Akins v. Adams

• Decision Date: 03 March 1914
• Parties: JOHN R. AKINS v. ALVIN ADAMS, Appellant
• Court: Missouri Supreme Court

164 S.W. 603

256 Mo. 2

JOHN R. AKINS v. ALVIN ADAMS, Appellant

Supreme Court of Missouri, First Division

March 3, 1914

Appeal from Polk Circuit Court. -- Hon. C. H. Skinker, Judge.

Reversed and remanded.

Rechow & Pufahl for appellant.

(1) The court committed error in admitting a number of the deed records offered in evidence by the plaintiff without the proper preliminary proof that the original deeds could not be had. (2) The court committed error in admitting in evidence record of deed of Granville L. Noland, deceased, by administrator, to Harriet E. Noland. O'Day v McDaniel, 181 Mo. 534. "East half and south west qr. of south east qr. 31, T. 35, R. 24," will not in an administrator's sale be read as being section 31 township 35, range 24. (3) The court committed error in excluding evidence offered by defendant tending to show that plaintiff grantors only claimed up to the fence line. Such evidence is admissible; also as to the Government corners. "Parol evidence is admissible to establish the location of monuments, and even hearsay evidence and evidence of general reputation is admissible." Tiedeman on Real Property, sec. 832; Diggs v. Knotz, 132 Mo. 250. (4) The defendant's demurrer at the close of the plaintiff's evidence should have been sustained. (a) Because the plaintiff had failed to show a complete chain of title in himself. (b) Because the survey had not been made in accordance with the rules and regulations of the United States Land Department. Knight v. Elliot, 57 Mo. 317; Frazier v. Bryant, 59 Mo. 124; Vaughn v Tate, 64 Mo. 491; Lemmon v. Hartsook, 80 Mo. 19; Jacobs v. Mosley, 91 Mo. 464; Dolphin v. Klann, 246 Mo. 488; Lester's Land Law and Regulations, 722; Manual of Surveying Instructions, 26. For the same reasons, the instruction asked at the close of all the evidence should have been given. (5) The original entry as shown by the patent, is to "Isaac Yroth." The decree in evidence, by which it is evidently attempted to get this title out of the entryman, is against "Isaac Troth." Now, Isaac Yroth and Isaac Troth are not idem sonans.

W. W. Wood and L. Cunningham for respondent.

(1) The preliminary proof that the original instruments could not be produced was ample to authorize the court to admit record evidence showing the title of plaintiff. A reading of the evidence will sustain this proposition. (2) The court properly admitted the record of the deed of Granville L. Noland, deceased, by his administrator, in evidence and it became a question for the court to determine the meaning of the abbreviations when considered together with all the other facts in evidence. Even if this deed was not in proper form the decree offered in evidence was sufficient to establish plaintiff's title to the land and vest in him all the interest of said Noland. (3) The court did not exclude any proper evidence offered by the defendant that the persons under whom plaintiff holds title claimed the fence to be the true line, or claimed otherwise than to the true line. (4) Defendant's demurrer was properly overruled. Plaintiff introduced in evidence original deeds, record copies of deeds, and decree of court showing a complete chain of title. There could be no doubt of plaintiff's title. The survey was made according to Government regulations and to conform to the original Government field notes and the corners established by the Government. The fact that as a practical proposition there were more than 160 acres in the southwest quarter of section 31 would not make the survey invalid, and the excess in that quarter section was properly apportioned to the different landowners. Secs. 11316, 11320, 11321, 11322, R. S. 1909; Carter v. Hornback, 139 Mo. 238; Mayor v. Burns, 114 Mo. 426; Mining Co. v. Davis, 156 Mo. 422. The corners established by the United States surveyors would control. Climer v. Wallace, 28 Mo. 556. And if a corner were not found the field notes of the United States survey will control in ascertaining such corners. Whitehead v. Ragen, 106 Mo. 235.

OPINION

LAMM, J.

Suing in ejectment on a petition in conventional form, with ouster laid as of a day in March, 1909, plaintiff had a verdict at a trial to a jury in the Polk Circuit Court for possession of the two parcels of land described in his petition, to-wit: a narrow strip off of the east side (a bit wider at one end than the other) and a strip in the shape of a wedge off the north side of the southwest quarter of the southeast quarter, section 31, township 35, range 24. We omit technical descriptions which were by metes and bounds, courses and distances. From a judgment following said verdict, defendant on due and apt steps comes here by appeal. The amount of land in question is eighty-five one-hundredths of an acre, the dispute is over party lines, and the answer is a general denial.

There is no evidence tending to show that plaintiff or his grantors, near or remote, had been in possession of the two strips of land for a great many years more than sufficient to confer title by limitation, if the element of adverse possession be present on behalf of defendant. Contra, there was uncontradicted evidence tending to show that defendant had been in possession for a great many more years than sufficient to confer title by limitation, provided that possession was adverse and under a claim of right. The respective farms of defendant and plaintiff were coterminous and both had been under the plow for a generation or more and in actual possession (pedis possessio). On the north side of said forty there was for many years a party fence, and on the east side a like fence. Both these fences apparently divided the lands of plaintiff and defendant. There was an issue, threshed out at the trial (and decided against defendant), as to whether those party fences were on the true lines -- defendant affirming and plaintiff denying that fact and evidence on one side going in pro and on the other con thereon. There was an issue, likewise threshed out (and decided against defendant), as to whether defendant's possession was adverse and under claim of right -- plaintiff denying and defendant affirming that fact and the evidence was pro and con on that issue. There was no common source of title agreed to, assumed or shown to exist. To make his case plaintiff put in evidence the record of an official survey and supplemented that with oral testimony, among others, of the two surveyors who made it, to-wit, the surveyors of Polk and Cedar counties (the farm being on the county line between the two and one of the section lines run being the county line, as we understand it). Also to make his case plaintiff undertook to deraign title from the U.S. Government down to him in a claimed unbroken chain of conveyances, while defendant introduced no chain of title whatever but stood on a claimed continuous, open, notorious and adverse possession under a claim of right for a time sufficient to confer title on him. He furthermore (below and here) impugns the validity and integrity of the survey plaintiff relied on. He furthermore (below and here) challenges plaintiff's record title as insufficient to support ejectment. There are rulings challenged on evidence and on giving and refusing instructions which are also assigned for error.

Any further facts necessary to pass on material points will appear in due course and proper place in the body of the opinion, in connection with the disposition of those points. We state questions in our own way.

I. Of rulings on the admission of evidence.

(a) In putting in his chain of title plaintiff offered the record of sundry deeds passing between plaintiff's remote grantors and grantees. It was objected below (not that the record disclosed any defect in the instruments or in their acknowledgments, but) that no sufficient ground was laid for the introduction of such record, for that the original deeds were the best evidence and they were not accounted for.

The broad objects of our registry acts being to preserve muniments of title against the vicissitudes of loss or slips and lapses of memory and to give notice thereof to the world, it would be expected that such beneficent purposes would be supplemented by a liberal rule regulating the use of such deed records in the courts of the land. A stringent rule in that regard could not justify itself on the inherent good sense of the thing; for the record presumably in the first instance is as good as, and a replica of, the original. Accordingly we find two very definite, liberal statutory rules directed in part to that end, thus:

One (R. S. 1909, sec. 2818) making deeds acknowledged as provided by the statute admissible without further proof of their execution, thus relieving parties from common law burdens of proof of execution. The originals are always admissible, regardless of the records (Parkinson v. Caplinger, 65 Mo. 290, 294) and the right to use or have the originals produced may be a very valuable right, for example, in case the record is defective.

The other (Ibid., Sec. 2819) permits the use in evidence of the record of a deed whenever (quoting) "it shall be shown to the court by the oath or affidavit of the party wishing to use the same, or of anyone knowing the fact, that such instrument is lost, or not within the power of the party wishing to use the same."

In the instant case it was sufficiently shown, under the oath of plaintiff, that the originals of the deeds, whose records were offered in evidence and allowed over objection, had never been in his hands. He had bought his land without the originals having been turned over to him, relying on their record for the evidence of his chain of title. So he knew nothing about the whereabouts of those deeds and such inquiries as he was able to...