Gage v. Cantwell

Decision Date12 December 1905
Citation91 S.W. 119,191 Mo. 698
PartiesANNA D. GAGE et al. v. CANTWELL et al., Appellants
CourtMissouri Supreme Court

Appeal from Washington Circuit Court. -- Hon. F. R. Dearing, Judge.

Affirmed.

Anthony & Eversole and Edw. DeArcy for appellants.

(1) The court erred in finding that E. L. Gage, the party taking deed under S.D. Cobberly, was the same person as the party mentioned as E. L. Gage, in the deposition of Anne D. Gage who died in Chicago in 1892. Identity of name is not equivalent to identity of person. Lucas v. Land Co., 186 Mo. 445. (2) The finding of the court, as to the fee simple title, or any finding of right, title or interest in plaintiffs was error. The plaintiffs having alleged that they were the owners in fee of the premises in the petition described, were required to prove it. Meriwether v Love, 167 Mo. 514. (3) Common source of title only applies where there is possession under one who is a common source of title and was in possession. Cunningham v Powell, 97 Mo. 525; Fellows v. Wise, 46 Mo. 350; Brown v. Brown, 45 Mo. 412; Matney v. Graham, 59 Mo. 190; Alexander v. Campbell, 74 Mo. 142; Hunt v. Railroad, 75 Mo. 252. (4) There is no allegation or proof of any possession by the plaintiffs, and where there is no title on either side the prior possession under claim of title will prevail, but the plaintiff having failed to prove the allegations of the petition, the defendants were not required to prove their right to the said premises, whether by right of legal title or possession. Mulherin v. Simpson, 124 Mo. 610; Bledsoe v. Simms, 53 Mo. 305. (5) The court erred in permitting plaintiffs to introduce in evidence the deed of S.D. Cobberly to E. L. Gage. No title having been shown in S.D. Cobberly and no possession having been shown in E. L. Gage under said deed, the same was incompetent and irrelevant for all purposes, there being no showing that the said deed was ever delivered, or that the person mentioned as grantee in said deed and the E. L. Gage mentioned in the deposition of Anne D. Gage, were one and the same person.

Warren D. Isenberg for respondents.

(1) Identity of name under proper circumstances is prima facie proof of identity of person. In this case it is positively proved and the court so found. Lucas v. Land Co., 186 Mo. 445, is good law under facts of that case, but has no application in this case. (2) As between the parties to the suit plaintiff showed a fee simple title -- one which defendants sought to acquire. The recital of the deed and the suit being against E. L. Gage (the statutes require the record owner to be sued; that was E. L. Gage) dead though he was, makes that deed prima facie proof of ownership. R.S. 1899, sec. 3150. The case of Meriwether v. Love, 167 Mo. 514, has no application to the text which it is sought to support by appellants. (3) Appellants contend that common source of title is only available where there is possession under one who is a common source of title, and cite Cummings v. Powell, 97 Mo. 525. We fail to see any application of the case cited. The possession of the land is not involved. The court gave no writ of possession. The holder of the better title is always entitled to the possession. The right to the possession always follows the paper title. The defendant claimed the land of E. L. Gage under a void judgment, execution and sale for taxes -- the whole proceedings being against a dead man. Common source of title is always a good title. Defendant had no title at all and no possession of the land. If a common source is not sufficient, we fail to see any reason why it is good in any action. In ejectment, both the question of title and possession is involved. Bank v. Harrison, 39 Mo. 433; Holland v. Adair, 55 Mo. 40; Chouquette v. Barada, 33 Mo. 249; Brown v. Brown, 45 Mo. 412. The defendants can not deny E. L. Gage's title and still claim under it. Bank v. Manard, 51 Mo. 548; Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545; Smith v. Lindsey, 89 Mo. 76. Plaintiff has a right to show whatever interest defendant had was derived from the common source of title. This may be shown by parol, as in this case, as well as by records. Grandy v. Carey, 93 Mo. 595; Finch v. Ullman, 105 Mo. 255; Smith v. Lindsey, 89 Mo. 76.

OPINION

FOX, J.

This cause is in this court upon an appeal by defendants from a judgment rendered against them by the Washington County Circuit Court. This action was brought under section 650, Revised Statutes 1899, to try, ascertain and define the title of the parties plaintiff and defendant, in and to the land described in the petition. As the sufficiency of the petition is not challenged, we see no necessity for reproducing it here. After the institution of the suit by respondent, Henry C. Bell was made a party and he entered his appearance, and together with his co-defendant Cantwell, they filed a joint answer, alleging Cantwell to be the owner of the land, and followed with a general denial of the allegations of the petition.

Plaintiff offered in evidence the deposition of Anna D. Gage, one of the plaintiffs, who testified that she was the widow of E. L. Gage, and resided in Cincinnati, Ohio, and lived in Cincinnati about nine years, but resided in Texas before that time. That she was the wife of E. L. Gage and for over twenty years they lived together at Alpine, Texas; that E. L. Gage, her husband, was dead; that he died in Chicago in 1892; that there was only one child born to their marriage, a daughter, who is unmarried and living with Anna D. Gage; her name is Harriet A. Gage, and is over eighteen years old; that her husband's title papers are lost and that she had searched among hers and his papers, which were in her possession, but could not find them; he had his papers scattered from Alpine, Texas, to Chicago, and that she did not know what became of his title papers. She further testified that E. L. Gage owned the land in suit. She further stated that she knew it and knew it all along that he owned the land, and learned a few months ago that it was sold for taxes. She also said that E. L. Gage died intestate. Plaintiffs then introduced a deed from S.D. Cobberly and Catherine E. Cobberly, his wife, by S.D. Cobberly, her attorney in fact, conveying the land in controversy to E. L. Gage of Alpine, Texas. Then followed the introduction of the record of the tax suit of State ex rel. Collector of Washington County, Missouri, against E. L. Gage, begun May 17, 1894, and the order of publication, and the judgment of the circuit court, and the deed made in pursuance of the sale under such judgment, conveying the land to Henry C. Bell, trustee, and a deed from Henry C. Bell to H. J. Cantwell, the defendant, all of which were recorded. Henry C. Bell was introduced as a witness, substantially testifying that he acquired his title to this land by purchase at the sheriff's sale under the tax proceeding, as trustee for himself and others. This was all the testimony on the part of the plaintiffs, and defendant introduced none. There were no instructions requested, given or refused, except the one at the close of the plaintiff's case in the nature of a demurrer to the evidence, which was by the court overruled.

The cause was submitted to the court and a finding was had for the plaintiffs, and the following judgment was entered of record: "Now at this day this cause coming on for trial upon the pleading and proof, come the plaintiff by attorney and the defendant by attorney, and all matters of law and fact being submitted to the court, and the court having heard the argument of counsel and all the evidence doth find for the plaintiffs, Anna D. Gage and Harriett A. Gage, and against the defendants Harry J. Cantwell and Henry C. Bell. It is therefore, ordered, adjudged and decreed by this court that the fee simple title and the right to the possession in and to the following described land in Washington county, Missouri, is in the said plaintiffs Anna D. Gage and Harriet A. Gage, said lands being described as follows: The east half of the southwest quarter, and lots one and two of the northwest quarter, of section number five, township number thirty-five, range one east, containing two hundred and forty acres of land, more or less, and that the defendants Harry J. Cantwell and H. C. Bell have no right, title or interest in and to said lands or any part thereof, and had not on the 10th day of December, 1901, or at any time since the institution of this suit, and they are hereby debarred from asserting or claiming any right, title or interest hereafter in and to all or any part of said land. It is further adjudged that plaintiff recover of and from the defendants all costs, in this behalf expended, for all of which execution may issue."

Motions for new trial and in arrest of judgment were filed and by the court overruled, and from the judgment rendered the defendants prosecuted their appeal to this court, and the record is now before us for consideration.

OPINION.

The errors complained of by appellants, as disclosed by the record before us and suggested in the brief of counsel, may thus be briefly stated:

1. That the court erred in finding that E. L. Gage, the grantee in the deed from S.D. Cobberly, was the same E. L. Gage who died in Chicago in 1892, as testified to by Anna D. Gage, his widow.

2. That the testimony as to the title to this land on the part of the plaintiffs was insufficient to authorize and warrant the decree rendered.

3. That under the facts of this case there was no common source of title, and hence it was incumbent upon the plaintiffs to establish their title by proper legal conveyances from its original source.

We are unable to agree with learned counsel for appellant upon any of the...

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