Riley v. O'Kelly, 250 Mo. 647

Riley v. O'Kelly

250 Mo. 647 | Mo. | 1913

OPINION.

BOND, J.

(after stating the facts as above).

Common Source of Title. I. The learned counsel for appellants concede in their brief that the title to the land in suit was well vested in Pemiscot county. They are justified in this admission because the record shows this was accomplished as provided by law and that a formal patent, regular m all respects from the State to the county was introduced in evidence. But they insist that there is no adequate proof in the record that the county ever parted with its title to John Cormack or John Q. Cormack, the ancestor under whom the plaintiffs claim. And they further insist that the record does not show that their clients claim title under said Cormack or assumed that, he had title to the land in question.

We will dispose of these contentions in the inverse order, for if it should appear that the parties to this case as they stand upon the present appeal, claimed under a common ancestor or assumed title to be well vested in a common ancestor, then it will be wholly unnecessary to inquire as to the validity of the title of such ancestor. For the only question will be upon whom that title was devolved.

The rule is settled in this State that where the adversary parties in actions to quiet title as- well as in *658actions of ejectment hinge their claims of title „to the property in controversy upon that of a common grantor or ancestor, then the court and jury have but one issue to solve, to-wit, which of the adversary parties acquired the title under which they respectively claim? And in determining’ this issue, it is sufficient if the record shows that the contending parties proved, admitted or assumed a common source of title. [Harrison Machine Works v. Bowers, 200 Mo. l. c. 235; Charles v. White, 214 Mo. l. c. 211, 212; Maynor v. Land & Timber Co., 236 Mo. l. c. 728; Toler v. Edwards, 249 Mo. 152.]

In the case at bar, the defendants offered evidence of no title, paper or possessory, to the land in dispute other than what purported to be a deed to one of them (O’Kelly) dated the 26th of January, 1909, signed by one John J. Cormack; and in connection with the offer of this deed counsel for defendants stated that he did so upon the theory that it had not been shown by the evidence that the purported grantor was not an heir of the John Q. Cormack “who entered this land, and has been dead for forty years.” As this.was the sole evidence of the title of the appealing defendants, and as the concomitant admission made by their counsel at the time it was proffered, shows that its purpose was to connect the claim of thesé defendants with John Q. Cormack, the conclusion is unavoidable that unless they could thereby deralgn title from John Q. Cormack, they had none whatever to rely on in this case. This deed was excluded from the evidence, but its proffer and the reasons given therefor demonstrate that the title of John Q. Cormack as a common ancestor was assumed by the appealing defendants. But they did not stop there, J)or the record shows that they endeavored by instruction B, refused by the court, to submit that issue to the jury. The instruction is, to-wit:

“B. The court instructs the jury that one John *659Gormaclc obtained title to the land in controversy from Pemiscot county, Missouri, in the year 1858, and that the deed offered in evidence by defendant H. H. O’Kelly to himself by John Cormaek makes a prima facie case that said defendant is the owner of said land, and places the burden of disproving said prima facie case upon the other defendants and plaintiffs; and Unless such prima-facie case is overcome to your reasonable satisfaction by the preponderance of greater weight of evidence your verdict should be for the defendant H. H. 0Kelly.” (Italics ours). And sought to submit the same questions by instructions D and C framed upon the theory that Carleton’s Abstracts disclosed the title to the land in controversy to have vested in the year 1858 in John Cormaek, and that the deed proffered by them “was prima facie evidence that said land title passed to said defendant H. H. 0 Kelly.”

It is evident from what has been said that the appealing defendants not only assumed but conceded on the trial of this case that all the title they had depended upon the acquisition of the title of the John Cormaek who died over forty years before the signing of the deed, which they offered to sustain their claims, by a person whom the evidence did not connect with the original purchaser from the county either as heir, devisee or grantee.

We, therefore, rule that the doctrine of common ancestor applied to the appealing defendants.

Demurrer: Waiver. II. The learned counsel for defendants argue that the instructions requested by them upon the theory that the title to the land in dispute, was well vested in the John Q. Cormaek under whom plaintiffs claim were not intended to be so understood but were offered after the court had erroneously overruled the demurrer to the evidence at the close of plaintiffs’ case, wherefore such *660instructions were framed to make the best they could out of the theory of the court that the recitals of Carleton’s Abstracts were sufficient to show that the John Q. Cormack (or, as some of the witnesses called the same person, John McCormack) had acquired the title of the county to the land in dispute. But this contention of the counsel overlooks the well settled law, that if they intended to rely upon the infirmities of the plaintiffs’ case, it was their duty to stand upon their demurrer to the eviden.ee interposed at the close of plaintiffs’ testimony. For if they failed to do that and subsequently introduced testimony on their own behalf, that amounted to a waiver of their previous demurrer to the evidence. [Hilz v. Railroad, 101 Mo. l. c. 42; Frye v. Railroad, 200 Mo. 377; Kirkpatrick v. Pease, 202 Mo. 471; Crawford v. Stockyards Co., 215 Mo. 394.] And while it would not deprive them of their subsequent right to demur to the evidence at the close of the entire testimony for both parties, it did make it the duty of the court in the consideration of their last demurrer to give the plaintiffs the benefit and aid of any and all testimony and proceedings had in the case, and made it the duty of the court to overrule the second demurrer to the evidence, if from a view of the entire testimony and proceedings and all and every reasonable inference to be drawn therefrom the jury would be entitled to find for the plaintiffs. [Knorpp v. Wagner, 195 Mo. 637; Charlton v. Railroad, 200 Mo. 413; Von Trebra v. Gas Light Co., 209 Mo. 648; Phelan v. Paving Co., 115 Mo. App. 423.]

In this case the appealing defendants did not stand upon their demurrer interposed at the close of plaintiffs ’ case but proceeded to put in testimony upon which their claims rested. As has been shown, the only conclusion which could have been drawn at the close of the entire case was that the adversary parties were contending only for the title of John Q. Cormack or John McCormack, as all of the witnesses said the same *661man was called. The record shows by undisputed testimony that none of the defendants got any part of the title of this man, and that the title of his heirs and distributees was acquired by the two plaintiffs. The court therefore did not err in overruling their demurrer interposed by the appealing defendants at the close of the entire ease. And whether or not he might have erred in overruling the demurrer interposed at the end of plaintiffs’ case is not a question for review since appealing defendants did not stand on that demurrer.

Carleton's Abstract. III. This renders it wholly unnecessary to pass on the ruling of the court in the admission of the recitals from Carleton’s Abstracts or to rule on the admissibility in evidence of the original books kept by the land register a,nd receiver of public moneys in Pemiscot county which were excluded by the court.

The question as to the admissibility of these books is discussed in the briefs of the respective counsel, and attention is directed to the fact of the practical necessity for the keeping of such books (although not specifically required by the statute) in order that 'the registers of land should retain knowledge of locations in counties where, as in Pemiscot, most of its territory is swamp or overflowed lands, and it is further suggested, that in some rulings heretofore made as to the admissibility of such books or their contents in evidence, the mind of the court was not directed to the statute, set out' in the statement, requiring the Governor after November 4, 1857, to transmit the certificates issued by such officers to the counties who thereafter were empowered to patent swamp and overflowed lands. And, hence, parties desiring the evidence to be afforded by such, certificates could not after that date obtain them in Jefferson City; and where they were burned after being sent to the counties (as in some eases) no first hand evidence might be in existence.

*662The discussion of these questions by counsel, though illuminating and entertaining, does not present any matter necessary for immediate ruling, since the present case is determinable on the grounds heretofore stated..

Attorney's Authority. IV. Some complaint is made of a want of authority of the attorneys for plaintiffs to represent one of the parties. The authority of an attorney who is duly licensed and practicing is presumed until challenged in some adequate way, and the burden of disproving such authority is imposed upon the party questioning it unless the client has denied the authority of the counsel — in which case, the burden is shifted upon the attorney. [4 Cyc., 931b.] During the trial of this case it appeared in evidence that one of the co-plaintiffs (Lavinia Beach) was joined as such before the trial began at the request of her cousin; that she was a non-resident and did not directly communicate with the attorney for respondents. She has not questioned the authority of respondents’ attorney to represent her, neither did the trial court do so, nor did the defendants directly challenge the authority of respondents’ attorney to represent her by motion supported by affidavits as is the proper practice, but seek to do so in a collateral way. This they cannot do. Hence, nothing is presented for review by the point attempted to be made in this way. [4 Cyc. 930, sub-section 5; Miller v. Assurance Co., 233 Mo. l. c. 95; Scott v. Royston, 223 Mo. 568; State ex rel. v. Crumb, 157 Mo. l. c. 557; Cochran v. Thomas, 131 Mo. 258.]

Under the entire record in this case, the court was justified in directing the quieting of title of plaintiffs to the land in controversy against the appealing defendants. The judgment is therefore affirmed.

All concur.