Opinion
No. 41285
March 13, 1950. Rehearing Denied, April 10, 1950.
Plaintiff recovered possession of property occupied by defendants. A counterclaim based on an alleged gift and adverse possession was not established.
1. GIFTS: Burden of Proof. Defendants had the burden of proving an oral gift by clear and convincing evidence.
2. GIFTS: Oral Gift of Land: Finding of Chancellor Against Gift Sustained. There was conflicting oral testimony and the finding of the chancellor that plaintiff did not give the disputed land to defendants, but merely permitted them to use it, is sustained.
3. ADVERSE POSSESSION: Permissive Possession: No Title Established. Since defendants' possession was permissive, they cannot get title by adverse possession.
Appeal from Butler Circuit Court; Hon. Randolph H. Weber, Judge.
AFFIRMED.
Phillips Phillips for appellants.
(1) The oral agreement entered into by the plaintiff and the defendants whereby plaintiff gave land to the defendants followed by the possession by the latter had the effect of making defendants the owners of the land, the subject matter of the gift, just as effectively as if the conveyance was made by a written instrument. Aldridge v. Spraggins, 163 S.W.2d 1042; Adams v. Moberg, 205 S.W.2d 553; Schebaum v. Mersman, 191 S.W.2d 671. (2) A full performance by one party to an oral contract to convey land takes the agreement out of the Statute of Frauds and the contract is enforceable. Sec. 3354, Mo. R.S.A., footnote 281, et seq.; see cases collected in footnotes. (3) There is nothing improbable or unreasonable in the claim of the defendants that the plaintiff gave the garden plot to them; in fact it is in keeping with his gift to them of the lot on which they built their home. They needed more land to help support them while they lived near the plaintiff at his request and he gave it to them for the same purpose that he made the first gift. We think that as a matter of fact that there is no question but what plaintiff made the gift at the time and manner testified to by the defendants.
Tedrick Tedrick for respondent.
(1) When the plaintiff introduced in evidence, the deed showing the title to the land in dispute was vested in him, together with the notice to vacate, he made a prima facie case. (2) The burden of proving a gift of the property was on appellants. 38 C.J.S., p. 858; Mississippi Valley Trust Co. v. Weber Bros. Realty Co., 149 S.W.2d 437. (3) To establish a parol gift of land, the clearest and most satisfactory evidence is usually required, not only as to the fact of the gift, but also as to the identity of the land and such evidence must be clear and convincing. 28 C.J. 680, sec. 84; 38 C.J.S. 869-870. (4) The burden of establishing title by adverse possession was on appellants. Welsh v. Brown, 96 S.W.2d 345; Missouri City Coal v. Walker, 188 S.W.2d 39; City of Pacific v. Ryan, 28 S.W.2d 652; Arcadia Timber Co. v. Evans, 31 S.W.2d 988; Mo. Dig. (Adverse Possession) Key No. 112. (5) Mere possession of land for requisite statutory period is insufficient to vest party in possession with title, but possession must be adverse. Welsh v. Brown, 96 S.W.2d 345; Swope v. Ward, 84 S.W. 895; Mo. Dig. (Adverse Possession) Key No. 58. (6) There are five essential elements necessary to constitute effective adverse possession. (a) The possession must be hostile and under a claim of right, (b) It must be actual, (c) It must be open and notorious, (d) It must be exclusive and (e) It must be continuous. Welsh v. Brown, 96 S.W.2d 345; Swope v. Ward, 84 S.W. 895. (7) The doctrine of prescription does not apply to cases in which possession is permissive. 2 C.J.S., p. 624, sec. 80; Eaton v. Cates, 175 S.W. 950; Mo. Dig. (Adverse Possession) Key No. 60 (2); 2 C.J.S., p. 568, sec. 53. (8) Where one in possession recognizes existence of a superior title in another his possession cannot support title by limitation. 2 C.J.S., p. 626, sec. 81. (9) Possession of land in recognition of lack of title is insufficient ever to ripen into title by adverse possession. Riebold v. Smith, 150 S.W.2d 599; Mo. Dig. (Adverse Possession) Key No. 68. (10) Whether defendants' possession of land for requisite statutory period was adverse so as to vest defendants with title thereto, held for trier of facts. Welsh v. Brown, 96 S.W.2d 345; Mo. Dig. (Appeal and Error) Key No. 1008 (1).
The respondent filed this action in the circuit court of Butler County, Missouri, to recover possession of a certain tract of land in that county. By their answer and counterclaim the appellants claim title to this land on the grounds of a parol gift to them by respondent, and by adverse possession. The trial court found that there was no oral gift of this tract of land and that appellants' possession of it was permissive. He found respondent was entitled to possession of this tract of land; that respondent was not entitled to any damages; and that the reasonable rental value of this land was $2.50 a month which was to be paid to respondent from the date of the judgment. From this decree, the appellants have duly appealed.
The respondent is the grandfather of the appellant A.D. Willis. Soon after this appellant was born, his father left Poplar Bluff, Missouri, and has never been heard from by any of respondent's family. Shortly thereafter this appellant was brought by his mother to the home of respondent, her father, and he lived there until he was married. When he was about 8 years old his mother remarried and she lived several places, finally moving to California, but she left this appellant with respondent. Respondent's wife died in 1942. He had only two children, this appellant's mother and a son, Romey, who is a carpenter and building contractor.
The appellants were married November 30, 1928, and on April 26, 1929, the respondent deeded them a tract of land 50 by 100 feet on which to build a home. This lot was on a highway just north of Poplar Bluff. The city limits were later extended and it is now within the city. It was part of a large tract of land owned by respondent who lived near the lot he gave the appellants. The appellants built a home on this lot. Work was hard to find in Butler County in the spring of 1930 and appellants went to Pontiac, Michigan to seek employment. While there they stayed with the uncle, Romey Dalton. He was working there at the time. Unable to find employment, they returned to Poplar Bluff. The appellants testified that they began to talk about moving to California but respondent did not want them to leave. Appellant A.D. Willis told his grandfather that if they stayed he would need more ground than he had. The respondent then told them if they would stay he would give them more land. He went out on the back porch of appellants' home, pointed out to the hillside, and told them they could use it for a garden. He then pointed out to the part of the tract south of the garden, including that lying between their lot and the property [711] immediately south thereof, and stated to them that they could have that tract for their outbuildings. This was a very irregular tract of land. On the other hand, respondent's testimony was to the effect that he did not give appellants the land but allowed them to use it, and they did so with his permission until he served notice on them to vacate the tract in question just a short time before he filed this suit.
In their brief, appellants state that the only question in this case is whether a gift of the property involved was made by the respondent to the appellants. We agree with them that that is the principal question before us. It is not disputed that appellants were put in possession by an oral arrangement between respondent and them in the year 1930. But the real question is whether it was a gift, as contended by the appellants, or whether the respondent merely gave his grandson and his wife permission to use this tract of land. If it was a gift, as contended by the appellants, then the burden of proof is on them to show it by clear and convincing testimony. Mississippi Valley Trust Co. v. John F. Weber Bro. Grocery Co., 347 Mo. 739, 148 S.W.2d 578.
Appellants' evidence tended to prove that respondent gave them the land if they would stay in Butler County and look after him and his wife, and not go to California. This alleged agreement was made in the year 1930. Some time subsequent to this alleged agreement, appellant A.D. Willis leased from respondent a clay pit or mine on the large tract of land of which the tract in question is a part. The lease was drawn up by this appellant. A reading of the same shows that appellant was a man of some education and would know about how lands should be conveyed. Both appellants testified that they knew no reason why respondent could not have deeded this tract of land in 1930 or at any subsequent time. He gave them the lot on which their home was built in 1929 and executed a deed for it. There is some evidence that appellants fenced the garden, however, there is other evidence that they only fenced a part of it as there was some fence around a part of it.
In 1943 appellants deeded two acres north of Poplar Bluff to the respondent. When appellant A.D. Willis was asked why he did that his answer was, "I gave him the deed as an added inducement to get the paper title on this property in suit." It seems to us that if the respondent in 1930 actually gave appellants the land in question and put them in possession as the owners thereof, then it was not necessary to give respondent an added inducement to get title to the land in question. In other words, if respondent gave them the land in 1930, no additional inducement 13 years later was needed to vest title in them.
Romey E. Dalton testified that after the death of his mother this appellant came to him and said that the 50 by 100 foot lot was not enough land, and that he wanted this witness to join in a deed with respondent and give him this tract of land. On one occasion when this witness was fixing a hydrant near the home of this appellant and respondent was present, this appellant stated that if the respondent would not give or sell him more land he would get it anyway, and even threatened them. On cross-examination this appellant admitted he made some kind of a threat.
The respondent's testimony was to the effect that he merely let appellants use the land, that he did not give them the land, and that they used the land with his permission up until the time he served notice on them to vacate the land in question.
The evidence is disputed, but since the trial chancellor saw and heard the evidence to support the gift of the land in question and believed that the respondent did not give the land in question to appellants, we will defer to his findings. Adams v. Moberg, 356 Mo. 1175, 205 S.W.2d 553.
Since there was no gift of the land in question, appellants' possession was with the permission of the respondent. Mere possession of the land for the requisite statutory period is insufficient to vest appellants with title because the possession must be adverse. Welsh v. Brown, 339 Mo. 235, 96 S.W.2d 345. Permissive possession is not adverse possession. Since appellants' possession was permissive, they cannot get [712] title to this land by adverse possession. Eaton v. Cates, 175 S.W. 950.
It follows that the judgment of the trial court should be affirmed. It is so ordered. All concur.