testified that she is a daughter of Richard S. Downey, by his first marriage, and that the defendant and William Downey were children of said Richard S. Downey by his last marriage, which was either his third or his fourth marriage; it is not altogether clear whether he was married three or four times. The plaintiff further testified that Simeon (or John S., or Seaman) Downey was her full brother. If this be true, and it was substantial evidence to support the plaintiff’s contention, the verdict of the jury to which this issue was submitted, is conclusive in this court. [James v. Ins. Co., 148 Mo. 1.] But the defendant’s testimony did not amount to substantial evidence to the contrary. She disclaimed any knowledge on the subject, as she necessarily had to do in view of the fact that the plaintiff was thirty-one years old when the defendant was born. She said, however, that she heard a conversation between the plaintiff and her brother, Simeon, in which.'they spoke “about a woman that they lived with, and .they called her mother, and afterwards I” (the defendant) “asked who it was, and she said it was a woman they lived with; says I, ‘Pa lived with her?’ She says, ‘No, he took us from her when he came to this country.’ ” On cross-examination she said she did not regard the plaintiff as “legal,” and when pressed for her reason for thinking so, she said that the plaintiff “by her actions” said that she, the defendant, was illegitimate, and when further examined as to her meaning she said the plaintiff said her father “left a wife back there and came here and married again,” and as she, defendant, was a child of the marriage here while her father had a wife back there, it made her, the defendant, illegitimate. The jury placed the proper estimate upon this testimony, and found that the plaintiff is a half-sister to the defendant, and also a half-sister to William Downey, who was a full-brother to the defendant, as she had always been treated by the whole family, including the defendant, until this, controversy arose at the death of William Downey.

It is next contended that the sixth instruction given for the plaintiff is erroneous because it permits a recovery of damages for detention for five years next prior to the institution of this suit. The point of the contention is that the plaintiff was a married woman from 18^1 _to 1896, and that her husband had a vested right to the possession of his wife’s property and to the rents, issues and profits thereof, which at his death passed to his administrator and not to his wife, and that during his life the plaintiff was not entitled to the possession, and, therefore, the husband and not the plaintiff waá damaged by the detention, and that as the evidence showed a denial of the plaintiff’s title in 1889, during the continuance of the husband’s right to the possession, and as there is no evidence of any such denial after the husband’s death until the answer was filed in this suit, the plaintiff is .only entitled to damages from the date of the filing of the answer.

The plaintiff concedes the error in the instruction and offers to remit the damages prior to the death of her husband in October, 1896, and asks this court to exercise the power conferred on it by section 866, Revised Statutes 1899, and enter such judgment as the trial court should have entered. In reply to the defendant’s contention that there was no denial of the plaintiff’s title except in 1889, the plaintiff refers to the fact that in the trial court, to sustain her claim by limitation, the defendant contended she had ousted the plaintiff prior to her marriage in 1871 and had held possession adversely to the plaintiff ever since, and, hence, that a formal demand and a denial by defendant was unnecessary after her husband’s death.

It is true, as defendant contends, that during the coverture the plaintiff’s husband was entitled, as husband, to the possession of his wife’s property and to the rents and profits arising therefrom, and that the plaintiff only became entitled to the possession upon the death of her husband. The plaintiff had to concede this or else her action was barred by limitation. [Dyer v. Wittler, 89 Mo. 81; Hall v. French, 165 Mo. 430; Schouler’s Dom. Rel. (2 Ed.), p. 142; Leete v. Bank, 115 Mo. 1. c. 200; Arnold v. Willis, 128 Mo. 1. c. 150; Keith v. Keith, 80 Mo. 1. c. 127.]

But it is also true that the defendant, all through the trial, asserted possession adverse to the plaintiff’s right, continuously since 1871, and it is wholly inconsistent for her now to deny plaintiff’s right to damages for detention since the death of her husband in 1896. The jury found the value of the rents and profits to be three dollars and fifty cents a month. The plaintiff’s husband died in October, 1896. The trial was on June 30, 1898. The court should have limited the plaintiff’s right to damages to that period. The damages were assessed at $200, when they should have been for only $70.

For these reasons the judgment will be affirmed upon condition that within thirty days from this date the plaintiff file with the clerk of this court a remittitur of $130, leaving the judgment to stand for $70 damages for detention, with six per cent interest thereon from June 30, 1898; otherwise the judgment will he reversed and the case remanded.

All concur.