| Mo. Ct. App. | Jan 30, 1915
This is a suit for trespass alleging that the defendant company cut, or caused to be cut, and removed the timber on one hundred and sixty acres of land in Pemiscot county, Missouri, owned by plaintiff intestate, E. H. Young, who died in 1912, shortly before this suit was brought. The suit is by Young’s administrator, but, as the cause of action accrued to him during his lifetime, he will be spoken of as the plaintiff. Carl Bloker, secretary of the defendant company and its active manager, was originally a defendant, but the cause was dismissed as to him on proof that all his acts were for his company. The jury, under the court’s instructions, returned a verdict for plaintiff for $1250' and defendant appeals. The tres pass was Committed in 1909 and 1910 and there is no question but that the defendant, claiming the right to do so, sold the timber on said land and authorized and directed the timber to be 'cut and removed therefrom. Defendant denies plaintiff’s ownership of the land, asserts title in itself, and the chief question at issue is
The land has never been enclosed, improved, or in the actual occupation of any one. It is, or at least was until recently, swamp land and chiefly valuable for its timber. On and prior to January 1, 1895', one S. H. Beverforden owned this land under a perfect chain 'Of title. On that date he, jointly with his wife Emma A., made and executed a warranty deed, which, as recorded, shows the land conveyed to Prank E. Dervitt, of Jackson county, Missouri. There has never been any conveyance from Prank E. Dervitt to any one, nor is there any evidence, direct or circumstantial, that any such person ever existed, except as may be inferred from the record of this deed. The next conveyance of the land is a deed from Prank E. Dewitt, of Independence, Jackson county, Missouri, to E. H. Young, of the same county. This deed is properly acknowledged before a notary public of that county. In March, 1897, E. H. Young paid the taxes on this land for four years, being 1892 to 1896 inclusive. The taxes for 1897 and 1898 being delinquent, a suit for delinquent taxes was instituted in 1900 against E. H. Young, resulting in a judgment and sale of the land and a sheriff’s deed, dated February 22, 1901, conveying the land to one William Hunter. The defendant claims by mesne conveyances under this tax deed. At that time Young was a resident of Kansas and service was had in the tax suit by publication. The purchaser at the tax sale, Hunter, sold and conveyed the land in 1902 to several persons, who then, or later, formed the defendant company, an Ohio corporation, and at once conveyed the land to it.
When the trespass was committed in 1909 and 1910, the defendant company, or Carl Bloker who held the legal title for it, had and claimed no title to this land except that derived from E. H. Young under the tax sale and deed above mentioned. It is shown that this
At the time of this trial the original petition and other papers constituting the roll in the tax suit were lost or destroyed. These papers were, however, in existence at the time the controversy arose oyer this land and each party had a certified copy of the petition, which showed that the land described therein was not the same land as that described in the judgment and tax deed. The clerk who had made and certified to these copies testified that he was careful in making1 and
It is shown that defendant, or Bloker for it, brought a suit and obtained judgment to quiet title to this land in 1912 against E. Dervitt and the unknown, heirs, devisees, etc., of E. H. Young, deceased. This service was by publication and as E. IT. Young was then living, a suit and judgment against his unknown heirs, etc., could and did avail nothing. The judgment against Dervitt, assuming that there was such a person and that he had title and that the judgment conveyéd same, yet it was subsequent to the trespass complained of and could be given no retroactive effect. Such decree, however, though it adjudges the defendant, then plaintiff, to be the owner of this land, is so only as between it and Dervitt and it can hardly be said to convey even Dervitt’s title, if any, to this defendant. Its effect is to debar Dervitt, or any one claiming under him, from thereafter asserting title. “The effect of an ordinary decree to quiet title is.only to preclude defendant, or any one claiming under him, from asserting ag'ainst plaintiff, or his successors, any title to or interest in the real property affected, and such a decree does not have the effect of transferring to plaintiff, as against a stranger to the suit, the title theretofore held by defendant. ” [32 Cyc. 1384. See also Powell v. Crow, 204 Mo. 481" court="Mo." date_filed="1907-05-29" href="https://app.midpage.ai/document/powell-v-crow-8016167?utm_source=webapp" opinion_id="8016167">204 Mo. 481, 102 S. W. 1024.]
It should be noted that although the record of the deed shows a conveyance from Beverforden to Dervitt, while E. H. Young’s title is from Dewitt, yet, the defendant’s only claimed title is from and under Young by virtue of the tax sale and deed. If Young had no title, then defendant had none. Young is the common
If, however, we should extend the doctrine that plaintiff must recover on the strength of his own title and not on the weakness of that of defendant and thereby inquire into the title back of the common source, Young, defendant will not fare any better. -The only broken link claimed in plaintiff’s title is that the grantee in the conveyánce from Beverforden is Frank E. Dervitt, while the grantor in the next conveyance to Young is Frank E. Dewitt. Where there is a discrepancy in the name of the grantee in one conveyance and the grantor in another forming a chain of title, it is permissible, and not violative of the rule against allowing parol evidence to vary or contradict a written instrument, to show that such grantee and grantor are one and the same person. This is true where the discrepancy is caused by an error in recording a conveyance, as is claimed here, or is an error of the scrivener in writing the deed, or that the person himself is known and designated by different names or different forms or spelling of the same name. [Einstein v. Land & Lum
In the present case not only do these deeds indicate the indentity of the grantor and grantee as being the same person by the close similarity of the spelling and pronunciation of the names and the sequence of the dates of the two instruments and the descriptions of the residence of each, but the wife of Beverforden, hermit one of the grantors in the deed recorded as having Dervitt, grantee, testified positively that the land, was sold and conveyed to Frank E. Dewitt whose residence was Independence, Jackson 'county, Missouri, with whom she was acquainted and to whom she and her husband had made another conveyance a short time previous and that she never knew of or made a deed to a person named Dervitt. She is corroborated in this by the fact that the former conveyance was made to carry out an exchange of land and produced a certified copy of the deed given to her in exchange executed by Frank E. Dewitt, of Jackson county, Missouri, and acknowledged before a notary public of that county. In the absence of any evidence that there ever was such a person as Frank-E. Dervitt, or that he or any one under him ever made any claim to or conveyance of this land, this evidence must be taken as conclusive that the grantee and grantor in these respective deeds are one and the same person.
It is strenuously objected that during Mrs. Beverforden ’s examination she was handed an uncertified copy of the recorded deed showing the grantee to be Frank E. Dervitt and was allowed to use this copy as a basis of her evidence. At most, however, this copy
Defendant insists that it should have been submitted to the jury to determine whether the original petition in the tax suit against Young correctly described the land in controversy, such petition being lost, and also whether the grantee, Dervitt, as shown by the recorded deed, was in fact the same person as Dewitt, the grantor of Young. Where the evidence of a fact is all one way and of such strength and so free from suspicion of error that the court could and would not permit the verdict of the jury to stand to the contrary, then such question should not be submitted to the jury, but the fact should be treated as fully established. [Regan v. Railroad, 144 Mo. 623" court="Mo." date_filed="1898-06-14" href="https://app.midpage.ai/document/ragan-v-kansas-city--southeastern-railroad-8012875?utm_source=webapp" opinion_id="8012875">144 Mo. 623, 634, 46 S. W. 602; Weldon v. Railroad, 93 Mo. App. 668" court="Mo. Ct. App." date_filed="1902-04-07" href="https://app.midpage.ai/document/weldon-v-omaha-kansas-city--eastern-railway-co-6620403?utm_source=webapp" opinion_id="6620403">93 Mo. App. 668, 67 S. W. 698; Pope v. Cable Ry. Co., 99 Mo. 400" court="Mo." date_filed="1889-10-15" href="https://app.midpage.ai/document/pope-v-kansas-city-cable-railway-co-8009690?utm_source=webapp" opinion_id="8009690">99 Mo. 400, 12 S. W. 891.]
The defendant also claims that plaintiff is barred by laches from maintaining this suit under the law as declared in Shelton v. Horrell, 232 Mo. 258, 134 S.W. 988" court="Mo." date_filed="1911-02-09" href="https://app.midpage.ai/document/shelton-v-horrell-8017412?utm_source=webapp" opinion_id="8017412">134 S. W. 988, 137 S. W. 264, and Toler v. Edwards, 249 Mo. 152" court="Mo." date_filed="1913-03-28" href="https://app.midpage.ai/document/toler-v-edwards-8018332?utm_source=webapp" opinion_id="8018332">249 Mo. 152, 155 S. W. 26. The facts of this case, however, do not bring it within the rule announced in these cases. This is not a case where a plaintiff, claiming to own land, stands by and sees or knows that another is improving it and enhancing its value by expending labor and money thereon in good faith. As here shown: “all that the Pemiscot Land & Cooperage Company did to it
The amount which plaintiff recovered is less than that which defendant received from the sale of the standing timber and is amply supported by the evidence.
Numerous errors are assigned and discussed in the able brief for appellant, which we have examined and found not reversible. A discussion of the same here would lengthen this opinion and serves no useful purpose. From what we have said the case should be affirmed and it is so ordered.