84 Mo. 352 | Mo. | 1884
Lead Opinion
On the 5th of January, 1877, the plaintiffs sued in ejectment to recover a tract of land in United States survey six hundred and seventy-one, situated in the city of St. Louis, immediately north of Mullanphy street, fronting about one hundred and thirty-seven feet on the Mississippi river, and running back from it with the same width to the depth of about two-'hundred feet. The petition is in the usual form. The Laclede Gas Light Company made separate answer denying specifically the allegations of the petition. The .city of St. Louis, in its answer, put in issue the allegations of the petition, and pleaded the statute of limitations.
The trial, which was by the court, resulted in a. judgment for the plaintiffs, in which Lavinia Campbell recovered ten twenty-fourths, Annie L. Murray, three (twenty-fourths, and Amelia B. Hartnett three twenty-
The premises sued for are part of a larger tract conceded to Pierre Chouteau in 1799, and confirmed to him by the old board of commissioners, in 1811. A certificate of the date of the confirmation was issued to him certifying that he was entitled to a patent under the provisions of the act of congress of March 3, 1807. This confirmation was duly surveyed, and the survey, numbered six hundred and seventy one, corresponding with the number of the certificate, was returned to and filed in the office of the recorder of land titles for the United States, on the 2d of April, 1817. After submitting these documents in evidence, the plaintiffs read the act of congress approved June 6, 1874, entitled “An act for obviating the necessity of issuing patents for private land claims and for other.purposes ; ” also the act of the general assembly of the state of Missouri, approved March 24, 1875, entitled “An act concerning the act of congress, of June 6,1874.” Session acts 1875, p. 85. There was no controversy about the original title, and it was admitted by all parties that the premises in dispute were embraced in the said confirmation and survey, as well as in the two records of suits subsequently introduced by the
The plaintiffs’ chain of title extends down from these parties as follows : 1. A conveyance from Edward C. Payne and John B. Payne, to Thomas J. Payne and Daniel Me. Payne, dated October 4, 1828, and recorded October 30, 1828. 2. A conveyance from James B. Payne to Thomas J. Payne, dated October 11, 1829, and recorded December 15,1829. 3. A conveyance from Daniel Me. Payne to Thomas J. Payne, dated June 14,1831, and recorded June 30, 1831. 4. A conveyance from Thomas J. Payne to Edward P. Wheeler, dated August 1, 1831, and recorded October 10, 1831. 5. Evidence of the death of Edward P. Wheeler, October 22, 1832, leaving as his surviving issue Henry M., Ann Eliza, and Lavinia, who was a posthumous child; evidence, also, of the death of Henry M. without issue, of the marriage and death of Ann Eliza, leaving issue, Annie L. Hartnett, the wife of P. H. Murray and Amelia E. Hartnett; who, along with Lavinia Campbell, compose the surviving heirs of Edward P. Wheeler and are parties plaintiffs in this case. 6. It was also proved by plaintiffs that all the land sued for in the case, except a strip of. about nine to fifteen feet wide off the west side of the tract, had been made by accretions from the river since 1853.
■ The defendants’chain of title was as follows: 1. Record of a suit in chancery by William Waddingham against the widow and infant children of Edward P. Wheeler, in which a decree was entered May, 20 1834, vesting one-half of the Wheeler title to this real estate in said Waddingham. 2. Record of a suit in partition by William Waddingham against the widow and infant
In this statement I have not aimed to describe definitely the character of the conveyances and decrees under which the respective parties hold, nor is it •necessary to do so, except as to such as have been made
The defendants objected to the certified copies of the deeds from Edward C., Daniel Me., JohnB., and James B. Payne, under which Thomas J. Payne acquired their titles in 1828, 1829, and 1831. The deed of August, 1831, by which he transmitted title to Edward P. Wheeler was not objected to. The acknowledgment appearing on the deeds so objected to was in the following form: “I (naming the officer) do certify that this deed from (naming the grantor) to (naming the grantee) was this day produced to me in my office, and acknowledged by said (naming the grantor) to be his act and deed. Whereupon the same, together with this certificate is certified to the proper officer for record. In testimony whereof I have hereunto set my hand, affixed the seal of said county this-day of-.” This acknowledgment is defective in failing to state that the grantor was personally known to the officer taking it to be the same party subscribing the deed. It was contended on the part of plaintiffs that the copies were admissible under the curative effect of sections 2305 and 2306 of the statutes, inasmuch as the originals had been recorded more than thirty years before the copies were offered in evidence. If the objection was well taken it would defeat four-fifths of the title upon which plaintiffs recovered.
It is evident that section 2305 is a continuation, as it were, of the act of February 2, 1847, which was passed for the purpose of quieting vexatious land litigation, with some slight changes in its phraseology. The language of this section on its face purports to make such copies as offered in evidence in this case proof of notice of the originals as to all persons. But it has been held that the provisions of the act of 1847 must be so construed and applied as “not to defeat a title regular in every particular, acquired in good faith and for a
But in another aspect of the case, presented in the purchase by Waddingham of the supposed outstanding title originating in subsequent deeds from the Paynes, the application of the curative statute is not without ■some difficulty. If Waddingham had in 1846 acquired title immediately from the Paynes, he could not have been a purchaser without notice. TIis relation to their former conveyances burdened him with a notice of them as already stated. He could not, by such purchase, acquire a vested title in good faith which would exempt him, or those claiming under him after the passage of the statute from the operation of its curative effect. Such exemptions belong, as we have seen, to innocent purchasers for value. But undoubtedly a person with notice, can acquire a good title by or through a person without notice of equities or former conveyances. Now this outstanding title originated in a conveyance by the Paynes to Mary Jones in 1846. The deed to her, as well as the subsequent deed by which Waddingham acquired title was by quit-claim to the premises. All other deeds in the chain of title to this outstanding claim, which were made prior to 1847, were of the same character. It is a general principle that a quit-claim deed is notice of pre-existing equities. Stivers v. Horne, 62 Mo. 473; Mann v. Best, 62 Mo. 491; Ridgeway v. Holliday, 59 Mo. 444. An important exception to this rule has been approved, where the equities are of such a character as the registry acts will apply to ; such as can be lawfully ¡spread upon the records. Fox v. Hall. 74 Mo. 315. These former conveyances could not properly be recorded, until another acknowledgment, or until proof of
It has been argued by counsel for plaintiffs that Waddingham was prohibited from buying in this outstanding title on account of being a tenant in common with the plaintiffs. The title would undoubtedly enure to them, if it was purchased while he held such relation to them in 1851, when he acquired from Benjamin H. Payne ; whether he held such relation depends upon the records and deeds by which the defendants claim that the Wheeler title was transferred from the plaintiffs or their ancestors to Waddingham, and the facts of adverse
This interest was undivided and he next sues in partition, bringing the suit June 11, 1836, against the same children and their mother, as widow entitled to dower. Of course, in this suit, Waddingham claimed that he was entitled to an undivided half interest. Unfortunately for him the service of process in this suit was omitted as to all the children, who were all minors
But it is claimed by defendants that while the partition proceedings, and commissioners’ deed in pursuance of them, may be ineffectual to divest title, they are sufficient to establish a color of title, by which Waddingham and his successors have enjoyed and used the land adversely to the plaintiffs and their ancestors ever since the sale in partition, in June, 1837. This brings us to the statute of limitations, which involves the most important question in the case. It is a general rule that the statute must be pleaded by those who invoke its benefits. The Laclede Gfas Light Company did not plead it,, and the city of St. Louis, which did plead it, has compromised its case, released all errors, and actually dismissed its appeal, which removes from our consideration all errors made as against the city alone. But it has-been held that the action of ejectment constitutes an exception to the rule, which requires the statute to be pleaded in order to admit of the defence secured in it to-proprietors of land, whether defending or suing. Nelson v. Brodhack, 44 Mo. 596. Before going into the merits of the defence of the statute of limitations, it becomes necessary to dispose of a preliminary objection raised by the plaintiffs to the running of the statute prior to 1874.
It is contended by plaintiffs that the legal title had not passed from the government until the passage of the-act for obviating the necessity of issuing patents, which was approved in 1874, while the defendants contend that the legal title was out as early as 1824. In proof of their position they submitted a copy of the patent to Pierre Chouteau of that date, certified by the recorder of St. Louis county. It is regular in all respects and shows an authentication under seal. The statutes of
In McGarrahan v. Mining Co., 96 U. S. 323, Chief Justice Waite says: “The failure to record the patent does not defeat the grant. It only takes from the party one of the means of making his proof. If he can produce the patent itself, and that is executed with, all the formalities required by the law, he can still maintain his rights under it. He is not, therefore, necessarily deprived of his title because of a defective record. He is in no worse condition with the signatures omitted than he would have been if the description of his land had been erroneously copied, or other mistakes had "been made which rendered the record useless for the purposes of evidence. A perfect record of a perfect patent proves the grant; but a perfect record of an imperfect patent, or an imperfect record of a perfect patent, has no such effect. In such a case, if a perfect patent has in fact issued, it must be proved in some other way than by the record.” Clearly when the record fails to prove a perfect patent, the grantee or those claiming under it are at liberty to prove the patent by other lawful testimony. In submitting the copy from the St. Louis records the defendants have sought to do this under our statutes, which declare such copies to be prima facie evidence of the instruments set forth in the copies. I am at a loss to perceive how this prima facie evidence is successfully impeached by an imperfect record at Washington. The recorder of the land office had no authority to record a patent without a seal, anymore than our recorder has the right to record an unacknowledged deed. It seems to me that such a record, while it is no evidence of a grant, is necessarily no evidence against it, except as against a person giving it in evidence, and claiming it as proof of
Proceeding now to the defence of the statute of limitations, it will be necessary to state some facts bearing upon it in connection with the adverse possession relied upon by defendants. As already stated the chancery proceedings made Waddingham a tenant in common with the plaintiffs or their ancestors. It is admitted that the ■chancery proceeding and the proceeding in partition both included the land in controversy. Being a tenant in common that relation is presumed to continue until it has been terminated by a purchase of his co-tenant’s interest, or by an ouster of them, ripening into a superior title, under the statute of limitations. Having seen that the partition proceedings, by reason of a want of service on the minors, could not work a legal transfer of their interest to Waddingham or any one else, it remains for us to consider whether they have been divested of their title under the statute of limitations by an ouster and adverse holding by Waddingham, and those claiming under him. And it is in this connection occurs the most important point in the case, which relates to the meaning and contents of the commissioners’ deed to Waddingham under the partition proceedings. The court below held that the premises in controversy were not included in such deed. If this is so, the deed could not operate by way of color of title any more than by way of legal transfer. A deed to constitute color of title must include the land in respect to which it is invoked. ■In this ruling of the circuit court I am unable to concur.
In order to understand this point it will be necessary
Now, after having laid off the lots as stated, the commissioners proceeded to sell. The order of sale included the whole premises described in the suit. In this deed to Waddingham they sold lots one, two, three, and four for over $23,000; while they designated them as lots by their numbers on the plat, they gave the river as their eastern boundary. The deed recites: “ Said lots being all bounded east by the river Mississippi, and west by an alley twenty feet wide.” This includes the riparian strip by metes and bounds. It is claimed that the eastern boundary of the land conveyed, as fixed by the commissioners, was a mistake, because the lots did not run that far on the map. I am at a loss to find any facts or circumstances showing that the commissioners were mistaken, or that they did not intend to convey the land up to the river. In their report of sale, they recite the fact that they laid the premises out in lots, giving their numbers, “ and including the alley twenty feet wide, together-with a small space between the front lots and the river,” which they declare “compose the premises in the petition mentioned and ordered to be sold.” They also say: “ The commissioners supposed that the property would sell to better advantage by being laid out as in said plat, with the alley, and the space between the front lots and the river - makes a part of the said front lots as sold to
Whether the plaintiffs or their ancestors are barred by the statute of limitations depends upon the character of Waddingham’s possession, and of those claiming under him. As a tenant in common, his possession is deemed the possession of his co-tenants, unless it is made manifestly adverse to them by open and notorious-acts, disclosing such a result. It is sufficient if his acts are of such a nature as by their own import to impart information and give notice to the co-tenants that an adverse possession and an actual exclusive ownership are intended to be asserted against thefii. Warfield v. Lindell, 38 Mo. 561; Lapeyre v. Paul, 47 Mo. 586; Warfield v. Lindell, 30 Mo. 272; Long v. Stapp, 49 Mo. 506. The court very properly declared that possession alone, however long continued, did not constitute an ouster by a tenant of his co-tenant. Such is not this case. When the proprietorship of Waddingham and those claiming under him is considered, it is impossible to resist the conviction that it was intended to be adverse to the plaintiffs and their ancestors, and was actually known by them to be of that character and intent. After receiv
■When a party claims the exemptions of the statute of limitations, it is incumbent on him to make them out
I may add here that the administrator’s deed, which assumed to' pass the second outstanding title of the Paynes from Niles, deceased, to Benjamin Payne, was properly excluded as an instrument insufficient to convey title. The law of 1845 required such deed to be acknowledged in open court. , E. S. 1845, § 40, p. 89. It was not so acknowledged. But while it was ineffectual to transmit title, it was competent evidence in support of the adverse holding of Waddingham, he having assumed to acquire and hold said title after ouster of his co-tenants, certainly long after he assumed to have all the title they had ever possessed.
I do not deem it necessary to review the instructions in detail. Prom the'views I have, expressed, the court will, in another trial, be able to give instructions and declarations of law applicable to the issues of the case. The j udgment pro forma .of the court of appeals is re
Concurrence Opinion
Although the case of
Valle v. Obenhouse, 62 Mo. 81, seems to have been reluctantly cited in the foregoing report of the commissioners, and is evidently not relied upon as conclusive authority, on the question of the statute of limitations, I deem it proper to say, that while I concur in holding the plaintiffs to be barred, it is not upon the authority of that case; and I desire to add to what I have heretofore said in my dissenting opinion (62 Mo. 90), that a statute which deprives a married woman of her property, for failing to sue for it in twenty-four years, when during all that time she had no right to the possession, and could not, therefore, maintain an action for such possession, is, in my judgment, plainly unconstitutional. The construction given to the statute by a majority of the court in that case (62 Mo.) cannot, therefore, be the correct one. Kanaga v. R. R., 76 Mo. 207, and cases there cited.