Callahan v. Davis
| Decision Date | 24 February 1891 |
| Citation | 15 S.W. 433,103 Mo. 444 |
| Parties | Callahan v. Davis et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- S. R. Beech, Esq., Special Judge.
Reversed and remanded.
Johnston & Craig for appellants.
(1) The defendants not being in possession at the commencement of this suit, but the land being at the time in the possession of James Carroll, the finding and judgment of the court were erroneous. Bledsoe v. Simms, 53 Mo. 305; Clarkson v. Stanchfield, 57 Mo. 573; Sutton v Casseleggi, 77 Mo. 407; Callahan v. Davis, 90 Mo. 83; Shaver v. McGraw, 12 Wend. 558. (2) The finding of the court is against the evidence and the weight of the evidence.
William Ellison for respondent.
1 Plaintiff proved the legal title to all the land for the possession of which he obtained judgment. (2) The instructions given by the court were proper.
This is an action of ejectment. As originally commenced, on May 28, 1881, respondent claimed the possession of one hundred and sixty acres, west half, southwest quarter, section 13 and east half southeast quarter, section 14, township 63 range 35, in Nodaway county. The case was tried and resulted in a judgment for respondent, from which an appeal was taken to this court, and the judgment reversed at the October term, 1886. Callahan v. Davis, 90 Mo. 78, 2 S.W. 216.
At the June term, 1887, of the Nodaway circuit court plaintiff filed an amended petition, in the statutory form for ejectment, to recover the east half of the southeast quarter of section 14, township 63, range 35, excepting a portion of thirty-five acres that had been occupied by one Carroll, at the commencement of this action. The answer was a general denial. Jury was waived and judgment for respondent.
On the trial the evidence was uncontradicted, that at the commencement of the original suit the defendants were not in the actual possession of any portion of the one hundred and sixty acres described in the first petition.
To show constructive possession in appellants, however, the respondent introduced a tax deed, dated January 24, 1879, from the treasurer and ex-officio collector of revenue of Nodaway county, P. J. Keeler, to Perry H. Talbott and A. P. Morehouse, to all the said one hundred and sixty acres, which had been duly recorded. Respondent then read in evidence a quitclaim deed from Morehouse to Talbott, dated November 4, 1879. Next the will of Perry H. Talbott, duly probated, appointing Mrs. Belle Talbott, his widow, his executrix, with power to sell the land, and then a deed from Mrs. Belle Talbott as executrix to defendants below, or appellants here, of date, February 17, 1881.
Respondent claimed the right to maintain the ejectment, by virtue of section 222, 2 Wagner's Statutes, 1872, page 1207, and the recording of said tax deed. The appellants denied such constructive possession of the land, and claimed the statute then in force did not raise such constructive possession in them while Carroll was in the actual possession under a lease from Mrs. Talbott prior to their deed from her. Respondent also offered evidence to prove the tax deed was void.
When this cause was here before, it was ruled on the case then made, that the defendants were not in possession of the premises when the suit was begun, and that the constructive possession would not avail against the actual possession of Carroll. In the case now made, it is sought to avoid that difficulty by dismissing as to the thirty-five-acre tract, and offering evidence to show that Carroll only occupied the thirty-five acres.
Appellants, however, claim that there is not a scintilla of evidence that they were in possession of any portion of the land or made any claim to any portion of it until six months after the suit began. The evidence shows that Mrs. Talbott, prior to conveying the lands to defendant Davis, made a written lease of the one hundred and sixty acres to Carroll, the term to commence December 1, 1880, and end December 1, 1881. There is some dispute as to the terms of the lease in some particulars as it has been lost since the first trial, but we think it would be going entirely too far to ignore the testimony of Mrs. Talbott, of Carroll and Davis, and the recital in the first bill of exceptions, and say there was not a lease of the whole one hundred and sixty acres.
Under this lease Carroll took possession of the whole. He only cultivated the thirty-five acres, but his right of possession was good to the whole. There was some rebuttal evidence tending to prove that Carroll only claimed the thirty-five acres. This conversation was after he had been notified of this suit, and he simply said he had no interest outside of the inclosure. Being a mere tenant and dependent for payment for his improvements upon the crops he was to make, he naturally declined to go forward pending the litigation. This character of the evidence cannot destroy the written lease. No one acted on it.
Under this state of case:
I. The court at the instance of the plaintiff gave four instructions, the first of which simply declares the effect of the deeds read in evidence through which the plaintiff derives title; the second declares the quantity of land conveyed by said deeds; and the fourth declares that the tax deed read in evidence does not embrace the east eighty-acre tract of the one hundred and sixty acres leased to Carroll, and hypothecates a case in which the tax deed would be void as to all the land. It is, therefore, not deemed necessary to copy them in full.
An exception was saved as to instruction, numbered 3, which is as follows, to-wit:
II. Defendants asked the court to declare the law of the case as follows, which the court refused and defendants saved their exceptions, to-wit:
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