Atkison v. Dixon

• Decision Date: 31 October 1879
• Citation: 70 Mo. 381
• Parties: ATKISON v. DIXON, Appellant.
• Court: Missouri Supreme Court

70 Mo. 381

ATKISON

v.DIXON, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Bates Circuit Court.--HON. WM. S. SHIRK, Judge.

REVERSED.

W. P. Johnson, E. J. Smith & Riggs for respondent.

A. Henry for appellant.

NAPTON, J.

This was an action of ejectment to recover lot 4, in block 11, in the town of Butler, Bates county. The answer set up an equitable defense and pleaded also the statute of limitations. The case was submitted to the court, and the finding of the court was against the equitable title claimed by defendant, and against the adverse possession; and the judgment consequently was for plaintiff, from which defendant has appealed to this court.

Both parties claimed under Thos. Rice. The plaintiff relied on a deed, with warranty, from Rice to J. D. Wright, conveying the lot in question, in consideration of $120, dated May 16th, 1864, and recorded on the 13th day of June, 1864, and a quit claim deed from Wright and wife to himself in consideration of $150, executed on the 3rd day of December, 1868, and recorded on the 28th day of March, 1874. The defendant's equitable title was based on a title bond of Rice, the original and undisputed owner, made in October, 1857, acknowledging a sale to defendant, Dixon, for $750, and the payment of $400 in hand and his note for $350, due in December, 1857, and agreeing on payment of the purchase money to make a deed. The plaintiff's title, as stated heretofore, was based on a deed from Rice, the owner, to one Wright, in May, 1864, and a quit claim deed from Wright, in 1868, and upon the failure of defendant to prove his payment in full of the purchase money. A variety of instructions were asked and given, which we do not propose to notice, since it is clear that abstract propositions of law were not so much involved as the application of them to the facts in evidence.

That defendant, Lewis Dixon, purchased this lot in 1857, of Rice, the owner, is not disputed, and that he had a title bond for a conveyance when the purchase money was paid. That defendant, Dixon, took possession at that time, and that whatever possession there was ever since, if any, was by Dixon, as principal or agent for others to whom his equitable title passed, seems equally undisputed

This defendant, it seems, went off from Bates county during the war of 1861, and was disabled from active work since; but in 1867, after his return, he instituted a suit against Rice, the original owner from whom he bought, and Wright, who had a deed for the lot in controversy from Rice. In this suit he charges that he paid Rice in full, and the answer of Rice admits the payment of $400, and admits the payment of about $320 more on the note for $350, and admits that he sold to Wright for $120, but that he was convinced since the sale that he was mistaken, and offers to convey upon the payment of the balance which he claims to be still due. Wright's answer is to the same effect, and the judgment of the court was that there were $50 yet due, and that upon its payment a deed should be made. This judgment was in 1870. Before this suit was commenced, Dixon had returned from the South, and seems to have met a friend in Benton county named Yancey, to whom he sold this lot and other small pieces of land in Bates county for $900, but the description in the deed of the lot in controversy was lot 4, in block 11, in the county of Bates. The words “town of Bates” were omitted. The deed was executed on the 17th day of September, 1866, so that the suit subsequently brought in 1867 had for its object to enable him to convey the legal title to Yancey. On the 3rd day of September, 1873, Yancey and wife, by a quit claim deed, conveyed to Mrs. Elizabeth Dixon this lot and other property in Bates county, some of which had been previously conveyed to Yancey by Dixon, for $2,500.

These are the principal conveyances, or attempted conveyances, and their dates. The oral testimony, however, will best explain their connection, and upon the facts disclosed or established by the evidence, the merits of the case depend. I copy from the record the testimony of the defendant, Dixon: I bought the lot (4 in block 11, Butler, Bates county, Mo.,) of Thos. Rice, in 1857; I went into possession at the time I bought it, and had actual possession till the war broke out in 1861; there was a building on the lot when I bought it--in fact there were two--a blacksmith shop and another unfinished building, which I had finished; in 1858 I rented it to a company of ten men for a printing office; Jacob D. Wright was one of the company; two men, named Green and Maxwell, run the office until some time in 1860; the company paid me but little rent, and I, finding the office was about to break up in 1860, attached the press and other parts of the office for rent; I was gone away during most of the time of the war; I was taken prisoner, and confined in prison about two years during the war; after the war the frame for shoeing oxen, which was attached to the blacksmith shop on the lot, remained there; it belonged to me; also the casting of the old printing press and fixtures remained on the lot; the building was burned during the war. I got very much in debt during the war, and was obliged to sell my property in order to pay my debts. I came up from Benton county, in this State, with Yancey, to visit my property in this county (Bates). I offered to sell this lot at that time to John Atkison, the plaintiff, and to Jacob D. Wright and others. In a conversation with Atkison, before I sold the lot to Yancey, I showed Atkison my title bond from Rice, which I had with me during the war. The time I was away from Butler I sent money here to pay taxes on my property.

Some time in 1866, I sold this lot, with other lands, to Yancey; 40 acres of timber and a six acre tract, and the lot where Mills' shop now stands, all sold at the same time. Yancey was to pay me $900 for the property he bought of me; $400 he paid me, and paid the balance by assuming my debts in Benton county, and releasing me from them. He settled one note I owed James Summers of $110; one note I owed McIntire of $60; another note to a man named Bickey for $100; another that Yancey held, I don't now recollect how much it was; and one Dr. Shadwick held, but I can't remember how much it was. I don't know where Yancey got the money to pay me, or to pay my debts. I know he paid me $400, and I was released from $500 or over of my debts by him. Yancey was not my son-in-law at the time I sold to him my property in Bates county. I was security at that time for about $600. I sold to Yancey in September, 1866. I don't know when Yancey paid these debts. In 1867 Yancey built a blacksmith shop on the lot for a man named Neighbors; and the shop stood on the lot till the fall of 1875, when it was removed by the order of Elizabeth Dixon.

Some time after Yancey bought of me he moved back to Benton county, and left me in charge of the property as his agent. I rented the property as his agent, and collected the rents till some time in 1872. Yancey then sold the lot, with some other property, to Elizabeth Dixon, for $2,500. She paid him $600 down, and paid the balance some time before September, 1873, when she got her deed for it from him. I know she paid him all up in 1873, before she got her deed from Yancey. She owned 40 acres of land aside from her farm, which she sold and applied on what she owed Yancey. She also raised on her farm over 600 bushels of wheat in 1873, which she sold, and paid to Yancey the proceeds, $700. She also boarded all the hands Judge Clem and myself had during the time we were running the mill; board amounted to some $500. She also furnished the brick material in the court house in Butler, amounting to $500. She also sold about $500 worth of hogs in 1873, to Martin & Linn, the contractors who built the court house. At the time she bought of Yancey she paid him $550, $500 cash, (I counted it,) and $50 she let him have an order for on Mr. Brockman, and she let him have a wagon; and before he went back to Benton county she let him have some stock--two horses, one set of harness and two plows; this property, I should think, worth $250 or $300 at that time. Yancey was at this time my son-in-law, and had been carrying on the farm of my wife. I have always lived at home, that is, my wife and I have never been separated. I did not do any work on the farm. I directed the boys how to do the work as agent of my wife. I have not been able to work since the war. This sale by Yancey to my wife was in 1871 or 1872. I cannot remember dates well. Mrs. Dixon did not get a deed at the time she bought; she got a deed about a year afterwards, and some time after she got the deed, I can't say how long, there was something to do to it. They fixed it I believe sometime in 1873 or 1874. I brought suit against Rice and Wright to get a deed as my bond called for; I had made a warranty deed to Yancey, and I wanted to make my title good to him; I thought I had paid Rice up when I brought the suit. As I understood it, the judge said I had to pay Rice or Wright, or some of them, $50, and they were to make me a good deed to the lot. John Atkison told me that the $50 was coming to him, as he had bought out Wright's claim; he did not tell me that he had a deed from Wright; he offered me a quit claim deed from Wright, and I would not receive it because it was not a warranty deed such as my bond called for. Charles Denny paid $25 to plaintiff, Atkison, for me, to be applied on that $50 that was ordered to be paid by the court, and I let Atkison have thirteen bushels of rye worth $1 a bushel, and 150 pounds of flour worth $4, and four or five loads of squared stone, which he built in his house, worth $5.50 a load. I have paid him the $50, and more too; Atkison never paid me for the rye, flour or stone; I never asked him for pay, as I thought it was to apply on the $50 to be paid to him. My wife never inherited any property or...