Brooks v. Roberts

• Citation: 220 S.W. 11,281 Mo. 551
• Parties: W. M. BROOKS, Appellant, v. T. A. ROBERTS et al
• Decision Date: 15 March 1920
• Court: United States State Supreme Court of Missouri

220 S.W. 11

281 Mo. 551

W. M. BROOKS, Appellant, v. T. A. ROBERTS et al

Supreme Court of Missouri

March 15, 1920

Appeal from Reynolds Circuit Court. -- Hon. E. M. Dearing, Judge.

Reversed and remanded.

Arthur T. Brewster and Sam M. Brewster for appellant.

(1) It was the duty of the court to render judgment in an action under Section 2535 for the party showing the better title. The defendants showing no title and the plaintiff making a prima-facie showing, should have had judgment. Toler v Edwards, 249 Mo. 161; Maynor v. Land & Timber Co., 236 Mo. 728; Gage v. Cantwell, 191 Mo 706; Granton v. Holliday-Klotz Co., 189 Mo. 332; Dixon v. Hunter, 204 Mo. 390. (2) Identity of name is identity of person prima-facie. Geer v. Lumber & Mining Co., 134 Mo. 95; State v. Moore, 61 Mo 279; Gitt v. Watson, 18 Mo. 276; Hoyt v. Davis, 21 Mo.App. 235; Jackson v. Goes, 13 Johns. (N. Y.) 518; Jackson v. King, 5 Cow. (N. Y.) 237. (3) The presumption of a grant is indulged only in favor of an ancient and uninterrupted possession; and, since it is admitted in this case that the land is wild and uncultivated timber land, there can be no presumption that the patentee and his wife executed a deed to Ward under whom defendants claim. Dessaunier v. Murphy, 27 Mo. 51; Brown v. Oldham, 123 Mo. 631; Glasgow v. Mo. Car & F. Co., 229 Mo. 591, 597; Jackson ex dem. v. Blanshan, 3 Johns (N. Y.) 296; Fletcher v. Fuller, 120 U.S. 534; Elliott on Evidence, sec. 1332; White v. Loring, 24 Pick. 319; Wigmore on Evidence, secs. 2522, 2515; 1 Jones on Evidence, secs. 75, 76, 76A, and 77.

R. I. January for respondents.

(1) No one has a right to require another to come into court and show his title who cannot himself show, at least, a prima-facie title. If defendants' proof goes no further than to show that plaintiff's claim in invalid, it is no concern of plaintiff to know whether or not defendants' title is good. Wheeler v. Reynolds Land Co., 193 Mo. 291; Senter v. Lumber Co., 255 Mo. 601; Skillman v. Clardy, 256 Mo. 323. (2) The facts and circumstances offered in evidence by the defendants, that their father, Martin F. Brigham, had claimed to own the land since 1860; that he had in his possession the patent therefor, with a bundle of deeds, which he said were the title papers for the land; that the patent was issued to John Conner, as entryman; that this patent and the deed from Howard Ward to George E. Young, under whom Martin F. Brigham claimed title, after the destruction of the deed records in 1872, were both on the same day, to-wit, May 20, 1887, refiled for record and recorded in the recorder's office of Reynolds County; that the deed from Ward to Young, was dated in 1859 and first recorded in 1860; that the deed records were destroyed in 1872; that Brigham continued to pay the taxes from 1860 to his death in 1897; that since his death all the original deeds have been lost or destroyed; that John Conner, the patentee, nor any of his heirs, for more than sixty years, have ever set up any claim to the land, would be such circumstances as to lead any court or any person to presume and believe that John Conner, the patentee, prior to the date of the deed from Ward to Young, had executed and delivered a deed to said Ward, which, with the record thereof, had been destroyed with the other deeds Martin F. Brigham had. Glasgow v. Mo. Car & Foundry Co., 229 Mo. 596; Greenleaf on Ev. sec. 17; Dessaunier v. Murphy, 22 Mo. 95; Brinley v. Forsythe, 69 Mo. 185; Williams v. Mitchell, 112 Mo. 300; Brown v. Oldham, 123 Mo. 631. (3) Title to real estate and the execution and delivery of deeds, like any other fact, may be established by circumstantial evidence, and it is not necessary that the evidence should remove all reasonable doubt -- a preponderance of the evidence is sufficient. Brewer v. Cochran, 99 S.W. 1033; Glasgow v. Mo. Car & Foundry Co., 229 Mo. 600. (4) It is not necessary that the party claiming the land should be in the actual possession thereof before a court or jury would have the right to presume, from evidence and circumstances, the execution of a deed. Glasgow v. Mo. Car & Foundry Co., 229 Mo. 596. (5) The presumption of identity of persons from identity of name, may be shaken and overcome by the very slightest proof of facts which produce a doubt of identity. Keyes v. Monroe, 226 Mo. 121; 2 Chamberlayne on Mod. Law of Ev. sec. 1191.

OPINION

In Banc

GRAVES J.

Action to quiet title. Neither petition nor answer is set out in the record, but the appellant states their contents in his abstract and there is no counter abstract. For the character of the pleadings we must abide appellant's outline thereof, which reads:

"The petition is in the ordinary form under Section 2535, Revised Statutes 1909, alleging that the plaintiff owns said land, that each of the defendants claim an interest therein, either fee simple or otherwise, and praying the court to try, ascertain and determine the estate, title or interest of the parties thereto. Defendants, Ellen M. Cook and Emma E. Brigham, filed answer claiming said land, and alleging that the patentee, John Conner, conveyed said land to Howard Ward in 1859, and said deed and the record thereof has been destroyed by fire; that the Conner heirs under whom plaintiff claims title are not heirs of the John Conner who entered said land; and alleging that they and their ancestor, Martin F. Brigham, have been in the constructive possession of said land since 1859, having paid taxes and exercised ownership over the same for all that time, and that John Conner and his heirs have been guilty of gross laches and should be now barred from maintaining any claim.

"This case was tried before the Circuit Court of Reynolds County, Missouri, on the 27th day of May, 1914, resulting in a judgment in favor of "John Conner, the entryman," from which said judgment both plaintiff and defendants perfected their appeal to this court and said judgment was by this court on June 1, 1917, reversed and remanded to the Circuit Court of Reynolds County (No. 18566; 195 S.W. 1019).

"The case was thereupon tried at the May term, 1918, of the Reynolds County Circuit Court, and at the conclusion thereof was continued by the court until the next term of said court.

"On the 26th day of November, 1918, at the regular November term, 1918, of the Reynolds County Circuit Court, judgment was rendered by the court quieting title in the defendants Ellen M. Cook and Emma E. Brigham to the land sued for, and decreeing that plaintiff has no right, title or interest whatever therein. A certified copy of which judgment is on file in this court."

For the plaintiff the evidence shows: (1) a patent from the U.S. Government to one John Conner of St. Louis County, Missouri, of date of September 1, 1859, which was recorded in Reynolds County, Missouri, May 20, 1887; (2) quit claim deeds from the widow and heirs at law of one John Conner, who died at Metropolis, Illinois, October 7, 1901; (3) the testimony of Ester V. Conner, the widow of the said John Conner, who died at Metropolis, Illinois. This witness testified in substance, that she and John Conner were married in Canton, Iowa, October 15, 1856; that two days after their marriage they moved to Quincy, Illinois, and lived there about three years or a little less; that from there they moved to St. Louis, and lived there five or six years, and then moved to Cincinnati, Ohio, where they remained three years; that from thence they moved back to St. Louis, and removed from St. Louis to Metropolis in 1868 or 1869; that whilst her husband was in St. Louis he was steward on a steamboat from St. Louis to New Orleans; that she heard her husband say that lands were cheap in Missouri and that he thought he would buy some; that she never signed any deed to lands in Reynolds County; that she never saw any patent to lands in Missouri, nor did she know of him owning the lands in suit until she saw an advertisement in a St. Louis paper, a short time before this suit; that her husband never kept her informed of his business; that she never knew or heard of Howard Ward of St. Paul, Minnesota, and had she signed a deed prior to 1860 she thought she would remember it; that in 1900 they had a fire and Mr. Conner's papers were all burned; that she was 72 years old and might be in error as to exact dates, and the time that they lived in Quincy, Illinois.

The defendant offered in evidence the same patent. They then offered a quit claim deed from Howard Ward and wife, to George Young, dated August 23, 1859 (seven days prior to patent to Conner), which deed was acknowledged in Ramsey County, Minnesota, and filed for record in Reynolds County Missouri, May 7, 1860, and again filed for record May 20, 1887, the same day the patent was filed. From Ward to defendants was shown a paper title. To bridge the missing link, and as tending to show facts, which would justify the presumption or a conclusion that Ward had a deed from the patentee, John Conner, the defendants offered oral testimony of parties living in Boston, Massachusetts, and with this the testimony of Ellen M. Cook, defendant. This testimony (depositions in the case) tends to show: (1) that Martin F. Brigham died in Boston, October 17, 1897, testate, leaving as his children, Francis H. Brigham, Ellen M. Cook, and Emma E. Brigham; that at his death Martin F. Brigham had in his possession title deeds to the land in question, including the patent; that they saw the patent from the United States to John Conner, and that it was signed by President Buchanan, Mrs. Cook says that after the death of her father she saw the title papers aforesaid at the home of Martin F. Brigham, sometime between 1872 and 1875, and at that time again noticed the patent; that in 1904 her brother Francis...