Brown v. Hartford

• Decision Date: 18 March 1903
• Citation: 73 S.W. 140,173 Mo. 183
• Parties: BROWN et al. v. HARTFORD et al.
• Court: Missouri Supreme Court

73 S.W. 140

173 Mo. 183

BROWN et al. v. HARTFORD et al.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

ADVERSE POSSESSION — COLOR OF TITLE — TAX DEED.

1. A tax deed based on an assessment to one not the owner of the land, and which contains no recitals showing that the statutory requirements had been complied with, but instead states the conclusion of the collector that he had "advertised said real estate for sale according to law," is void on its face.

2. Defendants, in a suit commenced in 1898, claiming land by adverse possession under color of title, showed a deed from one who held a tax deed void on its face, and possession from July, 1870, to 1879 or the spring of 1880. They paid no taxes from 1880 to 1891, and the land was wholly vacant and unoccupied during

that time, except that in 1884 they got some wood from the land, and in 1888 tried, but failed, to rent it. In 1892 they leased it for five years to a tenant, who took possession. From 1879 to 1892 the land was unimproved, uncultivated, and practically unfenced. Held, that defendants failed to show title by 10 consecutive years of open, adverse, notorious, exclusive, and uninterrupted possession.

3. Rev. St. 1899, § 4266, providing that possession under color of title of a part of a tract of land, in the name of the whole tract claimed, and exercising the usual acts of ownership over the whole tract so claimed, is deemed possession of the whole tract, has no application where the claimant has not had possession of any part of the tract for the necessary period.

Appeal from Circuit Court, Dekalb County; A. D. Burnes, Judge.

Action by Stephen S. Brown and others against James C. Hartford and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Ejectment for the west half of the northeast quarter of section 33, township 58, range 30, in Dekalb county. The suit was instituted August 3, 1898, and the ouster laid as of March 1, 1895. Originally, Hartford was the sole defendant, but he disclaimed, and pleaded that he went into possession as the tenant of John and Rufus Carp, who claim to own the land, and thereupon they were brought in as codefendants, and filed a general denial. By direction of the court the jury found for the plaintiffs for the north 40, and, as the defendants did not except to or appeal from the ruling in this regard, the north 40 will not be further considered here.

The plaintiffs showed an unbroken chain of title from the patent of the United States, dated May 1, 1843, to themselves, and, in addition, a tax title dated June 1, 1882, for taxes, as to the south 40, for the years 1870, 1873, 1874, 1875, and 1876.

The defendants introduced a tax title, dated May 27, 1868, for taxes, for the year 1863, from the collector to J. B. Conley; a quitclaim deed from J. B. Conley to Geo. Conley, dated April 11, 1870; a quitclaim deed from Geo. Conley to B. F. Chisham, dated June 17, 1870, conveying the south 40; and a quitclaim deed from B. F. Chisham to Daniel Carp, dated July 14, 1870, conveying the south 40. The defendants are the sons of Daniel Carp, who lived on the land from July, 1870, when he purchased it, until September 13, 1872, when he died. The defendants also claim title by limitation. The testimony shows that the land is mostly rough, poor land, with deep ravines, and steep, rocky bluffs; that it was entirely denuded of timber by the Hannibal & St. Joseph Railroad, the former owner, for cross-ties, etc., used in the construction of its road in the winter of 1868; that a growth of small oak trees have since sprung up on the land, suitable only for fence posts and firewood; that Daniel Carp cleared and cultivated between three and five acres of the land, and lived on it in a cabin that was originally built by the woodchoppers who cut the timber for the railroad while it owned it; that, when Daniel Carp died, he told his son John, one of the defendants herein, to stay there and take care of the family; that John remained there about a year and a half, and, finding he could not make a living there, he rented other farms in the neighborhood; that he rented the land in controversy to Wm. Moore and Jesse Whittaker, who stayed a year; then it was rented for a year to a man named Zercher; then it was rented to Bloom Reed; then to Geo. Estes; then to a man named Judd, who stayed part of one summer; then some one tore down the cabin that was on the place — there is some evidence that the defendant did it — and sold the timber. During the years from 1872 to 1879 or 1880 the defendant John Carp, who seems to have managed the affair for the defendants, rented various farms in the neighborhood of this land, and claims that when this land was not rented he used it in connection with the various farms he lived on, cut fence posts and firewood off of it, and sold timber that he cut from the land, and that he piled up the brush so as to let the grass grow and make the land available for pasturage. In 1879 or 1880, John moved to the edge of Caldwell county, and stayed there for two years, during which time no one seems to have been in the possession of the land. Then John moved back to a farm in the neighborhood, and says he again used the land to get fence posts and firewood therefrom. He remained a year, and then moved to another farm about two miles from this land, and his brother and brother-in-law got wood and posts from the land. From 1884 to 1890, John appears to have lived on the Smith place, which was about two miles from this land. In 1888 he leased it to Jack Curtis. In 1890 he moved to Caldwell county, about six miles from this land. In 1892 he leased it to the defendant Hartford for five years, and he put up fences around the land, and has been in possession ever since. The defendants showed that they or those under whom they claim, or who hold under them, paid the taxes for the years 1872, 1878, 1879, 1880, 1891, 1894, 1895, 1896, 1897, and 1898. The plaintiffs showed that they had paid the taxes for the years 1892 and 1893. In April, 1885, the defendant Rufus Carp wrote to the plaintiff Putnam, about some land. The letter is not in the record, so it is not clear what land it referred to. Putnam answered, saying, if Carp referred to the land in controversy here, he, Putnam, owned it, and Carp had no claim on it, but he would sell it to him for $1,440. The tax deed from the collector to J. B. Conley, dated May 27, 1868 (under which the defendants claim), recited that the land was assessed to John Duff, and that the collector had "advertised said real estate for sale according to law, to pay and satisfy said taxes and the penalties."

Brown & Dolman, for appellants. Wm. Henry and Hewitt & Blair, for respondents.

MARSHALL, J. (after stating the facts).

The tax deed to Conley was void on its face, because it contained no recitals showing that all the statutory requirements had been complied with. The statement in the deed that the collector had "advertised said real estate for sale according to law" was a mere conclusion of the collector, and not a recital of the statutory requirements which were necessary to give validity to the deed. Burden v. Taylor, 124 Mo., loc. cit. 21, 27 S. W. 349; Loring v. Groomer, 142 Mo., loc. cit. 8, 43 S. W. 647. In addition to this, the land was assessed to John Duff, who never had any title whatever to the land. At the time of the assessment and sale, the title was shown by the records to be fully vested in John L. Lathrop. Therefore that tax deed was insufficient to pass any title to Conley, and the defendants, who claim under him, got no title from him.

2. The defendants, however, claim title by limitation, and invoke the Conley tax deed as color of title. The defendants' father held under a quitclaim deed from Chesham, dated July 14, 1870, and Chesham held under a quitclaim deed from George Conley, who held under a quitclaim deed from J. B. Conley, the grantee in the tax deed. The defendants' father went into possession in 1870, and held it until his death on September 13, 1872. This defendant John Carp held the possession for a year...