Bevier v. Graves

• Decision Date: 03 June 1919
• Docket Number: No. 19879.,19879.
• Citation: 213 S.W. 74
• Parties: BEVIER et al. v. GRAVES.
• Court: Missouri Supreme Court

213 S.W. 74

BEVIER et al. v. GRAVES.

No. 19879.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Action to quiet title by Anna Bevier and another against F. P. Graves. From a judgment for plaintiffs, defendant appeals. Affirmed.

Abbott & Edwards, of St. Louis, John H. Keith, of Ironton, and Lister M. Hall, of St. Louis, for appellant.

Arthur T. Brewster and Sam M. Brewster, both of Ironton, for respondents.

WHITE, O.

This is an action brought by plaintiffs to determine title, under section 2535, Rev. St. 1909, to a tract of land in Reynolds county, described as the northeast quarter and the south half of the northwest quarter of section 34, township 33, range 2 east. The answer pleaded the 10-year statute of limitations, the 30-year statute of limitations, and laches.

Edward Bevier, deceased, was the common source of title. The plaintiff Anna Bevier was his widow, and John Bevier, his son and only child. Edward Bevier died in 1876 in Chandlerville, Ill. He had never lived in Missouri.

The color of title under which the defendant claims begins with a sheriff's deed for taxes executed in November, 1880. It was admitted that the deed conveyed no title. It recites that in a proceeding for the collection of revenue of Reynolds county a judgment was rendered against Edward Bevier, Preston Jones, and L. E. Stevens (Jones and Stevens were parties to conveyances which had no connection with the Bevier title), for taxes assessed against the land described for the year "1876 & previous years & 1877 & 1878." The deed recites the sale of the land to A. P. Schriver, to whom the conveyance was made. Schriver's claim of title passed by mesne conveyance to Cornelius H. Smith, who acquired it in 1885. In 1902 Cornelius H. Smith and wife executed a deed of trust on the land, securing a debt to the Colonial Trust Company. This deed of trust was foreclosed, and the land sold by the sheriff, acting trustee, and conveyed to Maxwell-Crouch Mule Company December 17, 1905. The defendant acquired whatever interest he has through mesnc conveyance from the Maxwell-Crouch Mule Company. This action was brought in 1912.

The conveyance from Schriver to Smith made in 1880, the deed of trust above mentioned and the trustee's deed, and perhaps other conveyances to Smith, covered not only the land in suit, but also the east half of section 35 of the same township and range. This tract in section 35 is half a mile from the tract in dispute. The record contains an admission that Cornelius H. Smith owned no land contiguous to the tract in 34 which is the subject of the suit.

The deposition of Mrs. Bevier was taken, and she testified that Edward Bevier died in 1876, and his brother was appointed administrator of his estate. Mrs. Sevier never paid any taxes on the land, and she did not know whether the administrator had ever paid any taxes on it. A certificate of redemption from the collector of Reynolds county for taxes for the years 1860 to 1867, inclusive, was introduced, and showed the payment of the taxes by Edward Bevier for these years in June, 1868. It was agreed that a statement correctly showed the condition so far as the payment of taxes was concerned during all the time, as follows:

"Records prior to 1879 destroyed. Assessed for 1879, 1880 and 1881 in the name of Edward Bevier, sold for taxes of 1876, 77 and 78 to A. P. Schriver. By whom paid for 1879, 80 and 81 not shown. From 1882 to 1893 inclusive, assessed to A. P. Schriver. Taxes from 1882 to 1885 inclusive, taxes paid, name of payer not given except on northeast quarter for 1884 and 1885, paid by H. V. Wheeler. From 1886 to 1893 inclusive paid by C. H. Smith, assessed to C. H. Smith from 1894 to 1909 inclusive. Paid by C. H. Smith from 1894 to 1902 inclusive. Paid by Maxwell & Crouch Mule Co. from 1904 to 1909 inclusive. Assessed to F. P. Graves 1910, 11 and 12. Tax of 1910 and 11 paid by him."

It was shown in evidence that Cornelius H. Smith built a house on the tract he claimed ill section 35, separated from the land in dispute, and cleared up a part of the land. The house was occupied by the tenants of Smith and his grantees during a greater part of the time from 1901 down to the bringing of this suit.

In 1901 he erected a sawmill on the tract in 35 and cut and hauled logs to that sawmill from the tract in dispute in section 34. The sawmill was operated for about a month.

In the year 1901 he prospected for mineral on the tract in dispute. He stationed a gasoline engine there and operated a diamond drill; he erected a blacksmith shop in connection with his prospecting, and also had a tent. The blacksmith shop was a temporary affair. The tent was put over the engine when they quit work to protect it from the weather. A shalt was sunk to a considerable depth and a tripod erected. The engine was moved away about 1902. The shed, or blacksmith shop, stood on the land until it rotted down, which, however, was only a short time, something like a year. The actual work of drilling, it was testified by some witnesses, continued through only about a month. The tripod was erected for the purpose of using a pulley "to pull the drill up on." It was about 35 feet high. After the drilling was abandoned the tripod remained there for several years until it rotted down. One or two witnesses were offered, who testified that they represented the Maxwell-Crouch Mule Company in looking after the land of that company, including the land in suit. One of them testified that he cut timber on it and sold timber off of it for Mr. Smith in the years 1901-02. Another testified that in 1905 he "looked after the land" for the Maxwell-Crouch Mule Company. All he did in looking after it was that he heard trespassers were cutting timber on the land and went to see about it. He found people cutting timber, and requested them to stop, which they promised to do. He left there in the year 1906.

I. The trial court found on all issues for the plaintiff, and the question for determination here is whether there was sufficient evidence to support that finding.

As to the 10-year statute of limitations the only possessory acts of Cornelius H. Smith upon the tract of land in dispute occurred in 1900 or 1901. It could not possibly have covered a space of more than 2 years, and probably was a much shorter period. The engine he put upon the land was moved away, the shed or blacksmith shop rotted down, and the only things that remained after that were the tripod, the drill hole, and the dump of dirt thrown out. It was not shown that acts of proprietorship of any kind were exercised over those things after the drilling was ended. The trial court was warranted in finding that the acts of ownership and possessory acts were not continued for a length of time to avail the defendant under the 10-year statute.

It is true Smith claimed the land in dispute under a deed which also included in the description the tract of land of which he was in possession in section 35. `On the tract in section 35 about 1901 he erected a house and cleared some land, and these were used down to the time the suit was brought. The question is whether the occupancy of the tract in section 35 under a deed which covers the land in dispute would operate to set the statute of limitations in motion and keep it running. Section 1882, R. S. 1909, reads as follows:

"The possession, under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession," the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract."

It was held by Judge Robinson in the case of Herbst v. Merrifield, 133 Mo. 267, 34 S. W. 571, that the statute would not apply to a case where there were two tracts and the tract of which there was actual possession was separated from the tract in dispute, not in actual possession, but covered by the same deed, by a distance of about two miles. In that case a majority of the court concurred in the result only, so that it is not authority except persuasively upon that point. This court, in the case of Truitt v. Bender, 193 S. W. 838, called attention to the Herbst Case as not being authority, and declined to say whether the ruling there was correct or not,...