Fox v. Windes

Decision Date18 March 1895
Citation30 S.W. 323,127 Mo. 502
PartiesFox et al., Appellants, v. Windes
CourtMissouri Supreme Court

Appeal from Barry Circuit Court. -- Hon. J. C. Lamson, Judge.

On November 7, 1891, plaintiffs brought ejectment for the southeast quarter of the southeast quarter of section 27 township 22, range 28. They are the children and heirs at law of John M. Lillard. The tract in litigation is part of one as set forth in the subjoined plat:

NORTH.

[SEE ILLUSTRATION IN ORIGINAL]

James M. Lilliard is the common source of title, and the former owner of the whole land described in the plat. He had three children, John M., Pleasant V. and Sarah M., commonly called "Maggie." On the sixth of March, 1867, James M conveyed to his two sons, John M. and Pleasant V., land in the southeast of the southeast and the southwest of the southeast, section 27, township 22, range 28 on the north side of line marked on plat. And it seems that on March 4 1867, he had previously conveyed to his daughter "Maggie," the northwest of the northeast of section 34, township 22, range 28. Though the deed evidencing this fact was not produced, plaintiffs admitted the fact on the trial. And it was admitted also, that the deed records of Barry county were burned in 1872.

On the tenth day of March, 1869, James M. conveyed to his two sons John M. and Pleasant V., the following land, to wit: The southwest of the southeast, section 27, township 22, range 28, and the northwest of the northeast of section 34, township 22, range 28. In the concluding portion of this deed is set forth: "That this deed is made in lieu of a certain deed made and executed by us before Ezekiel H. Cave, justice of the peace, on the sixth day of March, 1867, and recorded in book 'H,' pages 125 and 126, in the recorder's office in Barry county, Missouri, by G. L. Carlin, recorder, in which said deed the numbers of the land are incorrectly given, making us convey the northwest quarter of the northeast quarter of section, township and range aforesaid to Sarah M. Lillard."

On the same day as last mentioned, James M. executed a conveyance to his daughter, Sarah M., by which he conveyed to her the southeast of the southeast of section 27, township 22, range 28. In the concluding portion of this deed also, it is recited: "And we, by these presents, further state, this deed is made in lieu of a certain deed made and executed by us, before Ezekiel H. Cave, justice of the peace, on the fourth day of March, 1867, and recorded in book 'H,' pages 128 and 129, in the recorder's office, in Barry county, Missouri, by G. L. Carlin, recorder. In which said deed, the numbers of the land are incorrectly given, making us convey the southeast quarter of the southeast quarter of section, township and range afore-said, to John M. Lillard and Pleasant V. Lillard." Both of these instruments were recorded April 20 next after their execution.

John M. had been South, in the army, and finally drifted to Texas, where he married, but returned on a visit to his old home in Barry county, in 1869. While there he was heard to converse with his father, James M., as the two were walking alone the tract in controversy, and the father said to the witness in the presence of John M.: "I have given my land to my children. John wants to sell out, and the land I have made to John, if he sells it, interferes with the farm, so I can't make a support, and I want to change it so he can have the west end next to town and sell it and leave the east for me and Betsey our lifetime; then Maggie gets it."

The witness further testified that: "This was along this tract of land, that he and his son John were having the talk about making the change. It was the same land that Mr. Windes now claims to own." The land James M., the father, wanted to deed to the boys, was the west part of the land next to town, "and hold to this on the east so he could make a support for him and Aunt Betsey." That, during the conversation, John M. said "he did not want to disturb the farm so pa and ma could not get a support;" that, right away after the conversation in 1869, the land was sold to Booth, and since that time Booth and those to whom he subsequently sold, have held possession of it ever since; that John M. did not remain in the county long; that the money the land was sold for to Booth went to Texas.

Another witness, Dr. Long, testified that John M. and Pleasant V., his brother, owned the southwest of the southeast of section 27, and the northwest of the northeast of section 34, township 22, range 28. This, of course, must have been after the deed of correction of April 10, 1869, was made, because Dr. Long said that, "I bought the land of Booth, who bought of John and Vernon Lillard." Asked to state what he knew about the sale of the land of which he had mentioned John M. and Pleasant V. (sometimes called Vernon) as the owners, to wit, the southwest of the southeast of section 27, and the northwest of the northeast of section 34, township 22, range 28, this witness said: "John Lillard came to me and asked me to assist him in selling this land to Booth. Subsequently James M. Lillard came to me and asked me to assist him to sell the land for the boys, meaning John and Vernon Lillard. I spoke to Booth with the view of encouraging the sale, and later Booth bought the land. I think he paid $ 800; and Booth built a house on same land, and I bought seventy-seven acres of the same land from Booth, and paid him $ 1,500; and Tony Patterson (colored) bought three acres of same land. When I was trading for this land, I asked Mr. Lillard about the title to this land. He told me the southwest quarter of southeast quarter, section 27, and northwest quarter of southeast quarter, section 34, township 22, range 28, had belonged to the boys (referring to John and Vernon Lillard); that there had been a mistake made in deeding the land to them, but that he had corrected the deed. I understood from his conversation that he had by mistake deeded them the other land." This witness further testified that when John Lillard was in Barry county wanting to sell the land, he said he could make more out of the money than he could out of the land.

Dr. Long further testified that in 1872 or 1873, James M. borrowed rails of him to make a partition fence between the land in controversy and his land, and that this fence remained there so long as witness owned the land; that, at the time James M. borrowed the rails, he said he was fixing up this land (that in controversy) "for the old woman and the baby" (his daughter Maggie); that either James M. Lillard or James Park, since his marriage with Maggie, have exercised acts of ownership over the forty in question, some fifteen or sixteen years. It was also in evidence that James M. died in 1882, and that since that time, and ever since the making of the deed of correction in April, 1869, James M. Lillard and those claiming under him have had peaceable and unquestioned possession of the premises in dispute as owners, down to the time of the present action; that no claim was ever set up to the premises, either by John M. or Pleasant V. during their lives; that the latter died single, while one of plaintiffs was a small child, having fled from Barry county in consequence of killing Sparkman.

Affirmed.

Frost & Wear and H. C. Pepper for appellants.

(1) Appellants established the unquestioned paper title from James M. Lillard, the admitted common source of title, which wiped out every other title in the case. This gave them the legal seizin and possession; and upon this title, they had the right to rest, throwing on the defendant the burden to defeat it by some means known to law. Husley v Wood, 55 Mo. 252; Parsons v. Parsons, 45 Mo 265. (2) James M. Lillard, the common source of title, having conveyed the premises to his sons, John M. and Pleasant V. by his warranty deed in 1867, the title passed to and vested in the grantees, and no subsequent act or intention on his part, could divest it. Parsons v. Parsons, 45 Mo. 265; Hall v. Hall, 107 Mo. 101. (3) For this reason the court erred in allowing defendant to read in evidence the subsequent deeds of James M. Lillard, dated April 10, 1869, in which he attempted to convey the land in controversy to his daughter, Sarah M. These deeds were utterly void, and were annihilated by the deed of 1867. See authorities cited under second point. And the recitals therein, as to the mistake, were incompetent to prove such mistake. Fine v. St. Louis Public Schools, 30 Mo. 166. (4) The defendant's plea of estoppel is untenable. The answer itself does not contain within its allegations, a single element of estoppel, and, even if it did, the evidence on the part of defendant annihilates any such claim. If there is any estoppel in this case, it is the defendant, and not plaintiffs, who is estopped. Blodgett v. Perry, 107 Mo. 263; Eitelgeorge v. Ass'n, 69 Mo. 52. (5) There was not adverse possession in the case; the possession of James M. Lillard was permissive. He did not disclaim the title of his sons and assert title in himself. Meier v. Meier, 105 Mo. 411; Budd v. Collins, 69 Mo. 129; Forder v. Davis, 38 Mo. 107. (6) Admitting that J. J. Park's possession was adverse, yet it had not ripened into a title at the time this action was brought, in 1891. R. S. 1889, sec. 6764. (7) There is not a word of evidence showing that John M. and Pleasant V. had any notice that their land was being held adversely, by anyone. And the deeds of Jas. M. Lillard, in 1869, and the mortgages by Park and wife, were not notice to them of adverse claims. The owner of land is not required to watch the recorder's office to ascertain if someone is filing deeds and mortgages on his land. Meier v. Meier, 105 Mo. 411. (8) Even...

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