Shaffer v. Detie

• Decision Date: 22 November 1905
• Citation: 90 S.W. 131,191 Mo. 377
• Parties: SHAFFER v. DETIE et al.
• Court: Missouri Supreme Court

90 S.W. 131

191 Mo. 377

SHAFFER v. DETIE et al.

Supreme Court of Missouri. Division No. 1.

November 22, 1905.

1. APPEAL — PRINTED ABSTRACT — INCOMPLETE ABSTRACT — EFFECT.

Under court rule 13 (73 S. W. vi), requiring appellant to file a printed abstract setting forth so much of the record as is necessary to a full understanding of all the questions presented, though a complete manuscript transcript is filed, the court will not consider matter not shown by the printed abstract.

2. SAME — REVIEW — FINDINGS — FINDINGS SUBSEQUENT TO DECREE.

The Supreme Court will not consider special findings of fact made and filed by the trial court after entry of its decree.

3. ACTION — NATURE — LEGAL OR EQUITABLE.

Under Rev. St. 1899, § 605, providing for legal as well as equitable defenses, an action at law, in which an equitable defense is interposed, accompanied by a prayer for affirmative equitable relief, is a case in equity, triable to a chancellor.

4. INFANTS — DEEDS — AVOIDANCE.

A deed of a minor is not void, but only voidable.

5. ESTOPPEL — INCONSISTENT CLAIMS IN LITIGATION.

Where, in ejectment, plaintiffs claimed under a deed from an infant, and defendants denied that the infant had any title, they were in no position to claim that the infant's title passed for an inadequate consideration, and that hence the conveyance was void.

6. APPEAL — HARMLESS ERROR — ADMISSION OF EVIDENCE.

In an equity case, the admission of irrelevant evidence was harmless, where the finding and decree took no account of the same.

7. SAME — REVIEW — PRESENTATION OF QUESTION IN TRIAL COURT — OBJECTION TO EVIDENCE.

Where, on appeal, the abstract showed that a deed was objected to by plaintiff, "reason to be inserted later," but no reason appeared ever to have been addressed to the trial court, though inserted in an assignment of errors, the question could not be reviewed.

8. EJECTMENT — TITLE TO SUPPORT ACTION — DEFENDANT WITH EQUITABLE TITLE.

Under Rev. St. 1899, § 605, permitting equitable defenses in actions at law, a naked legal title is insufficient to support ejectment as against an equitable title.

9. VENDOR AND PURCHASER — BONA FIDE PURCHASERS — NOTICE — POSSESSION.

Visible possession of real estate, with acts of dominating control, improvements, cultivation, etc., are as potential in imparting notice of a claim of title as the record of a deed.

10. LIMITATIONS — DEATH OF ANCESTOR — RUNNING AGAINST HEIR.

Where limitations against an action to recover land have commenced to run against an ancestor before descent cast, they continue to run without interruption against the heir under disability.

11. ADVERSE POSSESSION — COLOR OF TITLE — ADMINISTRATOR'S DEED.

An administrator's deed, given in pursuance of a sale of land to pay the debts of a decedent, constitutes color of title.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by William Shaffer against Henry Detie and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.

Scobey & Walton, for appellant. Oliver & Oliver, for respondents.

LAMM, J.

Ejectment for the S. E. ¼ of the S. W. ¼ of section 17, township 21, range 13 in New Madrid county. Ouster laid as of January 1, 1901. Petition in common form. Detie is alleged to be in possession of the locus as tenant of his codefendants, the De Lisles. By joint answer, Detie's possession as tenant of the De Lisles is admitted, and an adverse, visible, and continuous possession under claim of right and color of title since 1878 is pleaded in the defendants and their grantors, thereby invoking the statute of limitations as a defense. By way of matter in pais, constituting an equitable defense and upon which affirmative equitable relief is prayed by defendants, it is further alleged in substance that plaintiff's claim is based on a deed from Newton Morehead, a minor son of Stephen Morehead, deceased; that Stephen Morehead was a son of J. C. Morehead; that Stephen sold said land to his father in the 70's, and received the full purchase price from him, and then and there put his said father in possession, and that by a chain of title, specifically pleaded in the answer, the ownership and possession of said premises had come down from said J. C. Morehead through mesne conveyances to the De Lisles; that the deed from Stephen to his father at the time the sale was consummated was either made and lost before record, or by neglect was not made at all — and relief is prayed that the title of Stephen Morehead be decreed to have passed by said sale from Stephen to J. C. Morehead, and for such further relief as to the court may seem right and equitable. The answer also denied all the allegations of the petition not admitted. Issue was joined by reply to the new matter in the answer, and the cause heard by the court, neither party requesting a jury on any issue.

Plaintiff asked and was refused certain instructions and saved his exceptions. Plaintiff was given certain instructions and defendants asked none. By its decree the court found the facts specifically as alleged in the answer and on March 22, 1902, entered a decree in favor of defendants and granted the affirmative relief prayed by them. Two days after this decree was entered, to wit, on March 24th, plaintiff filed a written request for a finding of facts which request was complied with, and a finding made and filed which, in some particulars, is challenged here by plaintiff. After an unavailing motion for a new trial, plaintiff perfected his appeal and the cause is now pending in this court on a complete manuscript transcript and a meager abstract of record furnished by appellant, which in set terms points us to the manuscript transcript for some of the record facts deemed important by him. Appellant's abstract is supplemented by another furnished by respondents, equally scanty, and which also refers us to the same transcript for certain record facts. Of this condition of things it may be said that while this court has been, of set purpose, conservative and bland in its interpretation and application of its printed rules, yet it is an unbending rule, the underlying wisdom of which cannot be gainsaid, that even in cases where a complete manuscript transcript is filed here, a printed, paged, and indexed abstract must also be furnished us (and served on the respondent) setting "forth so much of the record as is necessary to a full understanding of all the questions presented to this court for decision." Rule 13 (73 S. W. vi). The convenience of litigants and of the members of this court in the dispatch of business requires this done and we have uniformly refused to go behind unchallenged abstracts and to manuscript transcripts, to hunt, as with a lighted candle in hand, to see if peradventure we may spy out the facts and issues pressed upon us for consideration. Such seems the moral to be drawn (and needing heed by the profession) from the frequent dismissal of causes for failure to obey this rule. Manuel v. Railroad, 186 Mo. 499, 85 S. W. 551; Whitehead v. Railroad, 176 Mo. 475, 75 S. W. 919; Ramsey v. Shannon, 140 Mo. 281, 41 S. W. 732; Halstead v. Stone, 147 Mo. 649, 49 S. W. 850; Ely v. Coontz, 167 Mo. 371, 67 S. W. 299. It is true in this case respondents, as was their privilege, seem willing to forego their right to such abstract, but manifestly respondents, however suave, are not at liberty to forego or waive the right of this court to such abstract, and we will presume the printed abstracts import not only verity, but contain all the verity needful to consider.

Attending, then, alone to the printed abstracts, the case made on the facts is as follows: Stephen Morehead is conceded to be the common source of title, and therefore no attention need be given to prior conveyances. On behalf of appellant it was shown that Stephen Morehead died in 1887, divorced from his wife, also now dead. That they left surviving them three children, of whom an only son, Newton Morehead, is alive. Having made a prima facie showing of descent cast upon Newton Morehead, appellant next produced in evidence two deeds — one from Newton Morehead to Scobey, dated August 25, 1900, consideration, $30; and one of the same date from said Scobey to appellant, consideration, $125 — and rested. While appellant was putting in his case, and when on the stand in person, it was sought by cross-examination to show by him that Newton Morehead was a minor, and that appellant knew that fact at the time Scobey took a deed from the lad and at the time he accepted a conveyance from Scobey. To this line of cross-examination appellant's counsel objected because the minority of a grantor in a deed relied on as a link in a chain of title is no defense to an action of ejectment. The objection was overruled, and appellant excepted. On further cross-examination it appeared that appellant knew young Morehead, and was with Scobey on the day he got the deed from the boy for $30, and that on the same day, he, appellant, took a deed from Scobey for $125. On this showing of facts respondents make a point to the effect that the deed from the minor son of Stephen Morehead to Scobey is void; ergo, they say, Scobey took nothing by that grant, and could convey nothing to appellant. The record title relied on by respondents and produced in evidence, so far as material, is as follows: (1) A warranty deed from J. C. Morehead and wife to John McLure, dated September 30, 1878, and duly recorded. This deed was objected to, as will presently appear. (2) Probate proceedings showing the land inventoried as the property of said McLure, proceedings for the sale of the land as his property to pay debts, a report of sale with its approval, followed by a deed from the administrator of said McLure to Edward and Alphonso De Lisle, dated February 15, 1883, and duly recorded. (3) A deed from the De Lisles to one Souders, dated December 15, 1886, and duly recorded. (4) A warranty deed from Souders...