261 Mo. 359 | Mo. | 1914
This is a suit in ejectment to recover possession of two irregular strips of land lying in the southwest fractional quarter of section 13, township 37, range 10, west, Phelps county, Missouri. The suit originated in the Phelps County Circuit Court but upon change of venue was sent to the circuit court of St. Louis county where trial was had before the court without a jury, resulting in a judgment for the defendant. The petition was in the usual form. The answer contained a general denial but admitted that the defendant was in possession of 'the land. The answer also pleaded the ten-year and the thirty-one year Statutes of Limitations. The reply put in issue the pleas of the Statutes of Limitations, admitted that neither plaintiff nor those under whom he claimed had paid any taxes on the land, but alleged as an excuse therefor that the land had never been assessed for taxation. The land in question lies between the eastern city limits of the town of Jerome and the Gasconade River. The tw.o strips are separated by the right of way of the St. Louis & San Francisco Railroad, which runs north and south. One of the strips of land adjoins the railroad’s right of way on the west and lies between the right of way and the Main street in Jerome and is referred to as the “tie yard.” The other strip lies east of the railroad right of way and extends from the right of way to the west bank of the Gasconade river. The two strips of land are approximately two thousand feet long. The tie yard strip varies in width from ninety to one hundred and fifty feet, the river strip is about three hundred feet wide for half way of .its length, then it narrows down abruptly to a few feet in width.
After the death of defendant’s husband, defendant’s two sons, with her consent, continued to occupy the land and ■ carried1 on the tie and sand business thereon in very much the same manner as it was conducted prior to their father’s death. Defendant’s possession, in this manner, was continued up until the time that this suit was instituted. The land was never fenced nor improved in any manner excepting that,
The deposition of William P. Greeley was taken in the city of Boston, Massachusetts, on April 20, 1910. The cross-examination contained in this deposition was offered in evidence by defendant and the direct examination was offered in evidence by the plaintiff. Greeley testified that, at the time of the taking of his deposition, he was seventy-nine years old; that in 1865 he was an army officer in the regular army of the United States, stationed in Springfield, Missouri, as a mustering officer, mustering out troops at the close of the war; that he resigned in May, 1865, and located at Rolla, Missouri, where he engaged in business'; that about 1867 he made an entry of the quarter sec tion of land on the Gasconade River and laid out the town of Jerome; that he lived in Jerome for a time and left there in the fall of 1869; that he never resided in Phelps county, Missouri, after I860; that he never paid any taxes on the land and did not know who had had possession of the land; that he never did anything with the land after 1869, other than to make the quitclaim deed to plaintiff in 1910; that after leaving Phelps county, Missouri, he went to Marshfield, Missouri, and from there to Wichita, Kansas, where he remained about two years, and then to St. Louis where he remained about six months; that he first went to Boston to reside in 1880, but did not live there continuously; that in 1900 he returned to Boston and had lived there since that time and had not been out of New England since 1900; that he was not in St. Louis in 1903 and was not acquainted with L. F. Pillman and did not make the deed to L. P. Pillman in 1903 or an3^ other time; that he executed the quitclaim deed to plaintiff for a consideration of one hundred dollars ; that in 1910 an attorney called on him and asked him if he would make a quitclaim deed to the interest
Plaintiff’s evidence in rebuttal tended to show that during the time that Pillman was engaged in the sand and tie business at Jerome, he did not claim to own the land. One witness testified that about sixteen years ago he heard Pillman say that he would like to own the land and another witness testified that Pillman claimed that he had a lease on the land. The clerk of the county court of Phelps county testified that he had recently made an examination of the old tax books to ascertain whether or not this land had ever been assessed for taxation. He testified that the two strips never appeared upon the tax books by their exact descriptions. He found .that in 1879 and 1880 the fractional east half of the southwest, quarter was assessed to Milton Santee (the two strips in controversy are embraced within the east half of said quarter section). In the year 1881, sixty-eight and eighty-nine one-hundredths acres of the east half of said quarter section were assessed as unknown. In 1882, forty-eight and eighty-nine one-hundredths acres of the fractional east half of said quarter section were assessed'to Milton Santee and fifty-six acres of the east part of said quarter section were assessed to James Carney. In 1883, forty-eight and eighty-nine one-hundredths acres of the fractional east half of this quarter section were assessed to Milton Santee. In 1885, 1886 and 1887, fifty-eight and eighty-nine one hundredths acres of the fractional east half of this quarter section were assessed to Milton Santee. In 1905, four acres (undescribed) of this quarter section and west ot tlie Gasconade River were assessed in the
“The petition alleges that she was in possession at the date of the institution of this suit, and the possession she. held that date was the possession of the date when the forged deed to her deceased husband was put on record. And now arises the only decisive question In the case. Was the possession of the defendant in this forged deed sufficient to make her possession lawful? There is no doubt that defendant and her son believed the deed to their ancestor to be a proper, • valid and genuine deed, otherwise they would have been slow to put it upon record. It is clear that thereupon the defendant held possession under a deed that she thought was genuine, but was in fact a forgery. ‘ Generally it may be said that any writing which purports to convey the title to land by appropriate words of transfer, and describes the land, is color of title, though the writing is invalid, actually void and conveys no title.’ [Dunnington v. Hudson, 217 Mo. l. c. 100.]
“Of course, this deed conveyed nothing and no interest in the ' land was' acquired by it, but being-recorded by the defendant and the land held by her under it, in good faith, for several years before the institution of this case, she, in my opinion, had sufficient color' of title to warrant her possession to be ‘lawful,’ and-for the reasons above set forth the judgment will be for the defendant.”
The court found in favor of appellant and against the claim of respondent with reference to the defense that plaintiff’s action was barred by the ten-year Statute of Limitations. The question as to the bar of the ten-year Statute of Limitations need not therefore be here discussed.
The court found for defendant on the theory that plaintiff’s cause of action was barred by the thirty-one-year Statute of Limitations (Sec. 1884, R. S. 1909), and it is with reference tó points urged by appellant against the action of the court in this regard that the appellate review is concerned.
I. With reference to the defense of the thirty-one-year Statute of Limitations, the court found the following facts: (1) That neither plaintiff nor those under whom he claimed had been in the actual possession of the land or paid any taxes thereon at any time since 1870 (which was more than thirty-one years before the commencement of this suit); (2) that the title had emanated from the Government more than ten years; (3) that plaintiff failed to bring his action within the thirty-first year. There was substantial evidence to support the foregoing finding of facts. But in order that the defense of said Statute of Limitations might be available to defendant, it was necessary that one additional fact be found, to-wit, that after the expiration of said above mentioned thirty-year period and before the institution of this suit, defendant must have been in the lawful possession of said land for one year. [Fairbanks v. Long,
II. Appellant contends that “lawful possession” as used in said statute cannot exist in the absence of color of title in the possessor. Respondent contends that the possessor neG(j 110£ c]aim amder color of title. This necessitates a discussion of the term “lawful possession” as used in said Statute of Limitations. The statute is as follows:
“Sec. 1884. Limitation in case of certain titles. . Whenever any real estate, the equitable title to which shall have emanated from the government more than ten years, shall thereafter, on any date, be in the lawful possession of any person, and which shall or might be claimed by another, and which shall not at such date have been in possession of the said person claiming or who might claim the same, or of any one under whom he claims or might'claim, for thirty consecutive years, and on which neither the said person claiming or who might claim the same nor those under whom he claims or might claim has paid any taxes for all that period of time, the said person claiming or who might claim such real estate shall, within one year from said date, bring his action to recover the same, and in default thereof he shall be forever barred, and his right and title shall, ipso facto, vest in such possessor : Provided, however, that in all cases such
It becomes at once apparent that the term ‘ ‘ lawful possession”'as used in the statute does not mean'possession based upon ownership of the title to the land— this for the reason that the statute contemplates that the “lawful possession” shall continue for a year after the thirty-year period (Fairbanks v. Long, supra; Collins v. Pease, supra) before the one so having lawful possession becomes ipso facto- vested with the title of the claimant. It therefore follows that the person in “lawful possession” must be some‘one o.ther than the owner.
In the case of Collins v. Pease, 146 Mo. 135, Williams, J., in discussing the question said: “One is in ‘lawful possession’ within the meaning of the act when he has not entered as a mere intruder or trespasser, but in good faith, claiming to be the owner.” In the foregoing definition the phrase “a mere intruder or trespasser” is evidently used as synonymous with the opposite meaning of the phrase “(one who enters) in good faith, claiming to be the owner” and therefore means a person entering into possession when he does not in good faith'believe himself to be the owner. So that the definition announced in the case of Collins v. Pease, supra, when reduced to its last analysis simply mehns that one is in the lawful possession within the meaning of said statute when he enters into possession claiming to own the same and in good faith believing that he is the owner. Is then color of title a prerequisite to the lawful possession? It is true that in perhaps all the cases involving the application of this statute, the possession was claimed under color of title. This is quite naturally so since the great majority of persons who go into possession of land in good faith claiming to own the same do so under a deed or instrument purport
“The term [color .of title] implies that a valid title has not passed.” [1 R. C. L. 707.]
III. Appellant further contends that tbe land was never assessed for taxes and that since tbe record owner was a non-resident of tbe State this excused tbe non-payment of taxes. ^ will noticed that tbe statute makes no exception in this regard. All tbe showing that tbe statute requires in this regard is that
Here the person who owned the title during all the thirty-year period testified that he did not care enough about the land to even make any inquiry about it, and that he did not undertake to pay any taxes on the land because he thought the land was not worth “five cents.” Under such conditions the failure of the officials to properly assess the land should not operate to exempt him or his granteee from the bar of the statute.
In support of his above contention appellant cites the following cases: Harvey v. Meyer, 117 Cal. 60; Dierssen v. Nelson, 138 Cal. 394; Swank v. S. I. & P. Co., 15 Idaho, 353; Wisner v. Chamberlin, 117 Ill. 568, and Peoria, D. & E. R. R. Co. v. Forsyth, 118 Ill. 272. But an examination of those authorities will disclose that they are based upon statutes which require that the party who claims title by adverse possession for the required statutory time must show that he has paid all taxes “which have been levied and assessed upon such land” or which have been “legally assessed” against such land during the time of his adverse possession. It is therefore apparent that the respective holdings in those cases would not be authorities in point in the present case.
PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.