McVey v. Carr, 159 Mo. 648

159 Mo. 648 | Mo. | 1901

BURGESS, J.

This is ejectment for the possession of the southwest quarter of the southeast quarter, and the southeast quarter of the southwest quarter of section twenty-six, town-ship fifty-seven of range twenty-three, in Livingston county.

John Graves is the common source of title. The tract according to the Government survey contains 88.90 acres. John Graves sold this tract in three parcels. He sold the east half to Eobert M. Graham, on the twenty-third day of March, 1869, and the northwest quarter of said tract he sold to the plaintiff MeVey March 23, 1869, and on the ninth day of January, 1871, he sold the southwest quarter of said tract to James H. Eyan. In the deed to Eyan the land conveyed thereby is described as the undivided one-fourth. By different conveyances and descriptions of the land the parcels conveyed by John Graves to Graham -and Eyan passed to William Hamilton and Erancis Jacquett, and was sold under a judgment against them for taxes on September 25, 1882, at which sale one Eobert S. Moore became the purchaser, but it doesn’t appear that he ever received the sheriff’s deed therefor. On the thirtieth day of September, 1896, Eobert S. Moore conveyed the land by quitclaim deed for the expressed consideration of four hundred dollars, to the defendant Bentley B. Carr. The deed was made in correction of a deed, made by Moore to Oarr, on the nineteenth day of June, 1891, in which the land was incorrectly described, about which time Carr entered into the possession of the land.

Plaintiff read in evidence a quitclaim deed from John W. Graves and others to him, dated April 1, 1895, conveying the land in litigation to him, and also a quitclaim deed to the same land from Elavius J. Williams and others to him, dated January 1. The grantors in these two deeds are heirs of John Graves, deceased.-

Plaintiff introduced evidence which tended to show that when he got the deed from John Graves in 1869, he immediately took possession of the land, and has been in the possession ever since paying the taxes thereon. That he used the land and the timber on it and also used it several years as pasture, and fenced it in the spring of 1890 or 1891 in April or May. That he owned other -land south of the land in contest, in section thirty-five, which is inclosed; it is in two pieces. That he had the land in contest fenced and used it as pasture. That it was inclosed for about seven years. That he had possession of the land until the defendant took possession of it about three years ago, sometime before the commencement of this suit. That plaintiff had a house built on the land and a man lived in it as his tenant over a year, and cultivated part of it. The house was built in 1891 or 1892. That the defendant is now in the possession of the land. That the plaintiff had the land inclosed and a man living on it four years before Carr took possession.

The evidence also tended to show that defendant entered into possession of the land in 1891, under his purchase from Robert-S. Moore, who claimed.to have purchased it at sheriff’s sale under a judgment against it for taxes. That Robert S. Moore never had possession of the land, never exercised any acts of ownership over it from the time of his purchase until he conveyed it to appellant in 1891, then he did not describe the land in contest in the deed; and on the twenty-eighth day of September, 1896, he executed a quitclaim to defendant, correcting the description of the land as described in the former deed. That defendant took possession in 1891. That said Moore sold a few loads of wood twelve or thirteen years ago off of some land, but he did not know whether or not it came off the land in controversy.

The record clearly shows that defendant acquired no title to the land by reason of his purchase from Moore, for the reason that the sheriff’s deed under which Moore claimed title was never delivered to him, which was essential to the transfer of title. This was a condition precedent to the effectiveness of the deed. [Ebersole v. Rankin, 102 Mo. 488; Crowder v. Searcy, 103 Mo. 97; Sneathen v. Sneathen, 101 Mo. 201; Allen v. DeGroodt, 105 Mo. 442; Hall v. Hall, 107 Mo. 101; Cravens v. Rossiter, 116 Mo. 338; Rumsey v. Otis, 133 Mo. 85.] And as it was not delivered, it was of no more effect than if not signed. [Turner v. Carpenter, 83 Mo. 333; Hammerslough v. Cheatham, 84 Mo. 13.] Moreover, the judgment for taxes under which the land was sold at which sale Moore became the purchaser, was absolutely void for the want of jurisdiction in the justice over the subject-matter of controversy, and the deed to Moore even if it was delivered, passed no title to him, and of course he could convey none. [State ex rel. Gordon v. Hopkins, 87 Mo. 519.]

But it is equally as clear that plaintiff did not acquire the legal title to the land by reason of the deed from Graves and wife to him of date March 23, 1869, and unless defendant was a mere trespasser (Bledsoe v. Simms, 53 Mo. 305; Spurlock v. Dougherty, 81 Mo. 171; Prior v. Scott, 87 Mo. 303) or plaintiff acquired the title through the deeds to him from the heirs of his grantor Graves before the commencement of this suit in 1895, or he had been in the visible, notorious, continued and actual possession of the land claiming it as his own for ten consecutive years before that time, he was not entitled to recover in this action.

Defendant went into the possession in 1894, under color of title. He was not therefore a mere intruder or trespasser. Nor was plaintiffs possession visible, notorious, continuous and actual for the period of ten consecutive years, which was absolutely necessary in order to give him title by the statute of limitations, and to entitle him, under the facts disclosed by the record, to recover in this action. -Pasturing the land, and the payment of taxes upon it did not constitute such possession. [Carter v. Hornback, 139 Mo. 238; Pharis v. Jones, 122 Mo. 125.]

With respect to plaintiffs claim to the legal title it appears that John Graves under whom he claims was the owner of section twenty-six, township fifty-seven, rang§ twenty-three, which, according to the Government survey, contained 88.90 acres; that Graves sold this land in three different parcels. The-east half of the tract he sold to Robert M. Graham, on the twent^third day of March, 1869, and the northwest-quarter of said tract containing 22.22 acres, he sold to plaintiff MeVey on the same day, March 28, 1869, and the southwest quarter of said 88.90 acre tract, the land in contest in this suit, he sold to James H. Ryan, January 9, 1811. While the land is described in the deed from Graves to Ryan as the undivided one-fourth, as Graves had theretofore sold the other three-fourths, the remaining one-fourth must have been left unsold at the time of the execution of the deed by Graves to Ryan. It thus appears that Graves had disposed of -all the land that he acquired by his purchase from the original patentee, Tuttle, prior -to his death, and therefore no title to this land passed to his heirs at his demise, or by their deeds to plaintiff. It follows, that as plaintiff had no paper title to the land, and had not acquired the title by the statute of limitations prior to defendant’s entry into' its possession, he was not entitled to recover judgment for its possession.

Ror these considerations we reverse the judgment and remand the cause.

Sherwood, P. J., and Gantt, J., concur.