Caldwell v. Stephens

• Decision Date: 31 October 1874
• Citation: 57 Mo. 589
• Parties: JOSEPH T. CALDWELL, Respondent, v. JACOB STEPHENS, et al., Appellants.
• Court: Missouri Supreme Court

57 Mo. 589

JOSEPH T. CALDWELL, Respondent,

v.JACOB STEPHENS, et al., Appellants.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Clark Circuit Court.

Dryden & Dryden, for Appellant.

Givens & McKee, C. B. Matlock, and J. G. Blair, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This is an action of ejectment, brought originally for the recovery of four-ninths of a tract of land named in the petition; but, during the progress of the case, the plaintiff abandoned all claim to the land except as to one-ninth part thereof.

The action was commenced by the plaintiff against Jacob Stephens only, the defendant Margaret Stephens the wife of said Jacob, having been made a party during the progress of the case at her own request.

The defendants file separate answers. The defendant Margaret J. Stephens states that she is the wife of her co-defendant; denies the title of the plaintiff to the land in question; says that she is the owner in fee of the land and has possession in her own right adversely to plaintiff and all others.

The said defendant, as a further defense, avers that she and those under whom she claims have had and held, actual, exclusive, open, absolute and uninterrupted possession of said premises for ten years continuously next before the commencement of the suit, and denies any possession on the part of the plaintiff or those under whom he claims during the same period, and relies on the statute of limitations. And as a further defense, said defendant avers, that she purchased said land of John W. Perkins; that said Perkins, on the 21st day of November, 1853, purchased said lands of G. W. Sheckells and others; that the plaintiff, Caldwell, was present and advised and directed the purchase by said Perkins, and wrote the deed, assuring Perkins that the title was good, and that he would acquire a good title to the land; that Perkins was ignorant as to said title, but relied on plaintiff's representations, and in good faith purchased the land; that Perkins afterwards, at the solicitation of the plaintiff, purchased in a tax title to said land, plaintiff representing to said Perkins that the purchase of said tax title would give him a perfect title to the land when taken in connection with his former deed. Wherefore, defendant insists that plaintiff is estopped from denying the title of said Perkins or of defendant who claims under him.

The defendant, Jacob Stephens, denies the plaintiff's title, as set forth in the petition; denies that he is in possession of the land, or that he ever withheld the premises from the plaintiff; after which he relies on the title of his wife, setting up substantially the same defenses relied on by his co-defendant.

A replication was filed, putting in issue the affirmative allegations of the answer. And as to that part of the answer which relies on the bar of the statute of limitations, the plaintiff replies, that he claims title under a deed executed by Jabez Brown and his wife Elizabeth, that said Elizabeth is a daughter and heir of one Peter Sheckells, who has long since been dead, and who died seized of the land in controversy; that said Elizabeth was a married woman at the time of the death of her father and so remained up to the year 1871, at the time she conveyed the land to the plaintiff.

On the trial, the plaintiff abandoned all claim to the land named in the petition except as to one undivided ninth part of said land which was purchased by him from one Jabez N. Brown and Elizabeth Brown his wife. He then, to sustain the issues on his part, produced evidence as follows:

1st. A patent from the United States conveying the tract of land named in the petition to one Peter Sheckells, dated the 1st day of August, 1838. The plaintiff then read in evidence the deposition of Jabez N. Brown, by which it is shown, that witness and Elizabeth H. Sheckells were married in the year 1849, in Randolph county, Missouri, that said Elizabeth is a daughter of Peter Sheckells; that witness and his said wife sold to J. T. Caldwell all of the wife's interest in a quarter section of land in Clark county, Mo., as heirs of Peter Sheckells; that the consideration received for their interest in the land was fifty-five dollars. The witness also stated that something near twenty years since, one John W. Perkins had been to see witness and his wife with a view to purchase their interest in the same land conveyed to Caldwell, but that they had refused to sell the land to Perkins, and had never promised him the land on any consideration or under any circumstances whatever.

The plaintiff then read in evidence a deed from Jabez N. Brown and Elizabeth Brown his wife, dated March 30th, 1871, which deed purported to convey the interest of Brown and wife, in the land in controversy, to plaintiff.

The plaintiff next read in evidence the deposition of Mrs. Elizabeth C. Sheckells. It is shown by this deposition that the witness is seventy-two years old and is the widow of Peter Sheckells; that Peter Sheckells had nine children; that Elizabeth Brown is one of them; that Elizabeth was married to her present husband Jabez N. Brown, in the year 1849, (Oct. 9th); and that she and her husband are still living; that Peter Sheckells died October the 9th or 10th, 1849.

The plaintiff then introduced evidence tending to prove the value of the rents and profits of the land in controversy and closed the evidence on his part.

The defendants on their part offered in evidence a deed purporting to be from Geo. H. Sheckells and others dated November, 21st, 1853, to J. W. Perkins, purporting to convey the land in controversy to said Perkins; said deed being offered as color of title and as defining the extent of defendant's claim. The court admitted the deed to be read as color of title, remarking that its effect and extent would be regulated by instructions.

The defendant then offered in evidence a certified copy of a deed commonly called a tax deed, executed by Allen P. Richardson, register of lands, to one Thomas D. Ford, for the land in controversy. This deed was objected to by the plaintiff because said deed failed to show how said land was advertised for sale by the Register of lands. The recital in the deed being as follows: “And the Register of lands of said State, having on the first Monday of June, A. D., 1847, advertised the said real estate for sale according to law” &c. The court sustained the objection and the deed was rejected as evidence of title in defendants, and the defendants excepted. The court then permitted said deed to be read as color of title; but not as showing the limits of the defendant's claim. The deed was then read for that purpose and is in about the usual form.

The defendant then read in evidence a deed from T. D. Ford to J. W. Perkins, dated December, 7th, 1853, for the same land; next a deed for the same land from J. W. Perkins to defendant, Margaret Stephens, dated 30th April, 1864, and then introduced evidence which tended to prove the special defenses set up in their answer, and closed the evidence.

There were several objections made and exceptions saved to the rulings made by the court in receiving and excluding evidence during the trial; but no point is made on such exceptions in this court, for which reason they have not been noticed in the statement of the case.

The court instructed the jury, at the request of the plaintiff, as follows:

“1st. The...