140 Mo. 77 | Mo. | 1897
Lead Opinion
This suit is to perfect title by limitation to two small tracts of land in the city of St.
The claim of plaintiff (though not fully stated in the petition) is that for more than one year before the commencement of the suit he had been in the lawful possession of the land and that one Benjamin E. C. Champion if living, and if dead his heirs, hold the apparent record title thereto. That the equitable title had emanated from the United States more than ten years before the possession of plaintiff was acquired, and that neither the said Champion nor anyone claiming under him had been in the possession thereof for thirty consecutive years, and had not paid the taxes thereon for the same period.
Defendant William H. Snyder and Arabella C. Dill answered that the said Champion died in 1861, leaving as his heirs two sisters, Jane E., wife of William H. ■ Snyder and Margaret Champion, who afterward married James M. Dill. That the said William H. Snyder died December 24, 1892, and the said Jane E. .Snyder died January 8, 1894, leaving defendant William H. Snyder her sole heir at law. That Margaret Dill died on the fourteenth day of February, 1877, leaving her husband James M. Dill, and defendant Arabella C. Dill, her daughter and only heir, surviving her, and that the said James M. Dill is still living.
Plaintiff, to sustain the issues on his part, offered ■ in evidence a deed from the sheriff of St. Louis conveying the lots in question to him, by sale under a judgment and execution in favor of the collector against Huntington Smith. The judgment was for delinquent taxes and the deed was dated January 26, 1882. He also showed that the title, both legal and
Defendants by evidence established the facts stated in their answer. They also offered evidence tending to prove that the possession of plaintiff was not continued for one year. It was also shown by evidence that Huntington Smith had purchased the land for taxes, and had, thereafter, paid the taxes for a number of years. During that time damages for opening a street through the property amounting to $20 or $30 was paid to him. It was shown that the land was in the actual possession of no one until plaintiff took possession in May, 1893, except that one Allen, who claimed under a tax deed, had it fenced for a short time.
Upon the pleadings and evidence the court entered a decree establishing the title of plaintiff as against defendant William H. Synder, and James M. Dill, but denied a like decree against defendant Arabella C. Dill. Plaintiff and defendant Snyder both appeal.
The two sections of the statute referred to are as follows:
“Sec. 6770. Limitation in case oe cebtain titles. Whenever any real estate, the equitable title to which shall have emanated from the Government more than ten years, shall thereafter, on any date, be in the lawful possession of any person, and which shall or might be claimed by another, and which shall not at such date have been in possession of the said person claiming or who might claim the same, or of anyone under whom he claims or might claim, for thirty consecutive years,*83 and on which neither the said person claiming, or who might claim the same nor those under whom he claims or might claim has paid any taxes for all that period of time, the said person claiming or who might claim'such real estate shall, within one year from said date, bring his action to recover the same, and in default thereof he shall be forever barred, and his right and title shall, ipso facto, vest in such possessor. Provided, however, that in all cases such action may be brought at any time within one year from the date at which this article takes effect and goes into force.
“See. 2095. Suit to perfect title by limitation — proceedings.—In all cases when, under the provisions of the section entitled ‘Limitation in case of certain equitable titles,’ of chapter 101 of the Revised Statutes of Missouri of 1889, the title or claim of any person out of possession of any real estate shall be barred by limitation, and the title thereto has vested in the pkrty in possession, or the party under whom he claims, under the provisions of said section, the party holding the title which has vested by limitation under the provisions of said section may bring his action in the circuit court of the county in which the real estate is situated, to have his record title thereto perfected, and it shall be sufficient for him to state in his petition that he holds the title to such real estate, and that the same has vested in him or those under whom he claims by limitation under the provisions of said section, and in such action it shall not be necessary to make any person a party defendant except such persons as may appear to have of record a claim or title adverse to that of plaintiff, and upon the trial of such cause, proof of the .facts, showing title in plaintiff by limitation by reason of the provisions of said section, shall entitle him to a decree of the court declaring his title by limitation under the provisions*84 of said section, and a copy of such decree may be entered of record in the office of the recorder of deeds for said county, and in any such action service of procbss may be had as provided in article 4 of this chapter in causes affecting real estate, and if in any case the person whose adverse claim appears .of record shall be dead, then the heirs or devisees of such person, or those claiming by, through or under him or them, if known, shall be made defendants, as advei’se claimants, and if they be unknown to plaintiff, then he shall allege in his petition under oath that there are, or that he verily believes there are, persons interested in the subject-matter of the petition as heirs or de-visees of deceased, or as claiming by, through or under him or them, whose names he can not insert therein because they are unknown to him, and shall describe the interest of such person, and how derived so far as his knowledge extends, and service of process on such person shall be had as in said article 4 is provided in case of unknown parties, and when such service shall be had, judgment and decree shall be rendered the same as though personal service had been had.” v
I. The possession taken by plaintiff under his sheriff’s deed was lawful within the meaning of section 6770, though it may not have been effectual to pass the title. If the possession, to be lawful, must be taken under title, the aid the section undertakes to give would be useless. So it has been held that color of title is all that is necessary to support the possession. Pharis v. Bayless, 122 Mo. 124; Mansfield v. Pollock, 74 Mo. 185.
II. The judgment rendered necessitates the finding by the court, that plaintiff was in the lawful possession of the property for one year before the institution of the suit; that neither defendants them
These facts make out, prima facie, a case which entitles plaintiff to a decree. against both defendants, unless his right is defeated by matters pleaded and proved in evidence.
III. Jane Snyder, a married woman, held the legal title to an undivided one half of the land from the death of her father in 1861. Her husband died December 24, 1892. On the eighth of January, 1894, she died. The requisite period of plaintiff’s possession expired in May, 1894.
Section 6770 is found in article 1, of chapter 103, of the Revised Statutes of 1889. Section 6767 of the same article provides that “if any person entitled to commence any action in this article specified be, . . . at the time such right or title shall first decend ... a married woman, . . . such person may bring such action . . . within three years after such disability is removed.”
Defendant Snyder insists that, inasmuch as Mrs. Snyder, under whom he claims by descent, was under disability until December, 1892, she had three years from that date in which to commence her suit, less than two years of which had expired when she. died, and that said defendant had at least one year after the death of his ancestor in which to commence his action.
We do not think it necessary to decide, in this case, whether the exceptions on account of disabilities provided in section 6767 are applicable to the limita
If the statute began to run against Mrs. Snyder at the time plaintiff went into possession of the land it was not suspended or interrupted at her death, but continued to run against her-heir.
IV. Defendants insist that though neither they nor those under who they claim paid taxes on the land for thirty consecutive years, yet Huntington Smith, who did pay taxes, received twenty or thirty dollars assessed as damages to the land on account of the opening of a street, and that amount should be credited to them as a payment of taxes. We are unable to see a foundation for this claim. The question is not who paid the taxes, but did defendant, or those under whom they claim, pay them? Rollins v. McIntire, 87 Mo. 496; sec. 6770, supra. The payment of taxes by Smith, so far as appears, was voluntary, and he had no right to reimbursement from the owner of the land. Harrigan v. Weemuth, 77 Mo. 545; Napton v. Leaton, 71 Mo. 369. Smith was in no sense trustee or agent of the owner of the land. Indeed he claimed the land adversely to defendants and their ancestor and we must presume, there being no explanation, that he received the damage money as. a claimant of the land and not as agent or creditor of the owner. His collection of the damages which may have belonged to defendant’s ancestor can not be construed into a payment of taxes by the latter. We find no error in the proceedings or the judgment rendered as to appellant, William H. Snyder. As to him the bar of the
V. Mrs. Dill,. one of the heirs of Champion, died in 1877, leaving her husband and one child, defendant Arabella C. Dill, surviving her. Both were living at the time of the trial. The husband held the life estate by the curtesy and the child the reversion in fee. The husband was therefore entitled to the possession of the land during his lifetime, and no cause of action to recover possession accrued to the child until after the expiration of the life estate. It follows that the general statute of limitation would not begin to run against defendant Arabella C. Dill during the life of James M. Dill, the life tenant. Such has been the uniform ruling of this court in respect to the general statutes of limitation. Bradley v. Railroad, 91 Mo. 498.
But counsel insists that this special statute, under a proper construction, bars every one who has a claim or interest in the land. The statute does not give a remainderman the right to sue for thé recovery of the land, nor is he given such right by the .general law. We would hesitate to uphold a statute which, by express terms, toot the title from the owner, who is out of possession, and vested it in another in the possession for the reason that the owner “did not bring án action to recover the same,” within one year after possession was taken, when no authority to bring such action is given him. We would certainly not give such a meaning to a statute by construction. Northcutt v. Eager, 132 Mo. 265. The section in question creates a bar in favor of any person who “claims or might claim” the real estate in case he fail “to bring his action to recover the same” within one year. The claim referred to must include an existing possessory right, otherwise the claimant could not “bring an action to recover the
We find no error in the ruling of the circuit court and the judgment is affirmed.
Rehearing
ON MOTION NOR REHEARING.
On motion for a rehearing, made by defendant Snyder, it is suggested that plaintiff failed to make proof of such possession as authorized a decree for title under the statute. The examination of the evidence on that question shows it to be so unsatisfactory as to leave it in much doubt and uncertainty. Plaintiff’s rights depend upon his continuous possession of the land for one year before commencing his suit, and, as- the decree sought would take the title from the owners, and vest it in him, the proof of the possession required by the statute should be clearly made. The report of the evidence in this case is so meager, and the testimony of each witness so ambiguous and contradictory that we are unable to say with any degree of certainty that an inference of continued possession for one year can be drawn therefrom. We therefore think it proper to so modify our judgment as to affirm the judgment in favor of defendant Arabella 0. Dill, and to reverse the judgment against defendant William H. Snyder and remand the cause as to him for a re-trial, and it is so ordered.
