Billings v. Paine

• Decision Date: 12 January 1959
• Docket Number: No. 2,No. 46679,46679,2
• Citation: 319 S.W.2d 653
• Parties: James V. BILLINGS, Appellant, v. R. N. PAINE, J. Layton Pickard and James F. Ford, Trustees Under the Will of Helen L. Wilson, Deceased, Respondents
• Court: Missouri Supreme Court

Page 653

319 S.W.2d 653

James V. BILLINGS, Appellant, v. R. N. PAINE, J. Layton Pickard and James F. Ford, Trustees

Under the Will of Helen L. Wilson, Deceased, Respondents.

No. 46679.

Supreme Court of Missouri, Division No. 2.

Jan. 12, 1959.

James V. Billings, Kennett, for appellant.

Ford & Ford, Elbert L. Ford, James F. Ford, Kennett, for respondents.

EAGER, Judge.

This suit is primarily one to try and and determine title to a cemetery lot in Dunklin County; in a separate count plaintiff sought an injunction against the maintenance of corner markers on the lot, and also damages. Defendants denied plaintiff's title and in a counterclaim sought a decree adjudging title to be in them; they allege that they hold title both by mesne conveyances and by adverse possession. Upon trial to the court both the second amended petition and the counterclaim were dismissed for insufficiency of the evidence. Only the plaintiff has appealed. We shall refer to the parties as they appeared in the trial court.

On April 2, 1894, C. H. Mason filed for record an executed and acknowledged plat of 'Oak Ridge Cemetery,' consisting of eight acres of land as therein described; therein he assigned and conveyed the driveways, walks and avenues 'for the use of the public.' This plat showed the various lots and blocks by numbers, and also the drives and walkways in the cemetery; it was offered and received in evidence. As of the time of trial, the plat showed the name of 'Fred Wilson' written across lots 1 and 2, Block 144; those are adjoining lots, 2 lying south of 1. The controversy here is over lot 2. On March 27, 1896, C. H. Mason conveyed the cemetery to George W. Huskey by warranty deed. Plaintiff offered and the court received in evidence, over objections, an instrument which is the basis of plaintiff's claim; it reads as follows: 'Know all Men by these Presents, That for and in consideration of the sum of fifteen Dollars, to us paid by R. B. Shelton we have this day sold, transferred and conveyed to said R. B. Shelton Lot No. 2 in Block No. 144 in Oak Ridge Cemetery, in Dunklin County, Missouri. That this certificate is a receipt for money paid and obligates us to comply with the provisions, of Chapter 127, of the Revised Statutes of Missouri, 1889, and that this certificate obligates us to comply with Section 7317, of said Chapter. In Witness Whereof, We hereby obligate ourselves, our heirs, assigns, and executors, forever. This 20th day of June 1896 G. W. Huskey, Ruth Huskey.' The argument is now made that the identity of that certificate was not sufficiently established, but the trial court thought that it was and we agree. It is wholly unnecessary to review that evidence. There was testimony showing that G. W. Huskey had sold lots in the cemetery. From the probate records plaintiff offered the record of various documents and proceedings culminating in the conveyance of this lot by the Administrator of R. B. Shelton to plaintiff, James V. Billings. We need not recite these in detail, for no attack is made on the validity of those proceedings; defendants did object to the Administrator's deed as not properly proved and as not connected with any chain of title. The deed was identified by the notary who took the acknowledgment, and the other objections go to its weight rather than to its admissibility. The deed of the Administrator was dated and acknowledged on May 13, 1942. The consideration was sixty dollars. It was stipulated that there are no graves on the controversial lot 2, and that after the death of Fred Wilson in July, 1951, stone markers (bearing the initial 'W') were set at the south corners of lot 2. The petition alleges that this was done after January 1, 1954. It was further stipulated, as a part of defendants' case, that under Wilson's will his widow, Helen L., was vested with all of his title and interest in real estate, that she died on November 15, 1956, and by her will devised all of her title and interest in real estate to the defendants as trustees; that there are four graves on lot 1 and that the first of these was placed there at least as early as 1917. Defendant also re-introduced the cemetery plat. The foregoing constituted the evidence.

We have had some doubt of our jurisdiction in view of the authorities in Missouri and elsewhere which hold that a conveyance of a cemetery lot, though absolute in form, transfers merely an easement or privilege of burial, and that the fee title to the land remains in the grantor. Kansas City v. Scarritt, 169 Mo. 471, 69 S.W. 283; Wooldridge v. Smith, 243 Mo. 190, 147 S.W. 1019, 40 L.R.A.,N.S., 752; Mullins v. Mount St. Mary's Cemetery, 259 Mo. 142, 168 S.W. 685; Campbell v. City of Kansas, 102 Mo. 326, 13 S.W. 897, 10 L.R.A. 593; Jackson, The Law of Cadavers (1950), pp. 358-363; 14 C.J.S. Cemeteries Sec. 24; Went v. Methodist Protestant Church, 80 Hun. 266, 30 N.Y.S. 157; Robertson v. Mt. Olivet Cemetery Company, 116 Tenn. 221, 93 S.W. 574; 67 L.R.A. 118, note; Trefry v. Younger, 226 Mass. 5, 114 N.E. 1033. That status continues so long as the land is used as a cemetery; and the right of sale of the fee owner is restricted accordingly. United Cemeteries Co. v. Strother, 332 Mo. 971, 61 S.W.2d 907, 90 A.L.R. 438. The opinion in Wooldridge, supra, indicates that this right of interment is not strictly an easement. However, it is, in any event, an interest in real estate (Jackson, supra, p. 362). We have held that an action which directly determines a controversy involving the title to an easement, or seeks to establish an easement, or seeks to set aside an easement, is properly in this court. Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721; Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501, 503; Robb v. N. W. Electric Power Co-operative, Mo., 297 S.W.2d 385; Peters v. Platte Pipe Line Co., Mo., 305 S.W.2d 413. On this theory we accept jurisdiction.

The plaintiff, in his brief, claims 'title or Right of Easement' by reason of the certificate to Shelton and the Administrator's deed; therein he seems to recognize the nature of such a transfer. Defendants, as representatives of Helen L. Wilson, actually claim title (so far as we can tell) by reason of the endorsement of the name of Fred Wilson on the plat, and by adverse possession. On all phases of the case the evidence is incomplete and unsatisfactory. No one with personal knowledge of the material facts and circumstances testified on either side.

The plat in question was apparently filed pursuant to Sec. 7317, R.S.Mo.1889, which is now Sec. 214.040 RSMo 1949, V.A.M.S. (All statutory citations will refer to the latter revision unless otherwise designated.) That section was as follows: 'Every person or association owning any cemetery or graveyard, not private, in which bodies are allowed to be buried, shall cause to be recorded in the proper office a plat of such cemetery or graveyard, showing its walks, ways, roads, avenues, and the number and sizes of the burial lots therein, and the names of their respective owners, so far as such cemetery has been laid out in lots and sold; and annually, on or about the first day of January, such person or association shall file for record--so as to continue from year to year the original plat until it shall show the whole tract subdivided into lots and the owners' names--a corrected plat showing new thoroughfares and places, if any have been laid out, and all lots, with the names of the owners and the size indicated on each lot, sold since the previous January first; and such corrected plat shall be recorded by correcting and continuing the original plat first recorded. (R.S.1879, Sec. 6577.)' It will be noted that this section did not require the recording, as such, of the conveyance of a burial lot, nor did it provide for the form of conveyance. By way of analogy only, we note that since 1893 (Sec. 5851, R.S.Mo.1899) ¹ cemetery lots owned by cities of the third class might be conveyed by certificates which should vest in the 'purchaser, his or her heirs and assigns, a right in fee simple to such lot for the sole purpose of interment * * *.' Similar statutes governed cities of the fourth class. Sections 5972 and 5973, enacted in 1895. ² The general sections governing 'Burial Grounds,' applicable to all towns, cities and villages (Secs. 942, 943, R.S.Mo.1889) ³ authorized the purchase and holding of land for cemeteries, and the conveyance of lots therein 'by deed signed by the mayor * * * attested by the city clerk * * *,' with the further provision that the deed should vest in 'the purchaser, his or her heirs and assigns, a right in fee simple * * * for the sole purpose of interment * * *.'

It seems clear that the conveyance or transfer of a cemetery lot in a public cemetery, as this undoubtedly was, does not constitute the conveyance of a fee simple absolute, and that the instrument need not, of necessity, comply with the formalities of a deed of real estate generally. Mullins v. Mount St. Mary's Cemetery Ass'n, 259 Mo. 142, 168 S.W. 685; and see the Missouri statutes cited, supra. While this is somewhat anomalous, it seems to be the general law. 14 C.J.S. Cemeteries Sec. 24, p. 84; Robertson v. Mt. Olivet Cemetery Company, 116 Tenn. 221, 93 S.W. 574; Hughes v. Harden, 194 Okl. 307, 151 P.2d 425; Trefry v. Younger, 226 Mass. 5, 114 N.E. 1033; People ex rel. Coppers v. Trustees of St. Patrick's Cathedral, 21 Hun 184; Corkill v. Calvary Cemetery Ass'n, 15 Ohio Supp. 64. 'Certificates' of sale and transfer have often been recognized; see the cases just cited, and also Monett Lodge No. 106, I.O.O.F. v. Hartman, 185 Mo.App. 148, 170 S.W. 670.

We have held that the certificate issued to Shelton was sufficiently identified; the probate proceedings in his estate fairly show his possession of the certificate at his death. We may presume a delivery to him from that possession. 17 C.J.S. Contracts Sec. 581, p. 1220; Laughlin v. March, 19 Wash.2d 868, 145 P.2d 546; First...