246 Mo. 1 | Mo. | 1912
Lead Opinion
In February, 1905, tbe defendant Norman N. Hill filed bis petition in tbe St. Francois Circuit Court returnable at tbe next May term thereof, in words and figures as follows:
“Norman N. Hill, plaintiff, v. Charles R. Marshall; Leander J. Marshall, John Marshall and the unknown heirs, grantees and devisees of John Marshall ; Della Lashley, the unknown heirs, grantees and devisees of Austin Marshall, deceased; the unknown heirs, grantees and devisees of Stanhope Marshall, deceased; the unknown heirs, grantees and devisees of James Marshall, deceased; Adeline Boggs and the unknown heirs, grantees and devisees of Adeline Boggs; and the unknown heirs, grantees and devisees of Sarah Marshall, deceased, defendants.
“Plaintiff states that he claims to own and does own, in fee simple, the following described lands situate in the county of St. Francois in the State of Missouri, to-wit: .
“All of the southeast quarter of the southeast quarter of section 1, township thirty-six north, range four east, containing about forty acres.
‘ ‘ He further states that he is informed. and believes that the above- named defendants claimed to have and own an interest in said lands.
“Plaintiff further states that defendants are nonresidents of the State of Missouri and cannot be served with process in said State in the manner prescribed in article four, chapter eight, Revised Statutes of Missouri 18991.
“Plaintiff states that he verily believes there are persons as hereinafter set forth, who are interested in, or who claim to be interested in, the subject-matter of this petition, as heirs, grantees and devisees of*9 the parties named in this petition and whose names he cannot insert because unknown to him.
“He further states that Adeline Boggs, formerly Adeline Marshall, and John Marshall, are children and heirs of Sarah Marshall, deceased, aforesaid; that he has no definite knowledge as to whether the aforesaid Adeline Boggs and John Marshall are still living, and hence their unknown heirs, grantees and devisees are máde parties to this action.
“He further states that James Marshall, deceased, Austin Marshall, deceased, and Stanhope Marshall, deceased, are also children and heirs of the aforesaid Sarah Marshall who died more than twenty years ago; that the said unknown heirs, grantees and devisees of Sarah Marshall and the unknown heirs, grantees and devisees of Adeline Boggs, John Marshall, James Marshall, Austin Marshall and Stanhope Marshall, claim title to the aforesaid premises, as plaintiff is informed and believes, by and through the aforesaid Sarah Marshall as the common source of title, the exact nature of which claim this petitioner is unable to state.
“Plaintiff therefore prays the court to determine the estate, title'and interest in said real estate of the parties herein respectively, and to define by its judgment or decree the title, estate and interest of the parties severally in and to such real estate.
“Norman N. Hill being duly sworn upon his oath states that the matters and things contained in the foregoing petition are true to the best of his knowledge and belief and that he verily believes there are persons, as described in said petition, claiming to own an interest in the lands described in said petition whose names he cannot insert because unknown to him, and their interests are set forth and described so far as his knowledge extends.
“Subscribed and sworn to before me this. day of February, 1905.” .
On October 20, 1906, the original petition in this case was filed by Leander J. Marshall, Mrs. W. S. Marshall, Adeline M. Boggs, and Adella M. Lasley, as plaintiffs, against Norman N. Hill, Jr., Charles R. Marshall and Doe Run Lead Company. The defendants were all notified and appeared. Mrs. Boggs conveyed her interest to the plaintiff Leander J. Marshall, and died. Leander J. Marshall also died and the action was revived and continued in the name of his daughter and sole heir, Winifred Marshall Dittmar, and an amended petition was filed in May, 1907. This petition admits the truth of the allegation in the petition of Hill against Marshall that the defendants in that petition claimed to own an interest in the lands, and denies specifically each and all other allegations thereof. It charges that these plaintiffs are the absolute owners of the land in controversy, that the suit was a fraudulent scheme to deprive them of their property, that the statements in the petition by which jurisdiction was attempted to be obtained by publication were false, that the notice by publication is void upon the face of the record, and that the judgment was obtained by false representations and upon false testimony. They set up their 'own title substantially as follows:
^Wherefore, plaintiffs pray the court to set aside the decree entered in the cause aforesaid; to permit the plaintiffs herein to controvert by proof the allegations of the petition in said cause, and to support the allegations herein, and upon testimony being heard, to declare the title which may have been conveyed by the United States by the patent of March 21, 1898, to Norman N. Hill, Jr., of southeast quarter of southeast quarter of section one, township thirty-six north, range four east, to be vested in the plaintiffs"as herein set forth. Plaintiffs’ interest herein to be decreed in said lands as herein set out; that is, to Winifred Marshall Dittmar two-fifths; Mrs. W. S. Marshall one-fifth; Adella M. Lasley one-fifth; Charles E. Marshall one-thirtieth; and to Norman N. Hill, Jr., or Charles E. Marshall, as the court may determine, five-thirtieths; and for all other and further equitable relief.” Petition was duly sworn to.
Hill answers that Charles E. Marshall repaid him one-half the amount of money he had paid for the land and that he supposed he had conveyed him one-half the land but denies any knowledge of the deed to Leander J. Marshall, although he does not deny its execution. Pie also pleads adverse possession of the
• The Lead Company sets up its option to purchase from Hill, upon which it has paid one hundred dollars, and expended in prospecting about three thousand dollars more, and asserts its willingness to pay the purchase price, fifteen thousand dollars, as soon as it can get title. It also says it has no knowledge of the truth or falsity of the matter set up in the petition and answer of Hill, except such as it pleads, and such records and facts as the law would charge it with knowledge of.
The answer of Charles R. Marshall set up, among other things, that the quitclaim deed of June 23, 1890, was obtained by Hill through fraud and misrepresentation and asks that it he set aside. To this answer Hill filed a motion to strike out that part referring to, and asking relief on account of, the quitclaim deed, on the ground, among others, that “in this cause Norman N. Hill can set up no title other than that which he set up, or might have set up, in his original petition in this suit, the decree in which is herein sought to be vacated.” All the matters pleaded in the several-answers were properly put in issue.
' The facts relating to the title to the land in controversy are as follows: On May 6, 1872, Norman N. Hill applied at the local United States Land Office at Ironton, Missouri, to enter the southeast quarter of the southeast quarter of section one, township thirty-six north, range four east, in St. Francois county, Missouri. His application is now on file in the local land office and the plat hook shows the entry (43,783) by its proper description. The register of cash entries and the tract hooks of the local office show the entry to cover the S. E. %, N. E. % of said section, hut the letter “S” appears written in pencil over the “N,” changing the description to the S. E. S. Eu%. The acreage of the last described tract (41.02) ap
The Flat Eiver lead district began to develop in the 80’s, the first map of it having been made, as disclosed by the record, in 1882. In 1886 and 1887 lands in the vicinity of the tract in question began to sell, and in December, 1889, Mr. Hill, who was then occupying a position in the pension office in Washington, seems to have become aroused, and paid thirty-eight dollars and some cents in taxes which had been assessed against the tract in controversy from 1874 to 1889 inclusive, and has since paid the taxes from year-to year, both before and since the emanation of the legal title from the United States, up to the time of the trial. In 1890 the defendant Doe Bun Lead Company was working on the Cofman and Hampton lands adjoining, and Judge Taylor was working his land east of it. June 23 of that year .Hill sent a lawyer named Sewall of Mansfield, Ohio, who is now dead, to Charles B. Marshall, and procured a quitclaim deed to the same land described in the second patent. This is the deed that is now being attacked by the defendant Marshall as fraudulent. He testifies that it was procured by misrepresentation, while Hill testifies that he obtained
December 17,1894, Hill wrote to the Commissioner of the General Land Office as follows: “I am the owner of the S. E. % of the S. E. % of Sec. 1, Tp. 36, B. 4 E., in St. Francois County, Missouri. The original patent has been lost. I desire to know what steps are necessary to secure a copy of said patent. The land was entered by me in 1872, I believe about May of that year and I have owned it since that time. ’ ’
This application proceeded with voluminous correspondence. February 25, 1895, the commissioner called upon Mr. Hill for an affidavit showing loss of the patent issued in case of C. E. 43,783, also conveyance from the United States of the land described in that patent, and an abstract showing that such land was free from all incumbrances, mortgages, assignments and conveyances, to which Hill replied with an affidavit that the patent had been lost and an abstract as follows: “Abstract of title tp S. E. % of S. E. 14, Sec. 1, Tp. 36 N., B. 4 E., United States to Norman N. Hill, entry dated May 6, 1872. S. E. %, Sec. 1, Tp. 36 N., B. 4 E., Chas. B. Marshall to Norman N. Hill, quitclaim deed, dated June 23, 1890, filed July 2, 18901. Bee. 39', p. 465.”
Further proceedings on this application led to the disclosure of the record of the deed to Leander J. Marshall. To this Mr. Hill answered that the patent of June 6, 1836, under private Land Grant Survey No. 870 to Joseph Gerrard, Jr., had divested the title from the United States,- so that the patent of August 13, 1872, was void, from which it followed that the alleged transfer by him to Leander J. Marshall was void, and that it was also void for the reason that it was obtained covertly and by fraud, and was intended to be and believed to be to Charles B. Marshall who after
Hill testified that he knew nothing of his own conveyance to Leander J. Marshall in 1874, but that he supposed the only conveyance he had executed had been an undivided half to Charles R. Marshall, while Charles R. Marshall testified at the time of the date of this deed he knew Mr. Hill personally and well. He was a justice of the peace in Richland county, Ohio, while Hill lived in Plymouth, Ohio, a part of which was in Richland county and part in Huron county; that his brother Leander J. Marshall made a trade with Hill to purchase the forty acres in controversy, and gave the witness the purchase money to go over to Hill’s home and pay him for the land and have the deed executed, which he did. Mr. John Rank, who had gone to Plymouth with him in a buggy, and is now dead, and Mr. Emery, a citizen of Plymouth, witnessed the deed, which was signed by Mr. Hill and his wife,
Mr. Hill, besides paying the taxes, exercised various other acts of ownership over the land in question, one of them being the sale of wood cut from the land in 1895' to the value of $170.40.
The petition and cross-petition of Charles R. Marshall were dismissed and costs adjudged in favor of Hill and the Lead Company and after the overruling of motions for a new trial and in arrest of judgment, the case is here by appeal.
I. The first question that confronts us relates to the effect of the judgment in the proceeding instituted by Mr. Hill in 1905, against the Marshall heirs, to quiet his title to the forty acres of land in controversy. That proceeding was founded upon the provisions of Sec. 650, R. S. 1899. The only service upon any of the defendants was by publication in a newspaper. None of them appeared; so that if this petition is to be given the effect of a petition for review under Sec. 777, R. S. 1899, the judgment does not stand in the way of the trial of the issues presented by it.
No statute of our State has been subjected to more or greater vicissitudes, both legislative and judicial, than that which relates to the quieting of titles. At the time of the bringing of the Hill suit, sections 647 and 6501 appeared together upon the statute book. The former had stood substantially the same for many years. It contained its own provisions for issuing and serving notice of proceedings under it, and provided, in substance, that any person in possession of real property claiming a freehold, or unexpired term of not less than ten years, might file a petition in the circuit court setting forth this estate, describing the premises,
In 1897 the following section, known in the revision of 189& as 650, was enacted: “Any persoh claim
This section alone does not indicate an intention to repeal section 647, in so far as that section authorizes the trying of titles and interests in land by such proceedings and against such parties as should be necessary to a full determination of the questions legitimately involved, nor remove a single safeguard with which it protected an unconscious defendant from the careless or fraudulent use of the drastic remedies it provided. Nor does the repealing 'section (3), providing that “all acts and parts of acts inconsistent herewith are hereby repealed” (Laws 1897, p. 74) indicate any such intention. It has, however, an “emergency clause” in the following, words: “This act being remedial in its character and taking the place of statutes which failed in their object, creates an emergency within- the meaning of the Constitution; therefore this act shall take effect and be in force from and after its passage.” [Id., Sec. 5.]
In Meriwether v. Love, 167 Mo. 514, 519,this court, referring to section 5- already quoted, assumed that “the law-makers unquestionably believed that section 2092 was inconsistent with the Act of 1897, and intended to repeal section 2092, and to provide a more complete and efficient and direct statutory method of determining and quieting land titles.” In this connection the court said: “In Huff v. Land Company, 157 Mo. l. c. 69, it was pointed out that the Act of 1897 was ap
The act under which the suit which it is sought to reopen was brought is equally silent upon this matter of pleading. It only requires that “the institution, prosecution, trial and determination of suits under this act shall conform in all respects to the provisions of the ‘Code of Civil Procedure’ now existing and in force in this State concerning actions affecting real estate.” [R. S. 1899, Sec. 651.] Under this we have held that, although it only permits the person desiring to take advantage of its provisions to “institute an action,” it may be used as a defense as well. [Summet v. Realty & Brokerage Co., 208 Mo. 501, 506 and 514; Lambert v. Railroad, 212 Mo. 692, 706.] The remedy is distinctly given, and the code affords the means to make it applicable in the particular case. So in this case the plaintiffs have in the form of a “petition,” as the statute requires, presented a complete defense to the absolute title set 'up in the petition of Mr. Hill to quiet his title; they have made the parties necessary to the trial of the contest to which they have been invited; they have given the notice required by Sec. 781, R. S. 1899; and have tried the issue so presented. Even if section 780 contemplates that all these things should be repeated in an answer, this petition has been treated as an answer for all the purposes of the proceeding. The arrangement of the parties plaintiff and defendant is of the
II. The title of Mr. Hill depends upon a patent issued directly to him March 21, 1896', which contains the following statement: “This patent is issued m lieu of one dated August 30,1872, in which the description of the land was erroneous, the record of which has been cancelled.” It is not contended that there was any other consideration for its issuance than the money that was paid upon the entry made in 1872, for which the patent was issued purporting to grant the southeast quarter of the northeast quarter of the same section. All the rights that he acquired by virtue of the payment of this money, and of the patent last mentioned, were transferred by him to Leander J. Marshall by the warranty deed dated June 19', 1874, which expressed a consideration of five hundred dollars, and was spread upon the deed records of St. Francois county May 18, 1875. The consideration for the later patent consisted solely of rights belonging to Marshall, so that under the well-settled principles of law applicable to such cases, Hill received and holds the legal title so granted in trust for Marshall, who became, in the manner stated, the equitable owner. [Groves’ Heirs v. Fulsome, 16 Mo. 543; James v. Groff, 157 Mo. 402; Davis v. Filer, 40 Mich. 310; Sensenderfer V. Kemp, 83 Mo. 581; Widdicombe v. Childers, 84 Mo. 382.]
The plaintiffs, his representatives in title, are therefore entitled to the relief asked to the extent of their present interests, unless it has been shown that
III. Another question preliminary to the consideration of the real merits of the controversy relates to the application of the Statute of Limitations., This pro • ceeding was, for all purposes connected with the application of that statute, beg’un with the filing of the petition on the 20th day of October, 1906, and there does not seem to be any doubt that during the year 1895', and again in 1896, Mr. Hill was selling timber which was being cut and taken from this land. Whether the acts done on the land in connection with this transaction constituted adverse possession as to these plaintiffs, and if so, whether such possession was continuous up to the time this proceeding was begun, are questions which, in the view we take, are not necessary to be decided. The plaintiffs rest their claim for relief upon the theory that by the issue of the patent of March 21, 1898, the legal title to these lands, then first emanating from the government, inured in equity to them, and that the primary object of this proceeding is to ripen that equity into a legal title; and that the State Statute of Limitations had no bearing upon the rights of the parties until the issuance of the patent which divested the title of the United States. The plaintiffs seem to be right in this contention. There is no difference between the question so stated, and that involved in the decision of the Supreme Court of the United States in Gibson v. Chouteau, 13 Wall. 92, which has been consistently followed by this court. [Smith v. McCorkle, 105 Mo. 135; Cummings v. Powell, 97 Mo. 524; Hammond v. Johnston, 93 Mo. 198; Buren v. Buren, 79 Mo. 538; McIlhinney v. Ficke, 61 Mo. 329.] It is not necessary for us to speculate as to whether or not there may be cases in which the Statute of Limitations will take hold upon the right of possession emanating from the government while it retains the
IY. Defendant Hill, proceeding upon the assumption that this is a suit to enforce the specific performance of a contract between himself and Leander J. Marshall, made in 1874, and for the reformation of the several deeds, as well as of the patent, that grew out of it, now urges that the delay of the plaintiffs in seeking a declaration of the trust resulting from the patent of 1898, is to be measured by these earlier transactions and constitutes such laches as to preclude the relief they now seek. In this case they ignore the position of plaintiffs that their equities arise from the transfer to Leander J. Marshall, by the warranty deed of 1874, of the equities arising out of the original entry and erroneous patent. That patent needs' no reformation, because it had borne its fruit — the legal title. The deed needs no reformation because it has borne its fruit, the trust they are now seeking to enforce. If laches is to be imputed it could find in this case no firmer foundation upon which to rest than his own failure, during the twenty years that succeeded the placing of the Marshall deed upon the records, to take notice of its existence. Even when, on February 25, 1895, the General Land Office distinctly called upon
Our Code of Civil Procedure permits but one form of action for the enforcement or protection of private rights and the redress and prevention of private wrongs, and our Statute of Limitations applies alike to all, whether théy were before the enactment of the code called legal or equitable. These statutes establish the only limitation, founded upon time alone, of the right to bring an action of either variety. In the words of Judge Nortoni in Blackford v. Construction Co., 132 Mo. App. 157, 164, “It is certain that mere lapse of time alone is entirely without influence in those eases where the Statute of Limitations does not obtain.” It is, however, an element and an important one in the defense of laches which still remains, a creation of equity designed to meet those cases in which the duty to move promptly in the assertion of a right arises out of the corresponding right of the adverse party to be protected from some injury that would result from delay. These respective rights,
There is nothing in this that tends to support the claim that the increase in value of real property which arises from the development of its surroundings, the discovery of natural resources, or from any other cause unconnected with the labor or expenditure of others, is not, in equity as well as at law, the legitimate property of the true owner. He may let it lie idle if he so chooses without subjecting it to appropriation by a wrongdoer. He is only required to act when he sees another expending his own labor or means in the enhancement of its value, under such circumstances, that it would be inequitable that he should remain silent and claim the result. The other party may, however, and sometimes does, stand solely upon the strength of his own claim. Asking no terms, and
All the parties to this transaction are, and have been, during the entire period of the growth of the controversy, nonresidents of this State. For seventeen years from the time of Hill’s entry they all seemed oblivious to the fact that they had any interest in the locality in question until lead was discovered in the Plat River district. Then Mr. Hill sat up and took notice.
In 1872 Mr. Hill was acquainted with Mr. Austin Marshall, a brother of Leander J. Marshall and son of Sarah S. Marshall, through whom these plaintiffs claim, and he says that Austin Marshall was with him at the Ironton Land Office when he made this entry No. 43,783. He died June 10, 1874, and on the 19th .of the same month the warranty deed was made by Hill and wife to Leander J. Marshall, who conveyed it in the following year to Mrs. Marshall. In the absence of anything in the nature of a full and frank statement explaining these transactions otherwise, it is but fair to assume that they honestly and fairly attempted to consummate the intention of the parties by putting the legal title in the person for whom the entry was made. Had the land been properly described in the first patent, the legal title would have been vested in
Mr. Hill seems to have moved promptly following the discovery of lead. On December 20, 1889, he paid $38.87, taxes for the sixteen preceding years. He continued afterwards to pay them, much more than reimbursing himself by wood sold from the land. It is fair to assume that on June 23, 1890, he had forgotten to which Marshall he conveyed the land in 1874, and sent his lawyer for a quitclaim deed to Charles R., who had never, up to that time, had any connection with, the title. In 1894 he began proceedings to procure a correct patent. When this could no longer be concealed from the Marshalls he inaugurated the open fight by charging that their deed had been obtained from him by fraud. Having obtained the patent he challenged these plaintiffs to a legal contest to try the title and having obtained judgment he was able to negotiate the option under which the Lead Company claims. We have gone so fully into these facts merely for the suggestion they contain that from the time Mr. Hill became aware of the desirable quality of these lands he assumed a hostile attitude toward those who claim under his deed of 1874, and when he had strengthened his position challenged them to the contest they are now maintaining against him. We fail to see in his conduct any evidence of confidence in. or dependence upon them that would make it inequitable for them to choose their own time and opportunity to assert their rights. For having done this they cannot now be charged with laches.
V. We do not impute to Mr. Hill any willful misstatement, in holding that the evidence of fraud or mistake in the procurement of the deed from himself
VI. The statute under which this review is had provides (R. S. 1899, Sec. 779) that “if such petition for review be not filed within three years after such final judgment, is rendered, the same shall stand absolute,” and (Id., Sec. 784) that “no sale or conveyance of property fcr the satisfaction of any judgment, regularly made, shall be affected or prejudiced by the setting aside of any judgment on the appearance of a defendant, as hereinbefore provided, if the property shall be in the hands of innocent purchasers.” In this case Mr. Hill is seized of the legal title to the lands
The Lead Company had constructive notice of all matters of public record in its own chain of title, including such collateral matters as these records pointed out. In this case the chain of title consists solely of the patent of 1898 and their own option. It is true the patent points out that it is made “in lieu of one dated August 30, 1872, in which the description of the land was erroneous, the record of which has been cancelled.” This notation does not tend to direct attention to the fact that any chain adverse to the pat-entee existed. Nor do we think that a purchaser from the patentee or those claiming under him, who has had no connection with the proceedings by which the patent was obtained, is, by his purchase alone chargeable with notice of such proceedings.
One may, however, have actual notice of an equitable claim affecting the legal title he is about to purchase, and in such case he completes the transaction at his own risk. He has actual notice when he knows of the existence of the adverse claim of title, or is conscious of having the means of knowledge, though he may not use them. [Sensenderfer v. Kemp, 83 Mo. 581, 588, 589.] In this case the vendor of the Lead Company stated in his petition to quiet his title that he was informed and believed that the Marshalls claimed
Under the circumstances we do not think it will be inequitable to permit the Lead Company to settle with the true owners of the land upon the terms of their contract with Hill. It will only be applying the same equitable principle, to a less marked extent, that was applied by us in Bucher v. Hohl, 199 Mo. 320. The judgment of the circuit court for St. Francois county is reversed and the cause remanded to that court with directions to enter its judgment in accordance with the principles herein stated, so that the leg*al title to the land in controversy will be vested in the parties hereto ns tenants in common in the following proportions, that is to say: to plaintiff Winifred Marshall Dittmar two-fifths; plaintiff Mrs. W. S. Marshall one-
The foregoing opinion of BROWN, C., is adopted as the opinion of the court.
Concurrence Opinion
CONCURRING OPINION.
I concur fully to everything contained in this opinion, except what is said in regard to the rig’ht' of the Doe Run Lead Company to purchase the land in controversy from the appellants for the sum and upon the conditions ’stated in the optional contract to purchase the same by it from respondent without the appellants’ wish voluntarily to so do, and as to that I dissent.
Since the transfer of this cause to the Court in Baüc, and after submission, the parties, both appellants and respondents, have filed a stipulation as follows:
“It is stipulated and agreed between counsel for appellants and counsel for respondents that whereas*33 all of the interest'of the parties plaintiff and Charles R. Marshall defendant, have, prior to the decree in Division No. 1 of this conrt, been transferred by deed to Winifred Marshall Jackson (formerly Winifred Marshall Dittmar, she having married Jackson since the trial below), the decree may be amended so as vest the interest to the land in controversy herein in Winifred Marshall Jackson, five-sixths, and Norman N. Hill, Jr., one-sixth, and that all of said interests shall vest in the Doe Rnn Lead Company upon the payment by said Doe Run Lead Company of fifteen thousand dollars, twenty-five hundred dollars of which to be paid to Norman N. Hill, Jr., and twelve thousand five hundred dollars to Winifred Marshall Jackson, or to their respective attorneys of record; and, whereas, the Doe Run Lead Company has already deposited with the clerk of the circuit court of St. Francois county the sum of fifteen thousand dollars in cash, it is stipulated and agreed between counsel that a decree may be entered for the payment of the same to the attorneys of record for Winifred Marshall Jackson and Norman N. Hill, Jr., respectively, in above proportions, and that all the title and interest of the parties to this suit in the land in controversy shall, upon said payment, be vested in the Doe Run Lead Company. The costs of the suit to be adjudged against the Doe Run Lead Company.”
Whereupon it is ordered and adjudged ■ by the court, sitting in Banc as aforesaid, that the decree heretofore made and entered in Division Number One be so changed and modified that the said cause be, and it is, remanded to the circuit court for St. Francois county with directions to enter a final decree therein in all respects in accordance with the terms of said stipulation, and that the mandate of this court in accordance herewith issue immediately.
