Arcadia Timber Co. v. Evans

• Decision Date: 14 October 1930
• Citation: 31 S.W.2d 988,326 Mo. 549
• Parties: Arcadia Timber Company and Hemphill Lumber Company, Appellants, v. Joe Evans
• Court: Missouri Supreme Court

31 S.W.2d 988

326 Mo. 549

Arcadia Timber Company and Hemphill Lumber Company, Appellants, v. Joe Evans

Supreme Court of Missouri

October 14, 1930

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Reversed and remanded (with directions).

L R. Jones and Orville Zimmerman for appellants.

John A. McAnally for respondent.

OPINION

Atwood J.

Arcadia Timber Company, a corporation, and Hemphill Lumber Company, a corporation, commenced an action against Joe Evans to quiet and determine title to Lot Two (2) of the Southeast Quarter (SE1/4) of Section Thirteen (13), Township Eighteen (18) North, Range Nine (9) East, by petition filed in the office of the Clerk of the Circuit Court of Dunklin County, Missouri, on June 7, 1920. Defendant filed answer claiming title under the ten-year Statute of Limitations to the following described part of the land described in plaintiffs' petition:

"Beginning 20 chains east of the southeast corner of the Southwest Quarter of Section Thirteen (13), Township Eighteen (18), Range Nine (9), running thence east 5 chains, thence north 20 chains west to west boundary of Lot Number Two (2) of the Southeast Quarter of said Section Thirteen (13), Township Eighteen (18), Range Nine (9), thence southeasterly direction along the boundary between said Lot No. Two (2), and Southwest Fractional Quarter of Southeast Quarter of said section to beginning point containing about 14 acres, more or less."

Plaintiffs' reply was a general denial. The case was tried to a jury in December, 1921, and the following verdict was returned:

"We, the jury, find the issues joined in the above entitled cause, for the defendant, to-wit: That defendant is the owner of the premises described in the petition and in the evidence by adverse possession."

Plaintiffs filed motions for a new trial and in arrest of judgment which were overruled. Undertaking to perfect their appeal to this court plaintiffs filed abstract of the record and brief, but the record disclosed that no judgment had been entered by the trial court and the appeal was dismissed on the ground that it had been prematurely taken. [Arcadia Timber Company and Hemphill Lumber Company v. Evans, 304 Mo. 674, 264 S.W. 810.]

Thereafter, on October 4, 1926, appellants herein filed transcript of judgment and order allowing appeal in this cause, from which it appears that after our mandate was filed in the Circuit Court of Dunklin County, plaintiffs, appearing by their attorneys, and defendant, Joe Evans, appearing by his duly appointed, qualified and acting trustee and attorney, John McAnally, on September 3, 1926, and at the regular 1926 term thereof, requested that this cause be taken up for disposition, and said court finding that no judgment was ever entered upon the verdict theretofore returned, ordered and adjudged that "defendant, Joe Evans is the owner of the fee simple title by adverse possession, of in and to the following described land located in Dunklin County, Missouri, to-wit: Beginning 20 chains east of the southeast corner of the Southwest Quarter of Section Thirteen (13), Township Eighteen (18), Range Nine (9) running thence east 5 chains, thence north 20 chains west to west boundary of Lot number Two (2) of the Southeast Quarter of said Section Range Nine (9), thence southeasterly direction along the boundary between said Lot No. Two (2), and Southwest Fractional Quarter of Southeast Quarter of said section to beginning point containing about 14 acres, more or less, and that plaintiffs have no estate or interest therein, and that defendant recover his costs in this behalf expended, and that execution issue therefor."

On August 9, 1929, counsel for plaintiffs, joined by John McAnally as attorney and trustee for Joe Evans, respondent, filed motion "for permission to print additional abstract of record, supplementing abstract of record now on file in Supreme Court in old case No. 24040, decided July 28, 1924, as and for the record in the above cause now pending in this court, and for permission to print supplemental brief for use in connection with briefs now on file in Supreme Court in old case No. 24040, in presenting the appeal," which motion was sustained and permission given. Supplemental abstract was filed by appellants from which it appears that before judgment was entered as aforesaid, said court entertained a motion in said cause reciting that defendant, Joe Evans, was, on the day of , 1924, convicted of murder in the second degree in the Circuit Court of Dunklin County, Missouri, and his punishment assessed at a term of fifteen years in the Missouri State Penitentiary; that his sentence was affirmed by the Supreme Court of Missouri; that he is now serving said term in said penitentiary; that under the laws of this State said cause cannot be properly and finally disposed of until a trustee is appointed to take charge of whatever property, personal or real, the said Joe Evans may own, including his claim to the property involved in this suit, and to defend and protect the interest of the said Joe Evans in said property, if any, to the end that his property interests may be preserved, protected and defended as required by law; and requesting the court to appoint a proper and suitable person as such trustee. Thereupon the court appointed John A. McAnally as such trustee, who filed bond, which was approved by the court. Counsel for appellants have filed supplemental brief, but no brief has been filed in respondent's behalf, either in the old case or in this appeal.

Among the errors complained of in plaintiffs' motion for a new trial and urged by their counsel on this appeal is the action of the trial court in refusing to give their instruction numbered 1, requesting a directed verdict at the close of all the evidence. We shall consider this assignment first.

Plaintiff proved their record title, which included patent from Dunklin County, Missouri, issued and recorded in 1888, to the land described in their petition, showed payment of taxes, both general and special, by them for more than ten years prior to the suit, and their agents and representatives in charge testified that they had no knowledge of defendant's occupancy or claim of title to any part of the land until two or three years before this suit was filed. Defendant asserted title to none of the land except the fourteen acres, more or less, described by metes and bounds in his answer, and his only claim of title to that was under and by virtue of the ten-year Statute of Limitations. The burden, therefore, was upon him to prove such a title, that is, show that he had been in open, notorious and continuous possession of the land under claim of ownership, for ten consecutive years prior to June 7, 1920, the date of the commencement of this suit. [Heckescher v. Cooper, 203 Mo. 278, 101 S.W. 658; Hunnewell v. Adams, 153 Mo. 440, 444, 55 S.W. 95; Hunnewell v. Burchett, 152 Mo. 611, 54 S.W. 487.] If there was any competent evidence adduced that his possession had all these characteristics plaintiffs' instruction for a directed verdict in their favor was properly denied. Otherwise, it should have been given.

Attending to the evidence, we find that defendant testified that while a minor he and his father and mother began living on this place in February or March, 1908; that they occupied a two-room tent, one room being boarded up part of the way and the other boxed, which was there when they came; that only about an acre of ground was then cleared; that it was fenced and he thought there was a garden; that it was just in the woods; that he lived there with his father and mother about a year and then married, while still a minor, and they all continued to live there until he got a patent from Dunklin County, dated December 29, 1910, for the fourteen acres, more or less, described in his answer, which included this acre of cleared ground; that he supposed the title was in the county and he obtained it by paying the county $ 1.25 an acre and getting the patent; that he commenced to clear the land after he got this patent, clearing and cultivating a little more ground every year until at the time of the trial six or seven acres of the land had been cleared; that he built a house two or three years after he went there, after he got his patent from the county, and then started making his improvements.

It further appears from defendant's evidence that a fisherman named Henry Kimbrow lived in the tent a year or two before defendant came there with his father and mother. There is no evidence that Kimbrow had or ever claimed to have any title whatever to any of the land in question. Defendant claimed to have "bought possession" of Kimbrow for about forty dollars, and Kimbrow thereupon moved out and defendant moved in with his parents. Defendant claimed that this transaction was evidenced by a contract in writing which Kimbrow delivered to him. This "contract" was never produced in court, although in spite of promptings of counsel to the contrary he insisted at first that he had it. Finally, he said that he could not read or write and had been unable to find the contract, but had caused no one else to look for it. In the face of this inadequate showing of diligence to discover and produce the contract, over the objections of plaintiffs, he was permitted to testify generally, as to what he "bought" of Kimbrow, obviously commingling his claims and possession thereunder with his claims and possession under the patent acquired December 29, 1910. We quote as follows from his testimony:

"Q. How much did you have...