Miller v. CorpmanMiller v. Corpman
2. FAILURE TO RULE: Objection by Respondent. The hearing by the trial court of testimony offered by appellants, over objection of respondent and subject to a subsequent ruling thereon, and failure thereafter to make any definite ruling upon such objections, is a procedure often condemned; but it is a ruling of which respondent cannot complain on appeal.
3. TAX DEED: Wrong Description: Last Above Tract. Where the sheriff‘s deed, made in pursuance to a judgment for taxes, recited he exposed for sale “the S. W. 1/4 of S. E. 1/4 of Section 28, in township 28, range 10, and the S. E. 1/4 of Section 36, in township 24, range 12; also . . . all of Section 28, in township 27, range 8,” and then recited that “the said last above described tract was stricken off and sold,” etc., his deed did not convey to the purchaser the tract first described, namely, “the southwest quarter of the southeast quarter of Section 28, in Township 28 and Range 10, and the grantee of such purchaser has no title, by reason of said deed, to said forty acres.
5. DOWER: Limitations: Conveyance: Inheritance. Where the owner of land died in 1870 and his widow conveyed it to their daughter and only child by quit-claim deed in 1897, and said daughter died in 1914 leaving the plaintiffs as her only heirs, it is immaterial whether the widow‘s dower was barred by limitations, since, if she had no dower, the plaintiffs took by inheritance.
6. LIMITATIONS: Finding of Trial Court. A finding by the trial court, sitting as a jury, that defendant is not entitled to recover either under the ten-year or the thirty-year Statute of Limitations, both pleaded as defenses in the action at law to determine the title, if supported by substantial evidence, is conclusive on appeal.
7. POWER OF ATTORNEY: Unrecorded. A deed purporting to have been executed by the attorney-in-fact of the owner of land conveys nothing, where his power of attorney was not recorded, is not offered in evidence and is not shown to have been legally executed.
8. INCOMPETENT WITNESS: Power of Attorney: Deceased Maker. The grantee of a deed purporting to have been made by the attorney-in-fact of the owner of land is not a competent witness of any alleged conversation with said owner who is deceased at the time of the trial.
9. ANCIENT DOCUMENT: Power of Attorney: Recitals in Deed. Where the trial occurred in 1917, a deed purporting to have been executed in 1894 by the attorney-in-fact of the owner of land, now deceased, is not admissible in evidence as an ancient document. No power of attorney having been recorded, or offered in evidence or shown to exist, it cannot be presumed that recitals contained in the deed of the alleged attorney-in-fact as to powers conferred upon him are true.
10. TENANTS IN COMMON: Paying Taxes. The grantees by quit-claim deed of an undivided half interest of the grantor in land, who take possession, do so as tenants in common with the heirs of said grantor, after her death, and hold and use the same and pay taxes thereon for their use and benefit as well as their own, unless said grantees take and hold possession under such circumstances as amount to ouster of said heirs.
Appeal from Mississippi Circuit Court.—Hon. Frank Kelly, Judge.
AFFIRMED.
(1) If Mrs. Burrus ever had a dower interest in this land her right was barred before she deeded the same to plaintiffs under her quit-claim deed. Jodd v. Mehrtens, 262 Mo. 391. There is no evidence that she ever had a dower assigned to her, and her right to have the same done was barred by the statute when she made the quit-claim deed to plaintiffs.
RAILEY, C.—On February 2, 1915, plaintiffs Anna V. Miller and Susie Jeffers filed, in the Circuit Court of Stoddard County, Missouri, a petition against appellants H. C. Corpman and Maggie Corpman, to ascertain and determine the respective titles, interests, etc., of said parties in and to the southwest quarter of the southeast quarter of Section 28, in Township 28 of Range 10 east, located in Stoddard County. On the application of appellants, the venue was changed, and the case tried before the court without a jury, in Mississippi County.
Defendants answered, and admitted therein that they claimed to be the owners in fee simple of the real estate aforesaid. They deny every other allegation in plaintiffs’ petition. They further aver that in 1887, H. C. Corpman purchased all the outstanding title, if any they had, of S. P. Jeffers and Anna C. Jeffers, father and mother of plaintiffs, Annie V. Miller and Susie Jeffers, both of whom are dead; that said S. P. Jeffers and wife executed and delivered to Walter Phelan a power of attorney vesting in him authority to convey the land aforesaid, and that, pursuant to said power vested in him, said Walter Phelan sold and conveyed said land to defendant H. C. Corpman. They further aver that they have acquired title to said real estate by adverse possession under the ten- and thirty-year Statute of Limitations.
The reply is a general denial of the new matter contained in said answer.
On October 22, 1917, the court found that plaintiffs are each entitled to an undivided one-fourth interest in said land, and that the defendants are jointly entitled to an undivided one-half interest therein. Judgment was entered in accordance with the above findings. Motions for a new trial and in arrest of judgment were filed by defendants, overruled, and the cause duly appealed by them to this court.
Clara B. Burrus testified, in substance, that she was the grandmother of plaintiffs; that the mother of plaintiffs was Anna C. Jeffers; that said Anna C. Jeffers was the daughter of witness by Cornelius Alonzo Kitchen; that Mrs. Anna C. Jeffers was the only child of that marriage; that she (witness) executed the quit-claim deed to Anna V. Miller and Susie Jeffers, who are sisters; that both plaintiffs are daughters of said Anna C. Jeffers; that Price Jeffers was the husband of said Anna C. Jeffers; that the latter died in 1901, and Price Jeffers died in April, 1914; that the husband of witness owned lands in Stoddard, Butler and Dunklin counties, in Missouri; that she could not say her husband was ever in possession of the land in question; that her husband, Alonzo Kitchen, died in the Spring of 1870; that she had no recollection of his claiming the above land, and had no knowledge of his paying taxes thereon.
Plaintiffs then offered in evidence a quit-claim deed from Clara B. Burrus, to Anna V. Miller and Susie Jeffers, dated April 8, 1915. Appellants have not set out any part of said deed in the abstract, but objected to the introduction of same on the alleged ground that the grantor had no title. As the objection to the admission of said deed was overruled, we presume it covered the land in question.
Defendants offered in evidence a sheriff‘s tax deed to C. E. Stokes, dated December 6, 1879, conveying the land in question, and which will be referred to later.
In order to avoid repetition, the foregoing and other testimony offered by defendants will be considered in the opinion.
The case was submitted to this court upon the abstract of record, and briefs of appellants, no brief having been filed here in behalf of respondents.
I. This case having been tried by the court without a jury, its finding of facts, if sustained by substantial evidence, is conclusive in this court. [Lee v. Conran, 213 Mo. l. c. 412; Minor v. Burton, 228 Mo. 558; Slicer v. Owens, 241 Mo. l. c. 323; Abeles v. Pillman, 261 Mo. l. c. 376; Buford v. Moore, 177 S. W. l. c. 872; Truitt v. Bender, 193 S. W. l. c. 839; Coulson v. La Plant, 196 S. W. 1144; Roloson v. Riggs, 274 Mo. l. c. 528; Case v. Sipes, 280 Mo. l. c. 115, 217 S. W. 306, and cases cited; Christine v. Luyties, 280 Mo. l. c. 426, 217 S. W. 55; Cowan v. Young, 282 Mo. l. c. 45, 220 S. W. l. c. 872; Bingham v. Edmonds, 210 S. W. 885; Nevins v. Gilliland, 290 Mo. l. c. 299-300, 234 S. W. l. c. 819; Kline Cloak & Suit Co. v. Morris, 240 S. W. l. c. 100; Barr v. Stone, 242 S. W. l. c. 663; Zeitinger v. Hargadine-McKittrick Dry Goods Co., 250 S. W. l. c. 917.]
It was agreed at the trial that the title to the land in question passed out of the United States Government, and into the State of Missouri, on March 16, 1869, and that C. Alonzo Kitchen was the common source of title, and that it was conveyed to him under the above name on September 21, 1869. It was admitted that Mrs. Anna C. Jeffers was the only child of C. Alonzo Kitchen, at the time of the pendency of the tax suit, which resulted in the tax deed, offered in evidence by defendants, to Charles E. Stokes. It was shown by Mrs. Burrus, the mother of Anna C. Jeffers, that the latter was the only child of Cornelius Alonzo Kitchen, and that the latter died in the Spring of 1870. The trial court was, therefore, justified in finding, from the undisputed facts, that on the death of C. Alonzo Kitchen, in 1870, Anna C. Jeffers, his daughter, became the legal owner of the real estate in question, subject to the dower interest of her mother, Clara B. Burrus, therein. These plaintiffs were the only children of Anna C. Jeffers and Price Jeffers, her husband. The latter died in April, 1914, and the former died in 1901. Clara B. Burrus executed a quit-claim deed to plaintiffs on April 8, 1915, and thereby conveyed to them her dower interest in said land, if it had not become barred by limitation. It was shown by defendants that Anna C. Jeffers and
It is, therefore, manifest from the foregoing that plaintiffs are the legal owners of the undivided one-half of the land in question, unless the defendants and their predecessors in title, by deed or otherwise, acquired from said Anna C. Jeffers the undivided half interest which she did not convey to Phelan in the quit-claim deed aforesaid.
II. It is claimed that whatever title Anna C. Jeffers acquired to the land in controversy by inheritance through her father, C. Alonzo Kitchen, who died in 1870, was lost to her by reason of the sheriff‘s tax deed read in evidence by defendants. Said deed recites that at the March term, 1880, of the Stoddard Circuit Court, the sheriff exposed to sale at public auction, for ready money, “the above described real estate, and Charles E. Stokes being the highest bidder . . . for the following described real estate, viz:
“The Southwest one-half of Southeast quarter of Section 28, in township 28, range 10, and the Southeast quarter of Section 36, in township 24, range 12, for the sum of two and 35/100 dollars, also part of Northeast fractional quarter part of Southwest fractional quarter and Northwest quarter; all of Section 28, in township 27, range 8, for the sum of Five and 06/100 dollars. The said last above described tract was stricken off and sold to the said Charles E. Stokes for the sum bid therefor by him as above set forth.
“Now, therefore, in consideration of the premises, and of the sum of seven and 35/100 dollars, to me, the said sheriff, in hand paid by the said Charles E. Stokes, the receipt whereof I do hereby acknowledge, and by virtue of the authority in me vested by law, I, J. G. Lewis, sheriff as aforesaid, do hereby assign, transfer and con-
At the conclusion of the deed, the abstract contains the following: “Here describe each tract sold and price of same.”
The trial court properly found from the evidence that the tax deed aforesaid, as shown by the italicised portion supra, does not purport to convey to Charles E. Stokes the land in question. The ruling of the court in respect to this matter is shown by Instruction I, given in behalf of plaintiffs, which reads as follows:
“The sheriff‘s deed shown in evidence was insufficient to divest title out of Anna C. Kitchen, the mother of these plaintiffs, for the reason that it does not mention or describe the lands in suit as having been conveyed thereby.”
The ruling of the court in respect to foregoing matter is sustained by the following authorities:
The last cited case is directly in point and clearly sustains the trial court in respect to above ruling.
III. It is claimed by appellants, as an abstract proposition of law, that a tax deed, although void, creates color of title and we are cited in support of this suggestion to Dunnington v. Hudson, 217 Mo. 93. On page 100 of the case just cited, the court quoted with approval what was said in Hickman v. Link, 97 Mo. l. c. 488, as follows:
“Generally, it may be said that any writing which purports to convey the title to land by appropriate words of transfer, and describes the land, is color of title, though the writing is invalid, actually void, and conveys no title.” (Italics ours.)
IV. It is asserted that if Mrs. Burrus ever had any dower in the land, her right was barred before she deeded same to plaintiffs under her quit-claim deed. As C. Alonzo Kitchen was conceded to be the common source of title and died in 1870, the owner of the land in controversy, his wife, Mrs. Burrus, must have had a dower interest therein. The statute barring dower in ten years was passed in 1887. Mrs. Burrus therefore had a dower interest in said land in 1897. As the plaintiffs are claiming title to the land by inheritance from their mother, Anna C. Jeffers, it is immaterial whether the dower interest of Mrs. Burrus was barred when she quit-claimed the same to plaintiffs on April 8, 1915. If she had an interest it passed by the deed. On the other hand, if her dower interest was barred, it is out of the case.
V. It is contended that defendants acquired title to the land in question under the ten-year Statute of Limitations. The trial court, after hearing the evidence, found this issue in favor of respondents, as shown by instruction numbered six, given on behalf of plaintiffs, which reads as follows:
“At the close of the testimony the court declares the law to be that under all of the evidence adduced in this cause the defendants are not entitled to recover on or under the ten-year Statute of Limitations.”
The ten-year statute was relied on as an affirmative defense. It was the peculiar province of the trial court to pass upon same, as indicated in paragraph one of this opinion. The finding of the court on the facts presented in this record, is well sustained in Buford v. Moore, 177 S. W. l. c. 869, and following, and cases cited.
VI. The court is charged with error in refusing to hold that defendants had acquired title under their
“At the close of the testimony the court declares the law to be that under all of the evidence adduced in this cause the defendants are not entitled to recover on or under the thirty-year Statute of Limitations.”
We are of the opinion that the finding of facts based on the evidence before us is correct, and is within our ruling as declared in Hunter v. Moore, 202 S. W. 544, and Buford v. Moore, 177 S. W. l. c. 869, and following.
VII. Appellants claim to own the undivided half interest in the land aforesaid, awarded by the trial court to plaintiffs, under and by virtue of a warranty deed dated November 27, 1894, purporting to have been executed by Walter Phelan, as alleged attorney in fact of Anna C. Jeffers, and S. P. Jeffers, her husband. No power of attorney was shown to have been legally executed by Anna C. Jeffers, nor was any such instrument offered in evidence. The defendant Corpman was an incompetent witness as to any alleged conversations with Mrs. Anna C. Jeffers, who was dead at the time of trial. [
VIII. It was properly held by the trial court that when Walter Phelan received from Anna C. Jeffers and husband a quit-claim deed on July 31, 1894, for the undivided one-half interest in the land aforesaid, he thereby became a tenant in common with said Anna C. Jeffers to the forty acres in controversy. When Walter Phelan conveyed his undivided one-half interest in said land to defendant Corpman on November 27, 1894, it made said Corpman a tenant in common with said Anna C. Jeffers, as to the forty acres in question. The court accordingly, in behalf of plaintiffs, gave instruction numbered four, which reads as follows:
“The court declares the law to be that under the Walter Phelan deed shown in evidence defendants ac-
We are of the opinion that the court not only properly declared the law in respect to the above instruction (except that the parties should have been designated as tenants in common), but properly found from the evidence that defendants never acquired, by adverse possession or limitation, title to any part of the land in controversy.
IX. After carefully reading the record, and appellants’ brief, we have reached the conclusion that the trial court committed no error of which appellants can legally complain. We hold that the judgment below, as to both the law and facts, is supported by substantial evidence, and is accordingly affirmed. Higbee, C., concurs.
PER CURIAM:—The foregoing opinion of RAILEY, C., is adopted as the opinion of the court. All of the judges concur.