87 Mo. 496 | Mo. | 1885
The petition in this case contains two counts ; the first of which seeks to divest the defendant of .the'legal title to block seven, in the county’s addition to the town of Mexico, in Audrain county, Missouri,
It may be premised that, at both trials, a large mass of testimony, documentary and oral, -was introduced, which need not here be set out in detail. It may be added, also, that most of this testimony was introduced by one party or the other, on the trial of both counts. It may be remarked, also, that it is objected by defendant, that the evidence fails to identify the block in question *; or to show that the county addition to the-town of Mexico had been surveyed, and the plat or map thereof filed or deposited in the recorder’s office in said county, prior to the sale of said block in 1889, hereafter-mentioned. This objection, however, is, we think, not well taken. Indeed, it is only hypothetically suggested . in defendant’s brief, which, we think, virtually concedes the point. At all events, it clearly appears from the various orders of the county court, and other documentary evidence from the same source, that said survey, in point of fact, had been made, and a map or plat thereof filed or deposited in the recorder’s office, prior to said sale, where it remained for many years. It is true, this map
As to the first count, or equity branch of the case, there seems to be no dispute -as to the other facts touching the controlling question in the case, which may be summarized as follows: In 1889, as shown by the record, one James E. Fenton bought said block at the county commissioner’s sale, and paid for the same then, or prior to 1847, but got no deed for the same at the time. The record also shows, as above stated, that the plat of said addition to said town had never been acknowledged or recorded, as required by the statute then in force, but it nowhere appears that said Fenton had any notice of that fact. Both parties claim title under this sale to Fenton, as follows: In 1840, a judgment was duly rendered in the Audrain circuit court against said Fenton and others, on which, in 1855, an execution was issued and levied upon said block, as the property of Fenton, and at the sale thereof, had in October, 1855, one William P. Harrison, became the purchaser and received a sheriff’s deed therefor, which was duly recorded, in said county, in May, 1856.
The plaintiff; derives his title under said Harrison, by proper conveyance and judicial proceedings, which were completed in 1871; whereupon he took actual possession thereof, and proceeded to enclose the same with a substantial fence at a cost of some fifty dollars, which remained on the premises until some time in
On this state of the record two questions ' arise, which are duly presented and argued by counsel for the respective parties. It is claimed for appellant, Rollins, that his vendor, Harrison, by said purchase at sheriff’s sale became the owner of the equitable title to said block, and as such entitled to demand and have from said county a conveyance of the fee therefor, and that said James E. Fenton and James X_). Penton and this defendant afterwards accepted said deeds, under which they claim with knowledge of plaintiff’s equitable right to the premises. Digman v. McCollum, 47 Mo. 372.
For the defendant it is insisted, (1) That at the
The case at bar, however, in some particulars, is-somewhat unlike both these cases. At the date of Harrison’s purchase of Fenton’s interest in said block, the contract betweeen the county and Fenton remained ex-ecutory only. No deed had then been made, but the county afterwards in execution of said contract, and without any new consideration therefor, makes a deed to Fenton, by which it is conceded that the' legal'title passed, and the question is, whether it passed subject to the equities of Harrison, under whom the plaintiff' claims, and whether the plaintiff is entitled to recover the same from defendant, who claims and holds the same under and by virtue of said deeds from said county to said James E. and said James D. Fenton aforesaid. Did the subsequent conveyance by the county validate the prior executory contract by which Fenton held* when Harrison bought at sheriff’s sale, and thus entitle plaintiff to recover ? Or, waiving this question, can the-defendant, who also holds under a deed based solely on said prior executory contract, call in question its validity ? (Jan he claim title thereunder, and at the same time deny that any title existed thereby? We think nót. If he cannot, this disposes of the question whether the elder Fenton had any valid or vendible interest in said block, at the time of Harrison’s purchase at executor’s sale. But if it does not, the fact remains that Fenton is not shown to have known that the town plat was unrecorded. Mason v. Pitt, 21 Mo. 391.
The only question, therefore, remaining is, whether the execution, sheriff’s sale and deed to Harrison, were valid and sufficient to pass and transfer the interest of Fenton to Harrison to the block in question! If the
For the plaintiff it is insisted that, in the absence of •such proof, it will be presumed that the clerk of the ■court did his duty, and did not issue said execution without such leave of the court so made, and in support ■of this position cites a number of authorities. Perkins v. Quigley, 62 Mo. 498; Waddell v. Williams, 50 Mo. 216. It is also further insisted for plaintiff, that as an ■execution, under the act of 1849, might lawfully issue under the conditions specified in the act; the issuance ■of one without complying with those conditions is, at most, a mere irregularity not rendering the same void, .and cannot be taken advantage of in a collateral proceeding like this.' That the defendant in the execution, on motion, at the proper time, might have the execution and •sale thereunder set aside for irregularity; but that if he made no such motion the sale thereunder could not be ■objected to by a stranger to the execution, in this collateral proceeding. In support of this position, also, a number of authorities are cited and relied on. Cabell v.
On the other hand, defendant claims that the motion, notice and proof and leave of the court, required by the act of 1849, after five years from date of judgment, are, in effect, a substitute for the scire facias required by the old law, and constitute a necessary link in plaintiff’s chain of title, the burden of showing which rests on him, and that, in the absence of such proof, affirmatively made, the plaintiff cannot recover. That, under the old law, the scire facias was a matter of record, and necessarily appeared-in plaintiff’s chain of title, but under the law of 1849 the motion, notice and proof not being of record, could only appear by proof aliande the record, and this proof devolved upon the plaintiff and was as essential to a recovery as any other link in his chain of title ; and that the. issuance of an execution under the law of 1849, without complying with its provisions and conditions, is not, as claimed, a mere irregularity, rendering the sale voidable at the pleasure of the defendant in the execution, but a matter of substance, without-which the sheriff’s sale and deed thereunder are nullities and pass no title; and in support of these propositions cites and relies on the following authorities : Ransom v. Williams, 2 Wall. 313; Williams v. Peyton, 4 Wheat. 77 ; Givens v. Campbell, 20 Iowa, 79 ; White v. Clark, 8 Cal. 512; George v. Middough, 62 Mo. 551
It may be conceded that there are respectable authorities on both sides of the last, or second proposition, hereinbefore stated and described. But, after a careful examination of the authorities cited on both sides, as well as others bearing on the same point, we are satisfied that the weight of authority is decidedly in favor of the position contended for by the defendant. There is a marked distinction between the case at bar and the cases in 50 Mo. and 62 Mo., supra, referred
. On the trial of the count in ejectment, the plaintiff,. as shown by the record, sought recovery of the block in question by virtue of the legal title thereto acquired by operation of the act of the twenty-seventh of February, 1874, now section 3225 of the revision of 1879, in connection with the facts in proof. That act is as follows : “ Any person claiming any real estate in the lawful possession of another, and which has not been in possession of such claimant, or any one under whom he claims, for thirty’ consecutive years, and on which neither he, nop.
At this trial, as before stated, a large mass of testimony was introduced by the respective parties, but, for the purpose of this case, it is sufficient to state only that portion of it essential to and bearing on the material points in issue. It appeared in evidence, as shown by the record, that Mansfield and Smith, in about 1837, obtained a patent from the government for the tract of land of which the block in question is a part. That some time in 1837, they conveyed the same by deed of general warranty, to the county of Audrain, which afterwards, in 1S39, by its commissioner, sold the block in question to one James E. Fenton, but made no deed therefor till 1856 ; that said Fenton in 1859, by deed, conveyed the same to James D. Fenton, who, by deed bearing date the eleventh of November, 1881, conveyed the same to this defendant, who had taken possession of said block in 1877, and was still in possession at the time of the trial, claiming title by his said deed. It also appeared that in the spring of 1871, the plaintiff, under his purchase of said block at the partition sale and the sheriff’s deed thereunder, peaceably took the actual possession thereof, and inclosed the same with a good #and substantial fence, which, in the ordinary course of things, ought to have lasted ten or fifteen years, and which in point of fact, remained there for several years, after .which, as shown by the evidence, it was pulled down and taken away by divers trespassers, at different times, without the knowledge or consent of the plaintiff. It also appeared, that at and prior to the time plaintiff thus took possession of and fenced the blockin question, it was and had been
Precisely when these several trespassers removed the fence does not clearly appear. On this point the evidence was conflicting. That for the plaintiff tended to show that it remained there up to and after the twenty-seventh day of February, 1875, although considerably dilapidated, especially towards the latter part of that period. On the part of the defendant the evidence tended to show that it entirely disappeared before the twenty-seventh of February, 1875 (most likely some time during the year 1874). On this point the jury might well have found either way and it would have been no-cause of reversal. On the part of the plaintiff, the evidence tended to show that James E. Fenton, in about 1841, became and remained insolvent, and that he left that county about that time, leaving various debts and judgments unsatisfied, and shortly afterwards left the state, and never returned, or became solvent, and that said James D. Fenton, about the same time, also left the state and never returned. The plaintiff also testified that he paid one-half of all the taxes on the premises, from the time of I-Iarrison’s purchase in 1855 or 1856, down to his purchase under partition sale in 1871, and that thereafter he paid all the taxes down to 1876, and offered to prove, also, that he had paid them to the time of the trial.
John Howell, a witness for plaintiff, testified that he lived in Mexico ; that he was an abstractor; that he had examined carefully the assessor’s books from 1843 to 1874, and that he found that no land of any kind was assessed to James E. Fenton, or James D. Fenton ; that he found no assessor's books for 1855 or 1856. In 1857, it was to iW. P. Harrison; in 1860, to Harrison and Rollins.; in 1861, not on the books ; in 1862, to Harrison ; in 1863, ¡1864, 1865, I860, 1867, to Harrison’s estate ; in 1S68, to
Besides the above testimony, there was also other evidence, on the part of plaintiff, tending to show that no claimant of said block, nor any one of those under whom he claims, for thirty consecutive years next before the said*twenty-seventh day of February, 1874, had paid any taxes on said block for all that period of time. There was no pretense that this defendant had paid any faxes on it at any time.
On this state of facts the court gave, for the plaintiff, instructions marked a and 5, as follows :
“a. If the "jury believe from the evidence in'the cáse that the county court of Audrain county, Missouri, had the land donated or conveyed to said county, by the deed of Smith & Mansfield, read in evidence by plaintiff, surveyed or laid off in blocks designated by numbers, and had a map or plat thereof made and deposited in the recorder's office of said county, showing the length and*514 width, and number of each, and amongst them was block seven, the land in suit, and that at a sale of such blocks in the year 1839, ordered by said county to be made by its commissioner, Isaac Black, James E. Pen-ton bought said block, and that said Fenton at the time, ■or shortly after, or before 1847, paid for the same ; and further believe from the evidence, that at the time said block seven was levied upon and sold as said Fenton’s property, as described in the sheriff’s deed to W. P. Harrison, given in evidence by plaintiff, said block and its location was known to persons familiar with the ground, and could be easily found by persons so desiring, then by the sheriff’s deed, the subsequent deeds, title bond and records and admissions of defendant on’ the trial of the case, pertaining to said block in evidence, on part of plaintiff, plaintiff .became the equitable owner of said block, and vested with the right to such legal title thereto as was conveyed by Commissioner Craddock’s deed to James E. Fenton, and by him to. James D. Fenton ; and if the jury further find from the evidence that plaintiff, in or about the year 1871, took peaceable possession of said block seven, and fenced the same under his purchase at partition sale, and his sheriff’s deed in partition, given in evidence by him, and continued such possession up to and including the twenty-seventh of February, 1874, then plaintiff was, on such date, in the lawful possession of said block.”
“5. The jury are instructed that if they believe from the evidence, that on and before the twenty-seventh day of February, A. D., 1874, plaintiff was in the lawful possession of the block of land in suit, and continued in possession of the same for one year or more from and after said date, and further believe, from the evidence, •that James E. Fenton bought said block at a. sale of same by Audrain county, and that neither said James E. Fenton nor James D. Fenton, had been in possession of said block for thirty consecutive years next before said*515 twenty-seventh, of February, 1874, and that neither of •said Fentons have paid any taxes upon said land for Said thirty consecutive years next before February 27, 1874, and that neither of said Fentons brought suit against plaintiff to recover said property within a year from and after the twenty-seventh of February, 1874, then the verdict will be for plaintiff.”
The court refused the following instructions asked hy plaintiff:
“1. In order for the jury to find possession of the Block or land in suit to have been in plaintiff • during the period from the twenty-seventh of February, A. D., 1874, up to the twenty-seventh of February, 1875, it is •sufficient that you believe from the evidence that plaintiff had a fence about it, or other erection or erections upon it during such time, and it makes no difference that such fence may have been in a bad state of repair By reason of the planks being broken down or torn off in many places by the unlawful acts or trespasses of third parties.”
“2. The jury are instructed that the deed executed By S. A. Craddock, read in evidence by defendant, did not convey the interest held by Audrain county to.the' block in question, and it and subsequent deeds consequently gave no title to defendant to the block in question.”
“3. The jury are instructed that under the deed made by D. Reddington to defendant, defendant acquired no more than the naked legal title to the land in •question, which, if the jury find the facts to be true, as required in instruction numbered one. belongs of right to plaintiff.”
“4. If the jury believe, from the evidence, that there was no real estate whatever assessed to James E. Fqnton or James D. Fenton during the period of thirty «consecutive years next before the twenty-seventh day of*516 February, 1874, then there being no affirmative evidence On the part of defendant of any such payment of taxes on the property by either of said Fentons, from and under whom defendant claims, you are warranted in presuming and finding that said Fentons paid none.”
To such refusal of the court to give the same, plaintiff duly excepted.
The court gave the following for defendant:
“1. The court instructs the jury that upon the pleadings and evidence in this case plaintiff has. shown no title to the premises which will entitle him to a verdict unless it be on account of adverse possession of the premises, and on that ground you cannot give him a verdict, unless you believe, from the evidence in the case,, the following propositions to be true :
“That plaintiff, James S. Rollins, was in the actual, visible and lawful possession of the premises sued for from the twenty-seventh day of February, 1874, to' the twenty-seventh day of February, 1875, continuously.
“That neither James E. Fenton, James D. Fenton, the city of Mexico, nor defendant, paid- any taxes on said property from the twenty-seventh day of February, 1844, to the twenty-seventh day of February, 1874.
“ If you find either of said propositions to be untrue your verdict must be for defendant.”
“ 2. The possession referred to in the first instruction must have been actual and visible, 'such as would show that some one oivned and controlled the property, and the extent of the land claimed must clearly appear.”
“3. Further on the question of possession, the court instructs you that, from the evidence in the case, James Fenton was the legal owner of the land in suit on the twenty-seventh day of February, 1874, and the’law presumes that he was in possession, and the burden of proof is on plaintiff to show that he himself was in the possession thereof. Unless, then, plaintiff has shown to*517 your satisfaction by a preponderance of evidence that he had, continuously, from February 27, 1874, to February 27,. 1875, such possession, said first proposition is fintrue and your verdict must be for defendant.”
“4. On the second proposition the court instructs you that it is the presumption that defendant, James E. Fenton or James D. Fenton, between February 27, 1844,' .and February 27, 1874, paid taxes on said property, and it is. incumbent on plaintiff to prove to your satisfaction That no one of them paid any taxes on said property for any year during that time, and unless" he does so, said ■second proposition is untrue and your verdict must be for defendant.”
To the giving of which instructions the plaintiff objected. The objection was overruled and exceptions ■duly, saved. ■
■It will be perceived that these instructions call for a construction of the act of the Legislature of the twenty-seventh of February, 1874, now section 3225, supra. They- also show that both parties tried the case on the theory that the thirty years next preceding the date of the act is the period contemplated by the act, and that the party in actual possession at the date of the act must ■continue in possession throughout the whole of the year ■ensuing that date. It is clear, we think, that the claimant, at the date of the act, and his predecessors in the chain of title under which he claims, within said period ■of thirty years, as well as the person in actual possession. .at that date, are the parties contemplated by the act. None others, we imagine, are within its purview. .The claimant of the real estate in question, at that date, as shown by the record, was the said James JD. Fenton, and he so continued for more than seven years thereafter, when he conveyed to the present defendant. The record also (Shows that the city of Mexico-.never owned or .claimed'the property, and is not one of those under whom, said Fenton claimed. By inspection it will be
Although the jury might believe, from the evidence, that neither the claimant nor those under whom he claimed had paid any taxes for the required period, yet, under this instruction, they could not give the plaintiff a verdict, unless they also believed other facts not required by the act in question. There was evidence tending to show that none of the parties contemplated by the statute had paid any taxes for the required period, and there was no evidence offered to the contrary. The jury, therefore, from all the facts and circumstances in evidence, might, if satisfied, have found for the plaintiff on this point, if they had not been misdirected in this particular. Whether they found against the plaintiff on this account, or on some point in the case where the evidence was conflicting, does not appear and cannot be known. This instruction is misleading and manifestly is not the law.
The fourth instruction on the same proposition, in so-far as it tells the jury that “it is the presumption that defendant, James E. Fenton, or James 3). Fenton, be-, tween February 27, 1844, and February 27,1874, paid-taxes on said property,” is both erroneous and mislead-:
The refusal of plaintiff’s fourth instruction, in its •present form, might not warrant a reversal, but the jury might well be told that the non-payment of the taxes, a,s contemplated by the statute, need not be established by direct and positive proof, but may be inferred from the proof of other facts and circumstances, tending to show,, with reasonable certainty, that no such taxes were, in fact, paid. The existence of such facts and circumstances is for the plaintiff to show ; their weight and value is for the jury to decide. Under the ruling in the case of Mansfield v. Pollock, 74 Mo. 185, it must be held that the plaintiff’s possession of the property in question, under the facts in evidence, was a lawful possession, within the meaning of said act,, or section 3225 of the revision of 1879.
For the errors aforesaid, the judgment of the circuit court on the second count, or ejectment branch • of the case is reversed and the cause remanded to be proceeded with in conformity hereto.