Stone v. Perkins
| Decision Date | 30 March 1909 |
| Parties | PARMELIA L. STONE et al. v. A. B. PERKINS and DALE PERKINS, Appellants |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.
Affirmed.
N. A Mozley and Ralph Wammack for appellants.
(1) The petition in the suit in ejectment in the United States court filed by plaintiffs' grantor, W. B. Stone, avers that defendant, Perkins, and one John Ware went into actual possession of the land on the 4th day of January, 1893. The petition for injunction, filed at the same time, by the same plaintiff, against the same defendants and in the same court likewise charges defendant, Perkins, and said John Ware with having entered into the actual possession of the land on said date. The answer of defendant, Perkins, in said injunction suit alleges that he did go into the actual possession of said land, not on the 4th day of January, 1893, but on the 17th day of December, 1892; that he went in under his title in good faith, holding the possession as his own, and that said John Ware was in possession as his tenant and not otherwise. The proof in the case at bar shows, without contradiction, that he did take actual possession, on said date, under his title, erect a dwelling-house thereon and put said John Ware in possession. From these averments charged to be true by plaintiffs and admitted and proven to be true by defendants and adjudged to be true by the United States court, we respectfully submit as an established fact in the case at bar, that defendant did take actual possession of said land, under his title, in good faith, on the 17th day of December, 1892, and began holding the same as his own, adversely to the world. Applicable to this fact, defendants invoke the following propositions: (a) Coincident with defendants' possession of the land on the 17th day of December, 1892, under claim and color of title, the Statute of Limitations began to run in his favor. (b) The adverse possession of defendants on the 17th day of December, 1892, being an undisputed fact, the law presumes the continuance of such adverse possession. Tiedeman, Real Prop., sec. 700; Greenl. Ev. (13 Ed.), sec. 41; Clements v. Lampkin, 34 Ark. 598. (c) Before defendants' possession can be interrupted or the running of the Statute of Limitations in his favor interfered with, plaintiffs must establish by a preponderance of the evidence at least one of the following facts: 1st. That defendants were legally ousted of the possession by plaintiffs before the expiration of ten years from the date of their entry, or, 2d, that the defendants were holding the possession in subordination to plaintiffs' title, or, 3d, that defendants, short of the expiration of ten years from the date of their entry, voluntarily abandoned the possession. There is no pretense of a legal ouster of defendants, or that defendants held the possession in subordination to plaintiffs' claim of title, nor do the facts of this record show an abandonment of the possession by defendants. Hickman v. Link, 116 Mo. 123; Scarritt v. Railroad, 148 Mo. 676. (d) Adverse possession in Missouri is determined by the character and situation of the land and the uses to which the owner may wish to subject it. Benne v. Miller, 149 Mo. 482; Hickman v. Link, 97 Mo. 228. The uncontradicted proof in this case shows that the land in question is swamp and overflowed and not susceptible of any occupation other than that to which defendants subjected it. The uncontradicted proof also brings the defendants squarely within the doctrine announced in the cases of Benne v. Miller, and Hickman v. Link, supra. And actual knowledge on the part of Stone that Perkins was holding the land under claim of title would seem to dispense with actual visible possession of the land by Perkins. Key v. Jennings, 66 Mo. 367; Leper v. Baker, 68 Mo. 407; Cook v. Farrah, 105 Mo. 502; Goltermann v. Schiermeyer, 111 Mo. 422, 125 Mo. 302. (2) The court erred in overruling defendants' pleas of former adjudication. Black on Judg., sec. 517; 24 Am. and Eng. Ency. Law (2 Ed.), 781; Lafoon v. Fretwell, 24 Mo.App. 258; Carlisle v. Howes (Ky.), 43 S.W. 191. The conclusiveness of a judgment, as between the parties to it, is not confined to the entire matter litigated, but includes the finding of any facts which were in issue, and were necessarily decided. State ex rel. v. Branch, 134 Mo. 592; Brown v. Railroad, 96 Mo.App. 164; Cromwell v. County of Sac (U. S.), 24 L.Ed. 195.
James E. Reese with Keaton & Keaton for respondents.
(1) The county of Stoddard, the common source of title, conveyed the true legal title to this land by its special commissioner, Alfred Eltzroth, to Lewis M. Ringer, by its patent, dated April 28, 1869, duly recorded May 10, 1869, and this true title passed by mesne conveyances to his grantees, mediate and immediate, down to and including respondent, Samuel F. Campbell, as innocent purchasers. Simpson v. Stoddary County, 173 Mo. 421. (2) The true legal constructive possession of the land passed to and vested in Lewis M. Ringer by virtue of his true legal title, the patent, with the conveyances of this true legal title to his grantees, mediate and immediate, down to and including respondent, Samuel F. Campbell, without a break or hiatus, except by the wrongful temporary possession of John Ware for two months and a few days by disseizin under color of title in A. B. Perkins, which ended forever in March, 1893, and the legal constructive possession immediately returned to and vested in the owner of the true legal title. Turner v. Baker, 64 Mo. 245; Bradley v. West, 60 Mo. 41; Sell v. McAnow, 158 Mo. 471. (3) The county had no title to convey and conveyed no title to A. B. Perkins, December 16, 1892, by the patent. Machine Works v. Bowers, 200 Mo. 234. And all claiming under this second patent took with full notice. And respondents and their grantors are innocent purchasers under the prior patent. Simpson v. Stoddard County, supra. (4) The contention of appellants, "That a possession under color of title may be discontinued after a month or a year, and that, thereafter, the constructive possession of the land would follow the color of title instead of the true title," and after ten years the true owners would find themselves barred by the Statute of Limitations, is in the very teeth of the law. Lynde v. Williams, 68 Mo. 370; Brown v. Hartford, 173 Mo. 192; Gordon v. Park, 202 Mo. 247. Carter v. Hornback, 139 Mo. 245; Herbst v. Merrifield, 133 Mo. 270. (5) The court did not err in overruling defendants' plea of res judicata of the judgment in ejectment in the U. S. Circuit Court in the case of Stone v. Perkins. Smith v. Jameson, 91 Mo. 19; Henan v. Wade, 74 Mo.App. 340; Charles v. White, 112 S.W. 546; Kimmel v. Benna, 70 Mo. 65. The case of Stone v. Perkins was a suit in ejectment and the plaintiff failed in his action. Snell v. Harrison, 131 Mo. 503; Speed v. Railroad, 163 Mo. 111; Kimmel v. Benna, supra; Crowe v. Crowe, 195 Mo. 345. The difference is clearly explained in Pence v. Gabbart, 63 Mo.App. 308, and Home Life Ins. Co. v. Sherman, 46 N.Y. 372; Leet v. Gratz, 124 Mo.App. 405. The title of Stone Board of Trustees v. Fry & Woods, 192 Mo. 561. (6) The trees and timber standing and growing on the land at the time sold by A. B. Perkins to Nimmons and Bennett were a part of the land, and belonged to respondent and his grantor, the true owners of the land. Nimmons and Bennett had no title or even color of title and no possession whatever. The pretended lease was nothing but a bill of sale for the timber. Andrews v. Costican, 30 Mo.App. 31; Lead Co. v. White, 106 Mo.App. 233. A. B. Perkins had no title nor any possession whatever, actual or constructive, and the sale and license to take the timber dated April 25, 1898, by whatever name it may be called, conveyed no title to the timber to Nimmons and Bennett. So, Nimmons and Bennett were trespassers under license at the instance and for the benefit of A. B. Perkins, for which A. B. Perkins, the principal trespasser, was liable to respondent, S. F. Campbell, through Campbell's assignment from his grantors. Dreyer v. Ming, 23 Mo. 436; Alred v. Bray, 41 Mo. 487; State v. Valle, 164 Mo. 551; Potter v. Everett, 40 Mo.App. 159; Breuster v. Fox, 117 Mo.App. 722; Morgan v. Pott, 124 Mo.App. 378. The cause of action set out in the second count of the petition accrued when Nimmons and Bennett took the timber from the land from and after October 26, 1898. Lead Co. v. White, 106 Mo.App. 233. (7) The assignments were both duly executed and in writing, but they would have been valid if they had only been verbal, and were full protection for appellant, A. B. Perkins, against any future action against him for the same cause of action. Doering v. Kenamore, 86 Mo. 589; Guerney v. Moore, 131 Mo. 668; Gay v. Orcutt, 159 Mo. 406; Roth v. Wire Co., 92 Mo.App. 262; Chouteau v. Boughton, 100 Mo. 410; Childs v. Railroad, 117 Mo. 433.
This is an action under section 650, Revised Statutes 1899, made returnable to the March term, 1904, of the circuit court of Stoddard county, wherein the plaintiffs allege in their first count that they are the owners in fee simple of all of section 9 of township 23 of range 12 in Stoddard county, Missouri. They allege that the defendants claim to have some title, estate and interest in and to said lands adverse to the title of plaintiffs and they pray the court to ascertain and determine the title and interest of the plaintiffs and the...
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