#### FANNIE STEPHENSON et al., Appellants, v. C. B. AUSTIN.

Division Two,

March 9, 1909.

1. ADMISSION: Motion to Strike Out: On Appeal. A motion made in the Supreme Court by appellants to compel tbe trial judge to strike from tbe record of tbe case an admission made by' appellants upon tbe trial that their father died seized of tbe land in controversy, upon tbe ground that such admission was made by mistake, will be overruled, where tbe certified record shows tbe admission was made.

2. TITLE: Thirty-Year Statute: Life Estate. Where there was a solemn admission at tbe trial by plaintiffs that their father died seized of the land, but no showing is made of the date of his death, and defendants show that they have been in actual adverse possession for more than ten years under color *oi*title and that for more than thirty years neither plaintiffs nor their ancestors had paid any taxes on the land, the decree should be for defendants, notwithstanding plaintiffs introduce a deed showing that their father deeded the land to á daughter for and during her life, and that she died within ten years, for the admission removes from the case any consideration of this lifetime estate.

*356Appeal from Wright Circuit Court. — No». *Argus Cox,*Judge.

Affirmed.

*S. A. Davis*for appellants.

The Statute of Limitations will not commence to run against remaindermen until intermediate estate is terminated; in this case, the intermediate estate was not defeated until the death of Mary Ann Durbin. Thomas ,v. Black, 113 Mo. 66. The possession of this land by C. B. Austin and his grantors for a period of more than ten years does not bar the right of the heirs of William Young, and the Statute of Limitations will not begin to run as against them prior to the death of Mary Add Durbin. Sutton v. Casseleggi, 77 Mo. 397; Jones v. Manly, 58 Mo. 559; Brown v. Moore, 74 Mo. 633; State v. Moore, 61 Mo. 280. Defendant’s claim to title by reason of the fact that he and his grantors have been in the possession and paid the taxes on the land for a period of thirty consecutive years just prior to the death of 'Mary Ann Durbin, is without merit. A tenant for life is bound to keep up the repairs and pay the annual taxes, even though he holds under a deed which purports to convey the fee. Bone v. Tyrrell, 113 Mo. 175. The creation of a future estate of freehold or of inheritance may be made by deed in like manner as by will. Sec. 4596, R. S. 1899.

*F. M. Mansfield*and *W. S. Pope*for respondent.

Defendant was in possession of the land in controversy and claimed title to it. He and his grantors had been in possession thereof more than thirty years, and neither plaintiffs nor anyone under whom they claim .had been in possession or paid taxes within thirty years. The evidence shows that defendant and those under whom he claims had been in possession for thirty *357or thirty-five years. Prom the abstract of title put in-evidence by plaintiffs and their petition in a former suit introduced by defendant, it appears that the land was sold to pay the debts of William Young to W. S. Pope and F. M. Mansfield, May 17, 1872, and that defendant holds title by *mesne*conveyances from them. Appellants have not complied with requirements of this court in any respect, and there is nothing before it that entitles them to a review of what occurred at- the trial. If, however, the court should consider the case, there is enough in the bill of exceptions to sustain the judgment and decree entered.

FOX, J.

This cause is now pending in this court upon appeal on the part of the plaintiffs from a judgment of the circuit court of Wright county, Missouri,in favor of the defendant.

This is a proceeding under the provisions of section 650'. ’The suit was brought at the March term, 1905, of the circuit court of Wright county. The petition upon which the cause was tried was an amended petition, and it is alleged that the plaintiffs were the heirs at law of William Young, and as such heirs were the owners in fee simple of the southwest quarter of the northwest quarter of section 17, township 30, range 13, containing forty acres, situate in Wright county, Missouri. It is also alleged that the defendant, C. B. Austin, claims an estate, title and interest adverse to the plaintiffs, in and to the aforesaid land, and that said Austin is now in possession and is enjoying the rents and profits of said land. Plaintiffs finally pray the court to ascertain and determine the estate, title- and interests of the parties, both plaintiffs and defendants, respectively, in and to the land described in the petition.

The answer of the defendant denies each andi every allegation contained in the petition, except that the defendant admits that he is in possession of the *358land described in plaintiffs’ petition under absolute claim of ownership. The answer further alleges that the defendant and his grantors have been in the open, adverse and continuous possession of said land for -more than ten years prior to the commencement of the suit, and that plaintiffs’ action was at the commencement of said suit barred by the ten-year Statute of Limitations. It is further alleged in the answer that the title to the land described in plaintiffs’, petition emanated from the General Government more than forty years before the commencement of this action, and that this defendant and his grantors have been in the open, notorious, adverse and continuous possession of said land more than thirty consecutive years prior to the commencement of this action; that neither of the plaintiffs nor anyone for them nor anyone under whom they claim have been in possession of said land or paid any taxes thereon for more than thirty consecutive years. It is averred upon this state of facts that all right, title and claim plaintiffs might have had in said land is barred by the thirty-year Statute of Limitations, which defendant pleads as an absolute bar to this action.

Upon the trial it was admitted by the parties to this suit that William Young was the common source of title, and that he died seized of the property in controversy. Plaintiffs then offered testimony tending to show that the plaintiffs were the heirs of William Young. Plaintiffs then offered in evidence a quitclaim deed to the' land in controversy from William Young to Mary Ann Durbin. The *habendum*clause of said deed recites that Mary Ann Durbin was to have and hold the right, title, interest and estate hereby conveyed unto said Mary Ann Durbin and to her own use and benefit during the time she may be a widow, and at her death the above-described land to revert back to the heirs of William Young. This deed was executed on the 7th day of March, 1869, and acknowledged on *359the 7th day of October, 1869: The testimony further tended to show that Mary Ann Durbin died on the 24th day of October, 1900, in Jonesboro, Arkansas. The record fails to disclose when William Young died.

The defendant introduced first the original petition as fiied by the plaintiff. This original petition described the land in controversy and then alleged that the plaintiffs were lawfully entitled to the possession in fee simple of all the real estate and lands owned by William Young at the time of his death. It was also alleged in said original petition that said plaintiffs were lawfully entitled to their respective interests in fee simple in and to the real estate now in controversy by reason of the fact that said land and the title thereto was vested in William Young in fee simple prior to and at the time of the death of him, the said William Young. The abstract of title to the land in dispute was also introduced in evidence by the defendant, which showed that William Young obtained this property by deed from Samuel Thompson, dated the 17th of October, 1866. The next in order is William Young to Mary Ann Durbin, which has been heretofore referred to in the statement. Then follows a deed from Mary Aun Durbin to W. S. Pope and F. M. Mansfield, quitclaim deed, dated the 17 th of August, 1874. Then, follows- a deed by John IT. H. Mott, administrator of William Young’, deceased to "W. S. Pope and F. M. Mansfield; the date of this instrument is May 17, 1872. The next is a deed from W. S. Pope and F. M. Mansfield to Andrew J. Gordon, warranty deed, dated the 5th of September, 1876. Then a deed from A. J. Gordon to F. A. Furguson, quitclaim deed, and a quitclaim deed from F. A. Furguson to J. H. Robinett. Then follows a warranty deed from J. H. Robinett to the present defendant, C. B. Austin.

There was other testimony introduced by the defendant tending to show that he and his grantors had *360been in tbe open, continuous and adverse possession of tbe land in controversy for over thirty years, and that plaintiffs or anyone through whom they claim had never been in possession for more than thirty years and had never paid any taxes upon said land.

The record in this cause is by no means to be commended. In fact it is very doubtful whether it complies with the rules of this court. It seems that after the plaintiffs introduced their evidence defendant then filed an amended answer. The bill of exceptions does not show at the time of the filing of such answer any objections to it being filed or any motion to strike out. It simply shows the filing of the amended answer and what the answer contains. Then followed the reply of the plaintiffs. The bill of exceptions dóés disclose that after all the testimony was introduced and plaintiffs and defendant both rested there was an objection to the filing of the answer. The objection seems to be predicated upon the idea that this answer was filed after all the evidence in the trial of the case had been introduced, but it is a matter of impossibility to determine from the record itself at what particular time the answer was filed. According to the bill of exceptions the plaintiffs introduced their evidence; then follows the answer of the defendant and the reply of the plaintiffs. Then follows the testimony as introduced by the defendant and the testimony in rebuttal by the plaintiffs. At the close of all the testimony the plaintiffs by their counsel make the objection to the filing of the answer as heretofore indicated.

This sufficiently indicates the nature and character of this suit, at least it indicates it as near as we are able to from this confused record. At the close of all the evidence the cause was submitted to the court and the finding of the court was in favor of the defendant, followed with a decree and judgment vesting the title in him. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Prom *361the judgment and decree rendered in this cause the plaintiffs prosecute this appeal.

OPINION.

The record before us discloses that after this court obtained jurisdiction of this cause the appellants filed a motion to compel the trial judge to strike from the record the admission made upon the trial that William Young died seized of the property in controversy. This motion was promptly and properly overruled by this court; hence it follows that we are confronted in the record now before us with the admission upon the trial of this cause that William Ybung was the common source of title and died seized of the land involved in this controversy. This record was made in the trial court by plaintiffs and upon this record this cause must stand or fall. Appellants insist that it was made through mistake; in fact, that it was not made at all; however, the record as certified to this court shows that that admission was made, and we see no escape from the full consideration of it. Confronted by this solemn admission in the record there can be but one conclusion reached, and that is that the judgment and decree of the trial court was fully supported. With the admission that William Young died seized of the land in controversy, together with the testimony tending to show a conveyance to defendant’s grantors and the possession by the defendant and. his grantors for a period of thirty years or more, the plaintiffs upon that state of facts were clearly not entitled to have adjudged to them any interest in said land. The record fails to disclose when William Young died, and it can serve no good purpose to discuss the force and effect of the deed that he executed to Mrs. Durbin, for the admission to which we have directed attention covers the entire case and is fatal to any recovery upon the part of the plaintiffs. Should we even hold *362that the deed created either a vested or contingent remainder in the heirs of William Young, the record is silent as to when William Young died, and then in its last analysis we would he confronted with the admission in the record that William Young at the date of his death was seized of the land in controversy.

We see no necessity for further discussion of this subject. There seems to be no way to escape the conclusion upon the record now before us that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.