Hunt v. Searcy

Decision Date19 February 1902
PartiesHUNT et al. v. SEARCY et al., Appellants
CourtMissouri Supreme Court

Appeal from Ray Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

J. L Farris & Son for appellants.

(1) In an ejectment suit, if plaintiffs recover, it must be on the strength of their own titles. The evidence conclusively shows that Michael Turnage, Sr., was insane from 1842 to his death in 1876, and the records if admitted establish that he was judicially determined to be insane by the county court in 1852. (2) Michael Turnage, Sr., being thus declared insane was incapable of making a contract in the premises. 1 R. S 1855, sec. 32, p. 868. (3) Having been declared insane, this disability remains until application for removal is made according to sections 39, 40 and 41, chap. 81, which was never made. 1 R. S. 1855, sec. 32, p. 869. (4) If the son of Mike Turnage signed the deed with his mother, Jemima Turnage (which is patent on the face of the deed), then it could not convey any interest he might have had in the premises because his father, though declared insane and under legal disability, was yet living and the guardian had the control over the estate of said Michael Turnage, Sr., and for the further reason that the evidence shows that the son of Michael Turnage, Sr., and his namesake, was virtually an imbecile from his birth.

F. B. Ellis and Frost & Frost for respondents.

(1) The deed from Michael Turnage and Jemima Turnage to Jane Rowland and her bodily heirs conveyed an estate tail at common law and under our statute gave a life estate to Jane Rowland, with a fee simple remainder to the heirs of her body. (2) Jane Rowland did not die until February, 1897, and the statute of limitations did not begin to run against the heirs until her death. Hall v. French, 165 Mo. 430. (3) (a) The deed executed on the twenty-ninth day of December, 1863, to Jane Rowland and her bodily heirs was executed by Michael Turnage, Sr., for the reason that he was the owner of the land at the time, and it will be presumed that it was the owner who executed the deed. (b) The word "senior" is a mere addition and no part of the name. Neil and Furguson, Ex., v. Dillon, 3 Mo. 59. (c) Identity of name is prima facie identity of person. Gitt v. Watson, 18 Mo. 274; Long v. McDow, 87 Mo. 197; Hoyt v. Davis, 21 Mo.App. 235. (d) The law will not notice a slight variation in spelling if the sound is practically the same. Wilkerson v. State, 13 Mo. 91; State v. Subday, 14 Mo. 417; State v. Hutson, 15 Mo. 512; Wheten v. Weaver, 93 Mo. 430. (e) Michael Turnage, Jr., at the time had no interest in the land and it is not to be presumed under such circumstances that Jemima Turnage would have joined in a deed to the land with him, or that Jane Rowland would have taken a deed from him, when she must have known that he had no title to the land. The deed must have been from Michael Turnage, Sr., for the reason that Jane Rowland and Lee Rowland, her husband, took possession under it and occupied the land without question until they deeded their interest in the same to E. P. Tiffin, the defendants' ancestor. (4) It was not error on the part of the court to exclude the record of the probate court, for the reason that such evidence was not admissible under the pleadings. (a) It was not shown or attempted to be shown whether the Michael Turnage referred to in said record was Michael Turnage, Sr., or Michael Turnage, Jr. (b) Defendants' title, consisting of the life estate of Jane Rowland, and their possession of said tract of land having come through and under deed from said Jane Rowland, they are estopped after receiving the benefits under it to set up that their possession was adverse to others claiming a later estate in said land derived through the same deed as their grantor's interest was derived. (c) Said judgment is void and of no binding force or effect against Michael Turnage because the court was without jurisdiction of the person concerning whom said order was made for the reason that the information therein set out purporting to have been filed on August 14, 1842, would not support an inquiry had ten years after, on May 4, 1852, and no legal inquiry was had at time of filing of information. Crow v. Meyersieck, 88 Mo. 411. (d) Said judgment is void because no notice was served on Michael Turnage, and service of notice is jurisdictional and corresponds to summons in ordinary action. Crow v. Meyersieck, supra; In re Marquis, 85 Mo. 615. Where it appears of record that the court had no jurisdiction over either person or res, the judgment is void in a collateral proceeding. Adams v. Cowles, 95 Mo. 501; Brown v. Woody, 64 Mo. 547; Ziebold v. Trotter, 118 Mo. 349. Jurisdiction of a court of limited jurisdiction must appear on face of record. Lavender v. McCloud, 26 Mo. 65; Cunningham v. Railroad, 61 Mo. 33. If such jurisdiction does not appear of record, its acts are void. Fisher v. Davis, 27 Mo.App. 321. The records of the probate court were not admissible in evidence for the further reason that the right to avoid a contract on the grounds of insanity can only be exercised by the insane person, his guardian, or legal representatives. Even admitting that the inquest by the probate court of Ray county of the insanity of Michael Turnage is regular, yet the defendants can not plead the insanity of Michael Turnage as they are not relatives or creditors of Michael Turnage. They must have some interest in his estate in order to make this defense. Caldwell v. Ruddy, 2 Idaho 5; Atwell v. Jenkins, 40 N.E. 178; Carrier v. Sears, 86 Mass. 4.

OPINION

MARSHALL, J.

Ejectment for a portion of the northwest quarter of the northeast quarter of section 17, township 53, range 28, in Ray county. The suit was begun October 17, 1898, and the ouster is laid as of the -- day of February, 1897. The plaintiffs are the bodily heirs of Jane Rowland, who died in February, 1897. The defendant Searcy is the tenant in possession, under the administrators of E. P. Tiffin, and the other defendants are the heirs of E. P. Tiffin. The petition is in the usual form. The answer of Searcy disclaims any interest in the land, and sets up his tenancy. The answer of the other defendants is a general denial and a special plea of the ten-years' statute of limitations. The case was tried by the court, a jury being waived, and resulted in a verdict and judgment for the plaintiffs, from which the defendants appealed.

The plaintiffs' mother, Jane Rowland, was a daughter of Michael Turnage (or, as it seems to sometimes be spelled, Tunage) and Jemima, his wife. Michael Turnage, Sr., and Jemima his wife, had other children besides Jane Rowland, to-wit, Michael Turnage, Jr., and Sultana Turnage, who married Rube Holman, both of whom are still living. Michael Turnage, Sr., died in 1869 or 1870, or 1876 or 1877, it is not clear which. Michael Turnage, Sr., acquired the land in controversy by a deed from Robert Rockhole, the original patentee, dated March 28, 1838.

The plaintiffs claim title by virtue of the following deed:

"This indenture made this 29th day of December in the year of our Lord one thousand eight hundred and sixty-three, by and between Jemima Tunage and Michael Tunage of the county of Ray, in the State of Missouri, of the first part, and Jane Rowland, of the county of Ray, State of Missouri, of the second part, Witnesseth, that the said Jemima Tunage and Michael Tunage for and in consideration of the sum of one hundred dollars to them in hand paid, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, convey and confirm unto the said Jane Rowland and her bodderly heirs and assigns forever, all that piece or parcel of land situated and being in the county of Ray, in the State of Missouri, being known and designated as follows: The northwest quarter of the northeast quarter of section No. seventeen, of township fifty-three, in range twenty-eight, together with all and singular, the appurtenances thereto belonging or in anywise appertaining, to have and to hold the above described premises unto the said Jane Rowland and her bodderly heirs, and assigns forever all of their interests in said lands aforesaid, premises unto the said Jane Rowland and her bodderly heirs, and assigns, against all lawful claim or claims of all and every person whomsoever do and will warrant and forever do bind by their presents in witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written, the whole of the above described tract of land is not conveyed only during Jemima Tunage life time Michael part is forever conveyed to Jane Rowland and her bodderly heirs.

Jemima (X)[mark] Tunage. (Seal.)

Michael (X)[mark] Tunage. (Seal.)

"State of Missouri,

County of Ray.

Be it remembered that on this twenty-ninth day of December in the year of our Lord one thousand eight hundred and sixty-three, before me, R. A. Crenshaw, and acts justice of the peace within and for the county of Ray, personally appeared Jamima Tunage and Michael Tunage, who are personally known to me to be the persons whose names are subscribed to the foregoing deed as having executed the same as parties thereto, and severally acknowledged the same to be their act and deed for the purpose therein mentioned.

"R. A. Crenshaw, J. P.

"Taken and certified the day and year first above written.

"R. A. Crenshaw, J. P.

"Filed for record April 25, A. D. 1866."

The claim of the plaintiffs is, that this is a deed from Michael Turnage, Sr., and Jemima his wife, and that it vested a common-law estate-tail in Jane Rowland, with a remainder in fee in the plaintiffs as her bodily heirs, and which by the statute then in force in this State...

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