Abeles v. Pillman
| Decision Date | 14 July 1914 |
| Citation | 168 S.W. 1180,261 Mo. 359 |
| Parties | ROBERT ABELES, Appellant, v. E. M. PILLMAN |
| Court | Missouri Supreme Court |
Appeal fom St. Louis County Circuit Court. -- Hon. G. A. Wurdeman Judge.
Reversed and remanded.
Andrew M. Sullivan and C. C. Bland for appellant.
(1) If the deed from Greeley to L. F. Pillman is a forgery, as the trial judge found it to be, then the defendant by reason of her mutual relationship to L. F. Pillman, in respect to the lands, is, as would have been her devisor if he had been defendant in her stead, estopped to assert title in or lawful possession of the lands by virtue of the forged deed. Day v. Graham, 97 Mo. 398; Henderson v. Henderson, 13 Mo. 151; Tratam v. Rogers, 34 N.Y.S. 836; Crispen v. Hannavan, 50 Mo. 415; Subway Co. v St. Louis, 140 Mo. 551; Henry v. Woods, 77 Mo 271; Mygall v. Coe, 124 N.Y. 212; Tiedeman on Real Property, sec. 731, p. 690; Boniti v. Brown, 69 S. E. (N. C.) 614. (2) The defendant is not a bona-fide purchaser, but a mere volunteer, and her possession is not lawful within the meaning of the thirty-year Statute of Limitations. Young v. Scofield, 132 Mo. 650; Day v. Graham, 97 Mo. 398; Jones v. Sanders, 87 Mo. 557; Abraham v. Bender, 44 Mo. 560; Henry v. Wood, 77 Mo. 581. (3) If L. F. Pillman intended to claim the land or its possession under the forged deed, then his possession was fraudulent and unlawful. If he did not claim under the forged deed, his possession was that of a mere intruder or trespasser, and was unlawful. Searl v. School District, 133 U.S. 553; Mansfield v. Ballard, 74 Mo. 185; Collins v. Pease, 146 Mo. 135; Long v. Coal & Iron Co., 233 Mo. 740. (4) The failure of the proper officials to assess and levy taxes on the lands furnishes a non-resident owner of such lands a valid excuse for the non-payment of taxes thereon, and Sec. 1884, R. S. 1909, does not apply. Harper v. Meyer, 117 Cal. 60; Dressner v. Nelson, 138 Cal. 394; Swank v. Irrigation & Power Co., 15 Idaho 353; Weisner v. Chamberlain, 117 Ill. 56; Railroad v. Forsyth, 118 Ill. 277.
John A. Watson and A. E. L. Gardner for respondent; Perry S. Rader and E. P. Mann of counsel.
(1) Defendant's possession was lawful for one whole year after the expiration of the thirty-year period during which Greeley paid no taxes nor was in possession. Collins v. Pease, 146 Mo. 139; Shumate v. Snyder, 140 Mo. 84; Swope v. Ward, 185 Mo. 316. Under the ten-year Statute of Limitations, actual adverse possession for ten consecutive years, under a claim of ownership, makes the possession lawful, and vests the title in the possessor, even though he was originally a mere intruder or trespasser. Humbert v. Trinity Church, 24 Wend. (N.Y.) 604; Smith v. McCorkle, 105 Mo. 141; Craig v. Cartwright, 65 Tex. 424; Link v. Bland, 43 Tex. Civ. App. 520; Wood v. Railroad, 11 Kan. 324; Quick v. Rufe, 164 Mo. 412; Mather v. Walsh, 107 Mo. 132; Franklin v. Cunningham, 187 Mo. 196; Scannell v. Soda Fountain Co., 161 Mo. 618; Warren v. Bowdran, 156 Mass. 280. Accepting as correct the definition of "lawful possession" as given in Collins v. Pease, 146 Mo. 139, namely, that "one is in 'lawful possession' within the meaning of the act [Sec. 1884] when he has not entered as a mere intruder or trespasser, but in good faith, claiming to be the owner," then defendant was unquestionably in lawful possession, not only for one year after the expiration of the thirty-year period, but for more than six years. She did "not enter" upon the land "as a mere intruder or trespasser." Her husband had been in possession for eighteen years, claiming to be the owner, and she testifies that "he owned it" and her son Fred that "he always claimed to own it." He was in possession when he died, and by his will he devised the land to her, and she continued without interruption the possession he had and enlarged it by erecting the sand screen. She honestly believed he was the owner, and that in consequence by his will she had become the owner. She did not, therefore, enter "as a mere intruder or trespasser." And she began and continued in possession "in good faith, claiming to be the owner." He had been in possession, claiming to be the owner, for eighteen years, and for at least five years his possession had been peaceable and undisputed by any one. She thought his will gave her a right to continue his possession and to claim to be the owner, and in that belief, honestly and in good faith, she maintained possession for more than six years, continuing to buy and stack ties on the land, and to move sand and gravel from it, and built a sand screen house, and paid taxes on what she thought was the land, which of itself was evidence of claim of ownership. Her possession, therefore, was "lawful," and it was for more than one year after the thirty-year period had expired. Certainly these facts are substantial enough to justify the trial court, sitting as a jury, to find, as a fact, that defendant's possession was lawful. (2) This court has never held that to constitute lawful possession color of title in the possessor is necessary. We have examined, one by one, every case in which title was claimed under section 1884, and in not one of them was it said that color of title is necessary as a basis for "lawful possession." Those cases are as follows: Dunnington v. Hudson, 217 Mo. 93; Campbell v. Greer, 209 Mo. 199; Haarstick v. Gabriel, 200 Mo. 243; DeHarte v. Edmonds, 200 Mo. 246; Crain v. Peterman, 200 Mo. 295; Collins v. Pease, 146 Mo. 135; Fairbanks v. Long, 91 Mo. 628; Mansfield v. Pollock, 74 Mo. 185; Rollins v. McIntire, 87 Mo. 497; Shumate v. Snyder, 140 Mo. 77; Howell v. Jump, 140 Mo. 442; Pharis v. Bayless, 122 Mo. 116; Weir v. Lumber Co., 186 Mo. 392; Chilton v. Comonianni, 221 Mo. 685; Long v. Coal and Iron Co., 233 Mo. 727; Cousins v. White, 246 Mo. 307.
This is a suit in ejectment to recover possession of two irregular strips of land lying in the southwest fractional quarter of section 13, township 37, range 10, west, Phelps county Missouri. The suit originated in the Phelps County Circuit Court but upon change of venue was sent to the circuit court of St. Louis county where trial was had before the court without a jury, resulting in a judgment for the defendant. The petition was in the usual form. The answer contained a general denial but admitted that the defendant was in possession of the land. The answer also pleaded the ten-year and the thirty-one year Statutes of Limitations. The reply put in issue the pleas of the Statutes of Limitations, admitted that neither plaintiff nor those under whom he claimed had paid any taxes on the land, but alleged as an excuse therefor that the land had never been assessed for taxation. The land in question lies between the eastern city limits of the town of Jerome and the Gasconade River. The two strips are separated by the right of way of the St. Louis & San Francisco Railroad, which runs north and south. One of the strips of land adjoins the railroad's right of way on the west and lies between the right of way and the Main street in Jerome and is referred to as the "tie yard." The other strip lies east of the railroad right of way and extends from the right of way to the west bank of the Gasconade river. The two strips of land are approximately two thousand feet long. The tie yard strip varies in width from ninety to one hundred and fifty feet, the river strip is about three hundred feet wide for half way of its length, then it narrows down abruptly to a few feet in width. In 1866, one William F. Greeley made a cash entry of the quarter section in which the land in question is located and on August 15, 1870, received a patent therefor. During the years of 1867 and 1868 said Greeley conveyed the above mentioned right of way to the railroad company and conveyed about six acres of the quarter section to a mill company and on the western portion of the quarter section established the town of Jerome, making a plat thereof showing the blocks, lots, streets and alleys. This left undisposed of the two strips of land now in controversy. On March 26, 1910, said Greeley, by a quitclaim deed, conveyed all of his right, title and interest in and to the land now in controversy to the plaintiff herein, and a short time thereafter this suit was instituted. Plaintiff introduced in evidence the patent from the United States to William F. Greeley and the above mentioned quitclaim deed from said Greeley to the plaintiff herein, and offered evidence tending to show that the monthly rents and profits of the two strips of land were about seventy-five dollars. The evidence on the part of the defendant tended to show that she was the widow of Louis F. Pillman, deceased; that her husband died in December, 1903, leaving a will whereby be devised to defendant, for life, all his real estate. The will does not attempt to describe any of testator's real estate. In 1883, said Louis F. Pillman became a resident of the town of Arlington, which is on the east side of the Gasconade River and about one-half mile from the town of Jerome. From the time said Pillman moved to Arlington until his death in 1903, with the exception of two or three years beginning with 1889 and a further period of about one year beginning about 1896, he was engaged in dealing in railroad ties and the shipping of sand and gravel both at Arlington and at Jerome. The ties which he purchased would be floated down the Gasconade River in rafts and would be landed on the river strip where they would be taken by said Pillman and hauled across the river strip and on to the west strip known as the tie yard. These ties would be stacked upon the tie...
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