Burke v. Adams

Citation80 Mo. 504
PartiesBURKE v. ADAMS, Appellant.
Decision Date31 October 1883
CourtMissouri Supreme Court

Appeal from Cooper Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

E. J. Smith & W. S. Shirk for appellant.

While an alien may take by descent from a citizen under Revised Statutes, section 325, an alien cannot take by descent from an alien, and thus create a perpetuity in aliens who owe no allegiance here. 2 Blackstone Com., 249, 274; 2 Kent, 53; R. S., § 5564; Greema v. Greema, 14 Mo. 526; Farrer v. Dean, 24 Mo. 16; Wacker v. Wacker, 26 Mo. 426; State v. Killian, 51 Mo. 80; Sullivan v. Burnett, 105 U. S. 334. Whatever claim plaintiff has under the deed from Wm. H. Burke, he is estopped to set it up against appellant. Skinner v. Strouse, 4 Mo. 93; Newman v. Hook, 37 Mo. 207; Rice v. Bunce, 49 Mo. 231; Pilkington v. I Co., 55 Mo. 172. The putting the deed on record by Wm. H. Burke, was not a delivery of it to his brother. 21 Am. Law Reg. 268, 269. Even if the deed was to plaintiff's father, it was made in fraud of creditors of Wm. H. Burke, and was void. R. S., § 2497; Lillard v. Shannon, 60 Mo. 522; Howe v. Waysman, 12 Mo. 169; 4 Kent Com. 464; Henderson v. Dickey, 50 Mo. 161. The action is barred by the statute of limitations, as the deed under which plaintiff claims was made and recorded in 1869; the action having been begun in 1881, and during that time Wm. H. Burke was in possession holding adversely to the deed.Rice & Walker for respondent.

Although neither the respondent nor his father had been naturalized, this does not prevent respondent from inheriting and recovering the land. R. S. 1879, §§ 325, 2168; Sullivan v. Burnett, 15 Otto 334; Rankin v. Patton, 65 Mo. 413. There was no estoppel in this case against plaintiff; he only became of age July 7th, 1880, and besides, did not know of his rights in regard to the land. Newman v. Hook, 37 Mo. 214; Acton v. Dooley, 74 Mo. 63; Lefever v. Lefever, 30 N. Y. 27; 34 Pa. St. 334; 14 Cal. 368; 6 Hill 16. At the time of making the quit-claim deed by W. H. Burke to DeForrest, even if respondent had been present, which he denies, he was an infant under age, and, therefore, was not estopped. McBeth v. Trabue, 69 Mo. 642; Lowell v. Daniels, 2 Gray 161; Schnell v. Chicago, 38 Ill. 382; Miles v. Lingerman, 24 Ind. 385; Brown v. McCune, 5 Sanf. 224; Bigelow on Estop., p. 480. There was a sufficient delivery of the deed by W. H. Burke to respondent's father; its filing and recording was a sufficient delivery. Shaw v. Hayward, 7 Cush. 170; Burt v. Cassety, 12 Ala. 734; Major v. Hill, 13 Mo. 247; Pearce v. Dansforth, 13 Mo. 360; Blight v. Schenck,10 Pa. St. 285. Besides, the evidence shows that respondent's father had paid a full and valuable consideration for the land, and moved and remained upon the place until his death. Regan v. Howe, 121 Mass. 424; Cannon v. Cannon, 26 N. J. Eq. 316; Devorse v. Snider, 60 Mo. 235. There was no fraud in the case on the part of respondent's father, and even if this was so, it would not affect respondent's title, as this suit was commenced more than ten years after the filing, for record, of the deed alleged to be fraudulent. Hughes v. Littrell, 75 Mo. 573; Rogers v. Brown, 61 Mo. 187. The bar of the statute of limitations does not apply against respondent; the evidence showing that immediately after the execution of the deed to him, plaintiff's father moved on the land, and remained there until his death, and there being nothing to show that Wm. H. Burke, although also remaining, claimed adversely to the deed. Hamilton v. Boggess, 63 Mo. 233; Bradley v. West, 60 Mo. 33. Payment of taxes by Wm. H. Burke was not sufficient to invoke the bar of the statute, unless he claimed adversely. Bradstreet v. Kinsella, 76 Mo. 63; Chapman v. Templeton, 53 Mo. 463.

PHILIPS, C.

This is an action of ejectment to recover about 114 acres of land in Cooper county. Suit was instituted in September, 1880. The answer pleaded that the land in question belonged to one W. H. Burke, who had a brother named Thomas Burke and a son named Thomas; that his brother was an alien, never having been naturalized, nor having filed any declaration of intention to become a citizen of this country. The plaintiff is the son of Thomas Burke, who was likewise an alien. In 1869 said W. H. Burke executed a deed for said land to Thomas Burke, but the answer alleges that the grantee was the son of the plaintiff and not his brother. That said W. H. Burke filed said deed with the recorder, and had the same recorded in said county. That he afterwards got it from the recorder, and ever kept the same in his possession. That said deed was wholly without consideration, and made to defraud the existing and any future creditors of said W. H. Burke, and especially one Emily Fowler, who claimed a dower interest in part of this land. That said Thomas Burke (the brother) died in 1874. On June 12, 1874, said W. H. Burke, after the death of said brother, appeared before a notary public in the city of Sedalia, and personating Thomas Burke, made and acknowledged a deed for said land to himself, which deed he had recorded in said Cooper county.

In 1876 said W. H. Burke effected a loan on said land with one DeForest, through a loan agent, for the sum of $800, and executed to him a deed of trust thereon to secure the same. The money becoming due in February, 1880, the agent of said DeForest adjusted the matter with said W. H. Burke, by taking from him a deed of quit-claim to the land in satisfaction of the debt. The answer then alleges that possession of the land was surrendered to said agent, who thereafter placed the defendant in possession as his tenant. It is then averred that the plaintiff was cognizant of and present at the time of the execution of this quit-claim deed, and assented to the arrangement, whereby it is claimed he is estopped. The answer also pleaded the statute of limitations. The reply was a general denial. The cause was submitted to the court sitting as a jury for trial.

The evidence in brief tended to show that plaintiff's father came to this country from Ireland, prior to 1868, and the plaintiff came with him. They thereafter resided continuously in Cooper county, and most of the time lived with said W. H. Burke. They seem to have occupied this farm together. Said Thomas Burke purchased, soon after coming to Missouri, forty acres of land situated in Pettis county, a short distance from the land in controversy, at the expressed consideration of $600. On the 2d of November, 1869, W. H. Burke contracted and deeded to one Gerringer 120 acres of land in Pettis county, including the forty acres he had theretofore conveyed to his brother Thomas. He claims that he included this forty by mistake. The consideration was $2,100. The deed to Thomas's forty was made by Thomas to said Gerringer, but the purchase money therefor, amounting to about $700, was paid by Gerringer to W. H. Burke. W. H. Burke stated in his testimony that he afterwards paid $650 of this money to his brother. On the 5th day of the same month, W. H. Burke conveyed the land in controversy to Thomas Burke for the expressed consideration of $1,800, the receipt of which was acknowledged in the deed. This deed was acknowledged and recorded in said Cooper county. W. H. Burke, who testified on behalf of defendant, stated that he had this deed recorded and afterward took it out of the recorder's office; that he never delivered it to his brother; that it was without consideration, and he was induced to make it on account of a claim for dower of Mrs. Fowler to a part of it; that his purpose was to get better terms of settlement with her, and that there was also a claim of about $66 against him. He stated to several witnesses after making the deed to Thomas, that he had sold the land to his brother for so much cash, and the balance was to be paid so soon as they heard from “the ould country.” His son Thomas was only about one year old when the deed to Thomas Burke was made. Other evidence material to the questions to be decided will be noticed in its proper connection. The court found the issues for the plaintiff, and the defendant has brought the case here by appeal.

I. The first question, and the chief one discussed by appellant's counsel, is that relating to the alienage of the plaintiff and his ancestor. Touching this issue it might be sufficient, perhaps, to say that the answer having averred that the plaintiff and his father were unnaturalized and had never declared their intention to become citizens, the burden of this issue rested on defendant. And, if the decision in State v. Killian, 51 Mo. 80, be correct, the proof fell short of the averments. In the case referred to, which was an action to have an escheat declared against land, it was held that the petition was defective, because it did not allege that the alien had not declared his intention to become a citizen, etc. And this, for the reason that the forfeiture could not be declared against him if he filed such declaration, and it was necessary to show that the land was held by one who was not within the exception. Much more so would this rule apply where the defendant, in order to defeat the prima facie right of the plaintiff, as heir, affirmatively alleges the want of such declared intention of citizenship. There was proof, perhaps, extracted from plaintiff, on cross-examination, from which the court might find the plaintiff and his father were born abroad, but there was scarcely anything to warrant a finding that neither had filed declaration of intention. But waiving this matter of pleading, we are satisfied that this branch of the defense is not sustained. The rigors of the common law in this respect, were early modified in the legislation of this State, until by successive enactments, the disabilities consequent upon alienage, to acquire and hold real property by purchase, devise and descent, have been nearly swept away. By the first enactment, (vol. 1, p. 697, Ter. Laws...

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