Baxter v. Vasquez
| Decision Date | 18 September 1973 |
| Docket Number | No. 34745,34745 |
| Citation | 501 S.W.2d 201 |
| Parties | Theresa E. BAXTER, Plaintiff-Appellant, v. Leo VASQUEZ et al., Defendants-Respondents. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Norman W. Drey, Jr., Klamen, Summers, Wattenberg & Compton, A. G. Schumacher, Andrew F. Tegethoff, Jr., Clayton, for plaintiff-appellant.
Boyle, Priest, Elliott & Weakley, St. Louis, for defendants-respondents.
A quiet title action. Plaintiff brought this action to quiet title to 92.7 acres of land in north St. Louis County. Defendant counter-claimed asking the court to quiet title to 300 acres which he asserted encompassed the 92.7 acres claimed by plaintiff. Both parties asked for damages. The Circuit Court entered judgment for defendant on his counter-claim and adjudged the claims of plaintiff to be 'invalid, groundless, and void.' The court also found no evidence upon which to grant defendant monetary relief. Plaintiff has appealed.
Plaintiff's petition asserts title in plaintiff based both upon a claim of adverse possession and upon a series of deeds (Conveying the property among Paul Aubuchon, his heirs, and plaintiff and her husband). Defendant claims title to the 300 acres based upon a chain of title ending with Hugo and Alvena Essen and a conveyance to defendant from the Essens.
The 92.7 acres claimed by plaintiff lies in Township 47 North, Range 5 East in St. Louis County being northwest of Aubuchon Road. This land would lie in Survey 147 of St. Ferdinand Common Fields if that survey were projected northwest of Aubuchon Road to the Missouri River.
Paul Aubuchon had farmed some of the land which plaintiff is now claiming and had removed timber from it about twenty years prior to the time plaintiff instituted this action. The Teson family had been farming it lately and had been paying rent to plaintiff. Paul Aubuchon never lived on the 92.7 acres nor had he fenced any of it.
Elmer Teson testified that he lives in this area and that he considered the 92.7 acres to belong to plaintiff. Defendant had used his construction equipment to clear some of the acreage at the request of Elmer Teson but had never sent a bill for this work.
Donald Teson gave testimony essentially equivalent to that of his brother Elmer. In addition, he stated that, while defendant was clearing the land at his brother's request, defendant told him that he could plant anywhere because defendant owned all this land.
Plaintiff's son, Clarence Baxter had used the land claimed by plaintiff as a dump for scraps from his nursery business. He had been on the land an average of once or twice a week since 1950 and had cut timber twice in that time. He and his father had surveyed the land, but he had not retained their calculations nor was he a qualified surveyor.
Lloyd Wurdack, plaintiff's witness and vice president of American Title Insurance Company, testified that he had examined the title from 1950 to the present relative to a deed dated September 26, 1950, from the heirs of Henry Aubuchon to Mr. and Mrs. C. Gordon Baxter (plaintiff and her deceased husband). He stated that a deed from Hugo and Alvena Essen to the defendant had been recorded on October 18, 1950, and the land conveyed by that deed included the land described in the deed to the Baxters. In response to a question by the court, plaintiff's attorney also stated that the land in the deed to defendant included the land claimed by plaintiff.
On cross examination Mr. Wurdack testified that the deed to the Baxters described the land as being a tract bounded on the east by the center line of Aubuchon Road and on the north by the north line of Survey 148. Defendant's attorney adduced evidence consisting of a survey prepared by the county engineer showing that the lines of the surveys mentioned end at the low water mark of Cowmire Creek and do not continue to the Missouri River leading to the conclusion that the deed to the Baxters contained a misdescription.
There was additional testimony of county government personnel to effect that C. Gordon Baxter had applied, in 1955, for a permit for a land-fill on the 92.7 acres. Pursuant to this request, his name had appeared as owner in the notices published in the newspaper and those posted on the property.
In addition to the above, plaintiff's evidence consisted of real property tax receipts for the 92.7 acres for the years 1950 through 1968; the probate records of the estates of both Paul Aubuchon and Martin Aubuchon; various aerial photographs upon which Clarence Baxter had made notations; several deeds evidencing conveyances from Henry and Louise Aubuchon to the Baxters and between the Baxters and the heirs of Paul Aubuchon; a court file from the case of Essen v. Adams, which case had also involved the land in question here (this was admitted only as it applied to Paul Aubuchon).
Mr. John Gerlach, an employee in the Recorder of Deeds Office of St. Louis County testified for the defendant. He brought the official books and records with him. He read into the record the contents of several deeds and patents contained in these books. The purpose of this evidence was to show a chain of title to the land in question ending in Hugo and Alvena Essen. Also, the deed from the Essens to defendant was read into the record. All the deeds and patents were referred to by the book and page number. The court granted defendant's attorney permission to provide copies of the deeds which would, once identified be substituted for the books as the defense exhibits. The court later admitted these exhibits into evidence after a showing of identification.
Paul Vasquez, defendant's cousin, and Fred Kruse both were employed by defendant. Both testified to their familiarity with the land which plaintiff was claiming and their having been on the land several times. Both stated that they had seen neither private property signs posted on the 92.7 acres nor a road leading back into that property from Aubuchon Road.
Defendant testified that he was not claiming the land shown in Exhibit 1 which consisted of 9.64 acres between Aubuchon Road and the low water mark of Cowmire Creek and opposite Surveys 146 through 150. He stated that he had been sued for the taxes due on the 92.7 acres and had paid those taxes. Defendant also testified that he had never seen anyone farming the 92.7 acres except the Tesons; that he had given permission to them to farm that land; that he had not billed them for the clearing because he was merely clearing his own land; that he had not known that they were paying rent to plaintiff for the use of this land until the commencement of this action; and, that no person has ever told him he could not be present on this property.
Additional evidence offered by the defendant was the March 1, 1944 entry in the probate file of Paul Aubuchon showing that he was declared of unsound mind and incapable of managing his own affairs. Plaintiff's attorney then established that this same file contained an inventory dated March 9, 1944, which included an entry of a 118 acres tract in Survey 147 of the Common Fields of St. Ferdinand and that no objection to this inventory was indicated in that file.
At the close of defendant's case, the court took the case as submitted on memoranda of the parties. Thereafter, the court prepared extensive findings of fact, conclusions of law, judgment, order, and decree. We will, for the sake of brevity, include only those portions necessary for this appeal and for the precedential value of this case.
The court's statement of the case includes the following:
1. Plaintiff and her late husband procurred from Paul Aubuchon's heirs, individually, warranty deeds to their respective interests in the land which Paul Aubuchon owned east of Aubuchon Road and the 92.7 acres lying within projections made by Paul Aubuchon's surveyor traversing Essen's land in Township 47 North, Range 5 East. These deeds were recorded September 26, 1950.
2. Plaintiff then exchanged deeds with Henry Aubuchon, one of Paul Aubuchon's heirs, and his wife. Plaintiff and her late husband conveyed all the property which they received pursuant to the above mentioned deeds to the Aubuchons and took in exchange two deeds from the Aubuchons which effectively divided that land into the land east of Aubuchon Road (contained in the first deed) and the 92.7 acres west of Aubuchon Road (contained in the other deed).
3. Essen was farming all arable portions of his 1400 acres, including the 92.7 acres, and the Baxters never attempted to interfere with his use.
4. Essen conveyed 300 acres to defendant which included the 92.7 acres. The deed was recorded on October 18, 1950. (This deed was dated October 2, 1950).
The court made the following findings of fact:
1. Essen was the title holder of record of approximately 1400 acres of land in Township 47 North, Range 5 East in St. Louis County by virtue of the documented transactions, the validity of which are uncontested, minutely detailed in the record.
2. Essen was title holder in possession of the land described in Essen's deed to defendant dated October 2, 1950 (with some minor exception to be later noted).
3. Aubuchon is not shown to have committed any act to oust Essen of his possession of any part of the 1400 acres nor to have occupied the land exclusively, hostilely, and continuously for the statutory period. His 'sporatic sorties' onto the land lying west of his property did not constitute the elements necessary to show adverse possession.
4. Aubuchon paid no taxes on the land in Township 47 North, Range 5 East.
5. The listing of the 92.7 acres in Aubuchon's estate inventory is unsupported by other facts in evidence and, coupled with Aubuchon's failure to claim the land, does not constitute competent and substantial evidence.
6. Defendant by his acts of farming, grading, and giving...
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