Abeles v. Pillman

• Citation: 168 S.W. 1180,261 Mo. 359
• Decision Date: 14 July 1914
• Docket Number: No. 16460.,16460.
• Parties: ABELES v. PILLMAN.
• Court: United States State Supreme Court of Missouri

168 S.W. 1180

261 Mo. 359

ABELES v. PILLMAN.

No. 16460.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

1. ADVERSE POSSESSION (§ 71) — COLOR OF TITLE.

Defendant, who was in possession of land and claimed title under the thirty-one year statute of limitations (Rev. St. 1909, § 1884), is not in lawful possession under the statute because of a forged deed conveying the land to her predecessor in title, where she did not know of the deed's existence.

2. ADVERSE POSSESSION (§ 68) — COLOR OF TITLE — NECESSITY — "LAWFUL POSSESSION."

Under Rev. St. 1909, § 1884, providing that whenever any real estate, the title to which shall have passed from the government for more than ten years, shall be in the lawful possession of any person, and shall be claimed by another, and shall not at such date have been in possession of the person claiming the same, or of any person from whom he claimed, for thirty consecutive years, and on which neither the claimant nor his predecessors shall have paid taxes during that period, an action must be begun within a year, or the claimant is barred, the term "lawful possession" does not mean possession by the owner, but possession of some one claiming the property, and is obviously used as synonymous with one who enters in good faith; and hence color of title is not necessary for a party to be in lawful possession, although most bona fide claimants would enter under color of title.

3. ADVERSE POSSESSION (§ 70) — "COLOR OF TITLE."

The term "color of title" implies that a valid deed has not passed.

4. ADVERSE POSSESSION (§ 115) — QUESTION FOR JURY.

In ejectment, where defendant claimed the land under the thirty-one year statute of limitation, and the evidence as to whether she was in lawful possession for more than one year after the thirty year period, and before the institution of the suit, was conflicting, the question is for the jury.

5. APPEAL AND ERROR (§ 1177) — REVIEW — PRESUMPTIONS.

In ejectment, where defendant claimed the land by virtue of the thirty-one year statute of limitations, and the court sitting without a jury made special findings that defendant was in possession under color of title, it cannot upon appeal be assumed that the court found the issues generally in favor of defendant, and hence, where the finding that defendant held under color of title was erroneous, the case must be reversed to enable the trier of fact to determine whether her possession under the statute was lawful.

6. ADVERSE POSSESSION (§ 86) — THIRTY-YEAR STATUTE — APPLICABILITY.

Rev. St. 1909, § 1884, providing that whenever any real estate, the title to which shall have emanated from the government for more than ten years, shall thereafter be in the lawful possession of any person, and shall be claimed by another, and shall not have been in the possession of the claimants or one from whom he claims for thirty consecutive years, and on which neither the claimant nor his predecessors shall have paid taxes for that time, an action therefor must be instituted within a year or he is barred; the fact that the land was not assessed for taxes does not take the case out of the statute, where the owner, who deemed the property worthless, made no inquiry or attempt to pay taxes.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Ejectment by Robert Abeles against E. M. Pillman. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

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, Mo. 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 limitation. The reply put in issue the pleas of the statutes of limitation, 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 2,000 feet long. The tie yard strip varies in width from 90 to 150 feet. The river strip is about 300 feet wide for halfway 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 6 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 quitclaim deed, conveyed all his right, title, and interest in and to the land now in controversy to the plaintiff herein, and in 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 $75. 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 he 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 yard strip until they were inspected by the railroad inspector, and then they would be placed upon cars and shipped out. At times the tie yard strip would be practically covered with ties, and at other times only a few culls would be located thereon. The number of ties handled varied in number from 100,000 to 200,000 per year. During this time said Pillman loaded sand from the river strip. The sand would be deposited on the river strip about once a year, during high water, and then Pillman would haul sand away until the supply was exhausted, and would then wait until another deposit was made before moving more sand. During the time said Pillman continued the sand and tie business he exercised exclusive rights of ownership over the two strips of ground, denying to others the right to use the same. Defendant's evidence also tends to show that during the time that Pillman continued the tie and sand business on this ground he claimed to own the ground. Defendant offered in evidence an instrument purporting to be a quitclaim deed conveying the land here in controversy to L. F. Pillman, executed and acknowledged by "William F. Greeley" at the city of St. Louis January 12, 1903, recorded in Phelps county, Mo., August 10, 1908 (the evidence tends to show, and the court found, that this deed was a forgery). The evidence tends to show that four or five years after the death of said L. F. Pillman this deed was either handed or mailed, by deceased's attorney, to John H. Pillman, a son of defendant and L. F. Pillman, the grantee named in said deed. It appears that at the time of L. F. Pillman's death said attorney was attending to his legal business, and at the time of Pillman's death had possession of his will and some other documents belonging to said Pillman. J. H. Pillman, the person who received, from the attorney, the above-mentioned deed, had never heard of the deed prior to its delivery to him. Upon receiving the deed, said J. H. Pillman had the same placed of record. The record does not disclose how the attorney got possession of the deed; neither is there any direct evidence that said Pillman, the grantee in said deed, had ever had possession of the deed or knew of it. Defendant testified that her husband used this land all the time that he was in the sand and tie business; that he hauled gravel and sand from the river strip and hauled the ties from the river, across the river strip, and piled them upon the tie yard strip; that she never heard any one else claim to own the land during all the time they were there; and that no one else was in possession of or used or claimed to own the land during any of the time that her husband occupied it. Upon cross-examination she testified her son Fred, since the death of her...