256 Mo. 2 | Mo. | 1914
— Suing in ejectment on a petition in conventional form, with ouster laid as of a day in March, 1909, plaintiff had a verdict at a trial to a jury in the Polk Circuit Court for possession of the two parcels of land described in his petition, to-wit: a harrow strip off of the east side (a bit wider at one end than the other) and a strip in the shape of a wedge off the north side of the southwest quarter of the southeast quarter, section 31, township 35, range 24. We omit technical descriptions which were by metes and bounds, courses and distances. Prom a judgment following said verdict, defendant on due and apt steps comes here by appeal. The amount of land in question is eighty-five one-hundredths of an acre, the dispute is over party lines, and the answer is a general denial.
There is no evidence tending to show that plaintiff or his grantors, near or remote, had been in possession of the two strips of land for a great many years more than sufficient to confer title by limitation, if the element of adverse possession be present on behalf of defendant. Contra, there was uncontradicted evidence tending to show that defendant had been in possession for a great many more years than sufficient to confer title by limitation, provided that possession was adverse and under a claim of right. The respective farms of defendant and plaintiff were coterminous and both had been under the plow for a generation or more and in actual possession {pedis possessio). On the north side of said forty there was for many years a party fence, and on the east side a like fence. Both these fences apparently divided the lands of plaintiff and defendant. There was an issue, threshed out at the trial (and decided against defendant), as to
Any further facts necessary to pass on material points will appear in due course and proper place in the body of the opinion, in connection with the disposition of those points. We state questions in our own way.
I. Of rulings on the admission of evidence.
(a) In putting in his chain of title plaintiff offered the record of sundry deeds passing between
The broad objects of our registry acts being to preserve muniments of title against the vicissitudes of loss or slips and lapses of memory and to give notice thereof to the world, it would be expected that such beneficent purposes would be supplemented by a liberal rule regulating the use of such deed records in the courts of the land. A stringent rule in that regard could not justify itself on the inherent good sense of the thing; for the record presumably in the first instance is as good as, and a replica of, the original. Accordingly we find two very definite, liberal statutory rules directed in part to that end, thus:
One (R. S. 1909, sec. 2818) making deeds acknowledged as provided by the statute admissible without further proof of their execution, thus relieving parties from common law burdens of proof of execution. The originals are always admissible, regardless of the records (Parkinson v. Caplinger, 65 Mo. l. c. 294) and the right to use or have the originals produced may be a very valuable right, for example, in case the record is defective.
The other (Ibid., Sec. 2819) permits the use in evidence of the record of a deed whenever (quoting) “it shall be shown to the court by the oath, or affidavit of the party wishing to use the same, or of anyone knowing the fact, that such instrument is lost, or ■not within the power of the party wishing to use the same.”
In the instant case it was sufficiently shown, under the oath of plaintiff, that the originals of the deeds, whose records were offered in evidence and allowed over objection, had never been in his hands. He had
“The words of the statute, ‘not within the power,’ should be construed as not within the control or possession of the party wishing to use a copy — that is, not in the possession of the party, his agent, servant or bailee, or other person under his control. Therefore, if the original is presumed to be in the hands of a third person, a copy may generally be read without the preliminary oath or affidavit of the party wishing to use it; and in all other cases, in the absence of any suspicion of unfairness, notMng more should be required than that the oath or affidavit should show that the original is not within the control of the person offering a copy.”
Agreeably to the above pronouncement are Boyce’s Trustees v. Mooney, 40 Mo. l. c. 105 et seq.; Patton v. Fox, 179 Mo. l. c. 533 et seq.; and Walker v. Newhouse, 14 Mo. *373.
The point is ruled against appellant.
(b) In the devolution of his title plaintiff offered the record of a deed from one Tillery, administrator of Granville L. Noland, deceased, to Harriet E. No-land, a link in his chain. As appears in the abstract of record, as corrected by an ink erasure, the land description in that deed was as follows:
“The southwest quarter of southwest quarter of section number thirty-two (32) and east half and*10 southwest quarter of southeast quarter 31, 35, 24, containing 160 acres, and lot 9 NW. fractional quarter, section 6, township 34, range 24, situate in said county of Polk and state of Missouri.”
In appellant’s brief the description reads this way: “East half and southwest qr. of southeast qr., 31, T. 35, R. 24.” We shall assume the description in the abstract, as corrected by the ink erasure, is the correct one. Appellant contends that the bare numerals, “31-35-24,” are meaningless and cannot be judicially held to be a description of any land. Therefore, the deed conveys nothing, and, having objected to its introduction on that score, he contends it was error to admit it.
It will be observed, on one hand, as of some value, that the first forty in the description in the abstract is said to’ be in “section 32;” that all of the land is in Polk county, Missouri; that the amount of land in the first part of the description (i. e., down to the “lot”) is said to be one hundred and sixty acres; that four forties are described, but, on the other hand, it will be observed that the word “section” is pretermitted before the figures “31,” the word “township” before the figures “35,” and the word “range” before the figure “24,” nor do any abbreviations take their places.
As to the contention now in hand, we say: Having regard for the statute which permits the use of abbreviations and numerals in land descriptions in tax proceeding's, Revised Statutes 1909, section 11520 (which statute itself is founded on prevailing usages in this State in relation to the use of customary numerals and abbreviations in land descriptions), and having regard to the exposition of that statute, together with judicial pronouncements upon the usages aforesaid in such cases as Simmons v. Affolter et al., 254 Mo. 163; Hector v. Horrell, 248 Mo. 166; Miller v. Keaton, 236 Mo. 694; State ex rel. v. Vaile, 122 Mo. l. c. 48 et seq.; Burnett v. McCluey, 78 Mo. l. c. 691
In that view of the matter, the admission of the deed could not affect the merits; and the error, if any, becomes nonreversible, a mere academic speculation, worth something for doctrine for doctrine’s sake, but worth nothing for real justice in the case at barí Hence, the point is ruled against appellant.
(c) It is assigned for error that the court excluded evidence tending to show that plaintiff’s grantors only claimed up to the fence line, but we see no such ruling on the part of the court. What happened two or three times was this: When one witness was on the stand, Mr. LaRue, it was sought to prove the negative fact that he heard no claim at all on the part of a then owner, “Uncle Jeff Fisher.” By another witness, Mr. Plopper, who lived in the neighborhood, it was sought to show the same fact. The court excluded the testimony of both witnesses on that point. No testimony was excluded of conversations or statements of
Finally, a witness, Rains, was on the stand. He testified that he lived in the neighborhood fifteen years before, off and on; that the fences are now on the line they were then on; witness had worked on the fences and testified that the respective owners worked the land up to the line of the fence and he had worked for both owners. Testimony of like character as above was excluded at this point. Defendant then made the following tender of evidence: “I offer to show that for the last fifteen years the different parties who have owned and tended the Akins tract of land never have claimed any land beyond the fence line.” To that general offer the court said: “Unless he heard them say they did not claim it beyond the fence line, it will be hearsay; if be heard them say they did not claim it, it will be admissible.” The witness then answered: “They always• claimed the fence was on the line and was put there from where the corner rocks stood.” The rulings of the court and what was done under them indicated his theory to be that acts of owners were admissible and statements of owners in possession were admissible, (vide, Heynbrock v. Hormann, post, p. 21, where the authorities on that head are re
We rule tbe point against appellant.
II. Did plaintiff show a good legal title?
(a) In leading up to tbe turning question on this bead, some applicable observations are not amiss, thus: There was no common source of title admitted, assumed or proved to exist. Hence in dealing with imperfections in plaintiff’s title, if any, we may not invoke tbe rule of convenience or of estoppel which takes no note of defects in tbe common stem of title anterior to tbe common source. [Feller v. Lee, 225 Mo. l. c. 328.]
So, in tbe strict legal action of ejectment plaintiff must recover on tbe strength of bis own (not on tbe weakness of bis adversary’s) title. He must recover on a legal and not on a mere equitable title. So, be stands to be cast if there is shown to be outstanding a subsisting legal title. So, be must either recover on bis paper title or on title by limitation. We cite tbe statutes and some cases sustaining one or the other of those trite propositions in ejectment (From those cases discern all; for they announce tbe harmonious doctrines of this bench.): Martin v. Kitchen, 195 Mo. l. c. 487; Nalle v. Thompson, 173 Mo. l. c. 614 et seq.; McAnaw v. Clark, 167 Mo. l. c. 447; Thompson v. Lyon, 33 Mo. 219; Norcum v. D’Oench, 17 Mo. l. c. 114; Kingman & Co. v. Sievers, 143 Mo. l. c. 525; R. S. 1909, secs. 2382, 2389.
In tbe instant case, on this record, neither plaintiff nor bis grantors were ever in actual possession of tbe two parcels of land in dispute. To tbe contrary, so far as tbe record shows, defendant always bad possession since title emanated from tbe Govern
(b) It will not be necessary to set forth the deeds in plaintiff’s chain of title. For the purposes of the point now in mind, it may be assumed that a perfect title was shown, barring one particular, now to be mentioned. Plaintiff introduced a patent, dated in 1845, from the United States to one Isaac Yroth, for the southwest quarter of the southeast quarter of section 31, township 35, range 24, and obtained an instruction based on that patent, as a muniment of title. Yroth never conveyed, so far as shown. There is some confusion in the record and at one place it would seem that the record of the patent was offered in evidence instead of the original; at another, the original. At a certain time plaintiff’s immediate grantor, James D. Akins, brought a suit in equity on service by publication to clear up his title against sundry persons, among them, as appears from the body of the decree itself, one Isaac Troth, if living, and the unknown wife and unknown heirs of “Isaac Troth,” if deceased. Isaac Yroth is not made a party nor is any one, known or unknown, by the name of Yroth. No objections, nisi, were offered to the decree and it is not now contended it was not effective to clear up the title in all other respects, save in the break in a conveyance from Yroth, the patentee. Such exceptions were saved when a demurrer was offered to the evidence by defendant at the close of plaintiff’s case and overruled, and when instructions were asked and overruled, as bring here the question whether that decree, -which purported to vest the title out of Isaac Troth and into James D. Akins, had the effect of vesting in plaintiff’s grantor the title of the original patentee and entry-man, Isaac Yroth. It is of some significance that,
“Scmctus Yvo erat Breto;
Advocatus, et non latro,
Bes mirona populo.”)
But I know of no tolerated usage permitting Y to have the sound value of T. Hence, notice to Troth, as here, cannot be held notice to Yroth. Accordingly we rule that, upon the utmost fringe and stretch of liberality, the two names are not idem soncms. With that ruling plaintiff’s title breaks and he cannot re
III. Of plaintiff’s surveys.
Section 31 in question is an exterior section lying adjacent to and east of the range line. It is a fractional section, the lines running long and making an excess over 640 acres. Defendant owns the forty in the southeast quarter of section 31 lying east of plaintiff’s forty. Defendant contends that under Federal laws and regulations the excess must be thrown into the west half of section 31, and relies on Knight v. Elliott, 57 Mo. 317, and cases following that, for the doctrine that the east line of the section should be ascertained by establishing the section comers on the southeast and northeast and then measuring westwardly forty chains, making the east half of the section 320 acres, each quarter of it 160 acres and the two tiers of forties in the east half of the section exactly forty acres each, thus throwing all the excess in the west half of the section. Defendant further contends that plaintiff’s survey was not made in accordance with Federal rules as set forth in the Knight-Élliot case. Plaintiff contends that the survey was made in accordance with the State statute (Chap. 115, R. S. 1909) and was not contrary to Federal rules; that all the Government comers of the section were known and found except the southeast corner; that it was established by a correct survey; that the quarter section corner on the east line of section 31 was a Government comer and was known and found, and, as we understand, his contention is that the quarter section corner on the south line of section 31 was a known and found Government comer. Be that as it may, the ultimate contention of plaintiff is that the Government section and quarter section corners were found or established
If plaintiff be presently advised that his legal title-is found to be in a shape to support a judgment for possession, and a new trial is worth while, the shadows-in the record may be lifted.
Points ruled dispose of material questions. The-judgment is reversed and the cause remanded.