Brooks v. Roberts

• Decision Date: 01 June 1917
• Docket Number: No. 18566.,18566.
• Citation: 195 S.W. 1019
• Parties: BROOKS v. ROBERTS et al.
• Court: Missouri Supreme Court

195 S.W. 1019

BROOKS v. ROBERTS et al.

No. 18566.

Supreme Court of Missouri, Division No. 1.

June 1, 1917.

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

Suit by W. M. Brooks against T. A. Roberts and others. From the decree rendered and from orders overruling their motions for a new trial, both plaintiff and certain defendants appeal. Reversed and remanded, with directions.

This suit was brought to the November term, 1912, of the Reynolds circuit court to quiet title to the north half of section 23, township 33 north, range 1 east, located in said county. The petition is in the ordinary form under section 2535, R. S. 1909. It alleges that plaintiff owns said land; that each of the defendants claim an interest therein, either fee-simple or otherwise. The court was asked to ascertain and determine the estate, title, and interest of the parties herein.

Defendants Ellen M. Cook and Emma E. Brigham filed an answer claiming said land, and alleged therein that the patentee, John Conner, conveyed the same to Howard Ward in 1859; that said deed and the record thereof were destroyed by fire; that the Conner heirs, under whom plaintiff claims title, are not heirs of John Conner, who entered said land. They allege that they and their ancestor, Martin F. Brigham, have been in constructive possession of said land since 1859; that they have paid the taxes thereon and have exercised ownership over the same during all of said time; that John Conner has been guilty of gross laches, and should now be barred from maintaining any claim to said land. Defendants Elizabeth, Edward, Willie, and John Conner, filed a separate answer, but did not appeal.

The record discloses that on September 1, 1859, a patent to said land was issued by the United States to John Conner, of St. Louis county, Mo. No deed, or record of a deed, was read in evidence by either plaintiff or defendants, from John Conner to any one.

Plaintiff's Title.

Mrs. Esther V. Conner, 72 years of age, testified in behalf of plaintiff that on October 15, 1856, she and John Conner were married at Canton, Iowa; that he died at Metropolis Ill., October 7, 1901; that they lived in Canton two days after said marriage, moved to Quincy, Ill., and lived there about three years; that they then moved to St. Louis, Mo., and lived there five or six years; that they then moved to Cincinnati, Ohio, and lived there about three years; that when they lived in St. Louis her husband was a steward on a steamboat running between St. Louis and New Orleans; that she heard her husband say lands were cheap in Missouri, and he thought he would invest. She testified, that she never signed any deed to lands he owned in Reynolds county, Mo. On cross-examination she testified, that she never knew of John Conner entering any land in Reynolds county, Mo.; that she never knew of his having a patent to the land aforesaid; that she did not know the numbers of said land; that she never knew of anybody in St. Louis by the name of John Conner except her husband and son; that she never knew of her husband paying any taxes on the above land; that she and the heirs of her husband executed a deed to plaintiff for said land; that she never knew or heard of Howard Ward, of St. Paul, Minn.; that her husband never kept her informed as to his business transactions; that at the death of her husband his papers were either at the house or at the store in the safe; that among his papers she never saw a patent, deed, tax receipt, or any other paper pertaining to Reynolds county, Mo., land; that all of her husband's papers were destroyed by fire in 1900; that they moved from Quincy to St. Louis about 1858 or 1859.

Plaintiff then offered in evidence a quitclaim deed from Esther V. Conner and her children by John Conner (except Ella Conner Craig and her heirs) to plaintiff for the land in controversy. The expressed consideration in said deed is $25. Plaintiff also offered in evidence a quitclaim deed from Lester Craig, sole heir of Ella Conner Craig, in which his wife joined, conveying said land to plaintiff in May, 1913. This was all of plaintiff's evidence.

Defendants' Evidence.

Defendant Ellen M. Cook testified that she was 71 years old; was the widow of Thos. D. Cook and daughter of Martin F. Brigham, who died October 17, 1897, at Boston, Mass., intestate; that Martin F. Brigham, at the time of his death, left no wife living, but three children, as follows: Francis H. Brigham, Emma E. Brigham, and herself. She testified that at the time of his death Martin F. Brigham had in his possession the title deeds to the land in controversy; that she often saw them in 1860 or 1861; that she remembered particularly the patent from the United States to John Conner, signed by President Buchanan; that she saw the deeds again in her father's house between 1872 and 1875, and that she again noticed said patent; that her father kept the deeds in a bureau drawer, and on different occasions used to take them out and talk about the lands in Reynolds county, Mo.; that she saw the deeds from time to time until her father's death, and after his death saw them in possession of Francis H. Brigham, who in 1904 deeded his interest in the above land to her; that her deed was delivered to her husband, who died in 1906; that after his death a fire occurred at his place of business, and she never saw the deeds thereafter; that she has paid taxes on said land since the death of her father in 1897; that her father, to her personal knowledge, paid taxes, and received receipts for taxes on that property for many years prior thereto.

Emma E. Brigham testified in substance substantially the same as her codefendant Ellen M. Cook.

Walter F. Cook, a son of defendant Cook, testified substantially the same as his mother.

Defendants read in evidence the patent from the United States to John Conner, heretofore mentioned, covering the land in dispute. They also offered in evidence the record of a warranty deed from Howard Ward and wife to George Young, dated August 23, 1859, acknowledged in Minnesota. Said deed was first filed for record in Reynolds county, Mo., May 7, 1860, and again filed for record May 20, 1887, the same day the above patent was filed. We presume, from the remarks of counsel in the record, that the Howard Ward deed to Young described the land in controversy. This deed was excluded at the instance of plaintiff, and an exception saved to the ruling of the court thereon.

The defendants offered in evidence a deed from George Young to Edward Chapman, dated March 6, 1860, which was first recorded in April, 1860, and recorded the second time in November, 1878, conveying the same land. This deed was likewise excluded, and an exception saved to the ruling of the court thereon.

Defendants offered in evidence the record of a deed from said Chapman to Martin F. Brigham, conveying the land aforesaid, dated March 30, 1860. It was first filed for record April 9, 1860, and again filed for record November 29, 1878. This deed was excluded, and an exception saved to the ruling of the court.

Defendants then offered in evidence a deed from Francis H. Brigham to Ellen M. Cook, dated January 5, 1904, conveying to her his interest in said land as heir at law of Martin F. Brigham. This deed was likewise excluded, and an exception saved to the ruling of the court thereon.

The above deeds were excluded by the court, at the instance of plaintiff, upon the ground that it did not appear from the evidence that Howard Ward and the other grantors in said deeds had any title to convey.

The St. Louis directory of 1860, offered in evidence by defendants, discloses that Catherine Conner, widow of John Conner, John Conner, a laborer, who resided between Webster and Chambers, and John Conner, a laborer, who resided between Smith and Bates, were all residents of St. Louis, Mo. The directory of St. Louis, Mo., for 1859, gives the name of Catherine Conner, widow of John Conner, and that of John Conner, who was a laborer and resided at 16 Florida. It was admitted at the trial that all the records of Reynolds county, Mo., were destroyed by fire in the burning of the courthouse in 1872.

Tax receipts were read in evidence by defendants showing that Martin F. Brigham paid the taxes on said land for the years 1897, 1898, 1899, 1900, and 1901 by the estate of Martin Brigham, deceased, for 1903 and 1908, and by Emma E. Brigham for 1904, 1905, 1906, 1907, 1909, 1910, and 1911. Defendants offered in evidence the tax books of said county, which showed that Martin F. Brigham paid the taxes on said land for the years 1886, 1892, 1893, 1894, 1895, and 1896. The tax books for some years failed to show by whom the taxes were paid. Defendants offered in evidence a letter from plaintiff, dated March 25, 1912, addressed to defendant Emma E. Brigham, in which he offered to pay defendants $600 for a deed to the land in controversy.

We have set out substantially all the evidence in the case. The cause was tried without a jury and without instructions. On May 27, 1914, the court rendered its judgment in said cause, and found that at the commencement of this suit, and at the date of the rendition of said judgment, John Conner, the entryman, was the record owner of said land, and that the plaintiff and defendants have no title or interest in the same. Both plaintiff and defendants filed motions for a new trial, which were overruled, and both parties appealed the cause to this court.

Arthur T. Brewster and Sam M. Brewster, both of Ironton, and W. A. Welker, of Poplar Bluff, for appellant Brooks. R. I. January, of Centerville, for appellants Cook and others.

RAILEY, C. (after stating the facts as above).

I. This suit was brought by plaintiff, under section 2535, R. S. 1909, against defendants to quiet title to the real estate in controversy, situated in Reynolds county, Mo. Both plaintiff and defendants claim to be the owners of said real estate. It appears from the...