Campbell v. Greer

• Decision Date: 18 February 1908
• Parties: CAMPBELL v. GREER.
• Court: Missouri Supreme Court

108 S.W. 54

209 Mo. 199

CAMPBELL v. GREER.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. ADVERSE POSSESSION — DURATION — PERIOD OF LIMITATION — INSTRUCTION — SUFFICIENCY OF EVIDENCE TO WARRANT.

Evidence in an action brought in 1903, for possession of land, which tends to show that the land, title to which had emanated from the general government in 1850, had never been in the possession of plaintiff or his predecessors in title since 1871; that there had been no payment of taxes except one disputed payment in 1874; that defendant had been in lawful possession for more than a year after the expiration of 30 years from 1871; and that he and his grantors had claimed the land for more than 10 years — is sufficient to warrant an instruction on the result of plaintiff's failure to take possession or pay taxes for 30 years, under Rev. St. 1899, § 4268 [Ann. St. 1906, p. 2342], vesting title to land which has emanated from the government more than 10 years in any lawful possessor, where those claiming or who might have claimed it have not been in possession for 30 years, and have paid no taxes during that time, and bring no action to recover the land within a year from the expiration of the period.

2. ABANDONMENT — STATUTORY PROVISIONS — LEGAL AND EQUITABLE TITLES.

Rev. St. 1899, § 4268 [Ann. St. 1906, p. 2342], vesting title to land which has emanated from the government more than 10 years in any lawful possessor, where those claiming or who might have claimed it have not been in possession for 30 years, and have paid no taxes during that time, and bring no action to recover the land within a year from the expiration of the period, is applicable to legal as well as equitable titles which have emanated from the government.

3. APPEAL — REVIEW — REFUSAL OF DECLARATION OF LAW APPLICABLE TO FACTS.

Though the finding of a jury, or of the court sitting as a jury, will not be disturbed on appeal where supported by substantial evidence, yet the refusal by the court sitting as a jury of a declaration of law applicable to an issue sharply presented by the pleadings, and upon a state of facts developed at the trial which fully warrant it, will be considered as evidencing an erroneous conception of the law applicable to the facts, and as ground for reversal.

Appeal from Circuit Court, New Madrid County; H. C. Riley, Judge.

Action by James H. Campbell against Green B. Greer. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The defendant has perfected the abstract of record in this cause in compliance with the opinion of this court heretofore filed herein. 197 Mo. 463, 95 S. W. 226. From the record thus perfected it appears that plaintiff instituted this suit returnable to the March term of the circuit court of New Madrid county, the purpose of which is to have ascertained and determined the interests of the parties to 40 acres of land in that county. The petition is the usual one, under section 650, Rev. St. 1899 [Ann. St. 1906, p. 667]. By answer, defendant admits that he claims to be the owner of the land, and denies each and every other allegation of the petition. As a second defense he pleads adverse possession for the period of 10 years, and thereby invokes the 10-year statute of limitations. The third and last defense is couched in this language: "Further answering, defendant avers that the land described in plaintiff's petition has not been in the possession of the plaintiff or any one under whom he claims or might claim for thirty consecutive years, and that said plaintiff nor those under whom he claims or might claim have paid any taxes for all that period of time on said land and that said defendant is in the lawful possession of said land, and has been for more than one year from the date of the expiration of said period of thirty years. Wherefore, premises considered, defendant prays judgment and for costs." The reply denies generally each and every allegation of new matter in the answer contained, and specifically denies the plea of adverse possession for 10 years. Such are the issues made by the pleadings.

Plaintiff's evidence offered in chief consisted of records and his individual evidence, and that of one David Wilkerson. It was admitted that the title passed from the United States government to the state of Missouri by act of Congress September 28, 1850, c. 84, 9 Stat. 520, § 4, and from the state to New Madrid county October 1, 1875. The record title thereafter passed by mesne conveyance until it reached Levi Mayhew March 19, 1870. At this point the following offer of a deed and ruling was made: "Plaintiff offered the deed from Levi Mayhew to James McHenry Campbell conveying the land in controversy, dated April 26th, 1871, recorded in Book 23, page 279. This deed was not acknowledged by Levi Mayhew, and the acknowledgment of his wife was before a justice of the peace in Lauderdale county, Tennessee. Defendant objected to the introduction of said deed because it was not acknowledged by one of the parties, and the other grantor acknowledged the same before a justice of the peace in another state. The court overruled the objection, to which defendant excepted." Plaintiff then offered a quitclaim deed, for which he paid $1, from Sarah Campbell, widow of James McHenry Campbell, to W. H. and James Campbell, the plaintiff, of date January 13, 1903, and also a quitclaim deed from W. H. Campbell to himself of date January 15, 1903. The plaintiff and Wilkerson testified as follows, as taken from the abstract of record: "James M. Campbell, the plaintiff, testified in substance as follows: I claim to own the northeast quarter of northwest quarter of section 17, township 25, range 13, in New Madrid county, Missouri. James McHenry Campbell was my father. He died on the 9th of September, 1902, and left as his only heirs myself, my brother W. H. Campbell and my stepmother, Sarah Campbell. I have a deed from Levi Mayhew to my father. Cross-examination: I am thirty-six years old. I visited this land last December. That was the first time I ever saw it. I never had possession of it in my life. My father paid taxes on it in 1874. I have not got the tax receipt; but I am satisfied that my stepmother has got them. I have never been able to get them. My father told me he paid the taxes that year, but I never saw him pay them, as I was very small then. I think I have seen the tax receipt for 1874. I would not be exactly certain. I saw the receipt, and that is what they told me; it was about twenty years ago. My father had no other land in this county. I think he owned this land. I think he lived in this county at this time. I did not read the tax receipt, and do not know what was in it, except by what I was told. My father moved to Pemiscot county soon after he bought the land, and was in Pemiscot county when he was talking to me about the receipt. I think he moved there in 1872. If there was a tax receipt my stepmother has it, and I have tried to get it, but she never looked it up, and I did not subpœna her as a witness. She lives in Pemiscot county. She don't exactly claim to have it. I tried to get her to find it, but she said she could not run across it anywhere. I failed to get it, but am satisfied that it is somewhere. There were tax receipts from 1871 to 1874. There were more than one tax receipt, and I am describing the latest one that I know for certain. I think he paid taxes in 1875, but I would not be certain. That was about twenty years ago. He came from Pemiscot county to pay taxes on this land, and he just quit coming and paying the taxes. I don't know anything about his abandonment of the land. He was talking to me in 1897, and told me that he had a receipt at home then, but he hadn't paid taxes since 1874 or 1875. He said that he was not certain that he paid any in 1875, but thought he did. He knew that he had the receipt for 1874. My father lived in Pemiscot county from 1872 till last September, when he died. I have been in this county since 1884. I never claimed this land until last year. I never paid taxes on the land, because I did not look after my father's business. My father claimed to own the land, and I don't know why he didn't pay taxes. When I saw the land I found that it was improved." David Wilkerson testified, in substance, as follows: "I knew James McHenry Campbell all my life. He stayed at my house all night when coming from New Madrid county to Pemiscot county I think in 1873 or 1874. He said he was coming to pay taxes."

As color of title, the defendant put in evidence deeds conveying the land as follows: Deed from Horatio P. Lynch and wife to Laura W. Smith of date March 26, 1877; deed, F. M. Sikes and Laura W. Smith to Otto Kochtitzky of date July 26, 1889; and deed from Otto Kochtitzky to himself of date February 11, 1901. He also offered the tax-books from 1872 to 1889, both inclusive, showing that the land went delinquent for the years 1871 to 1899. Otto Kochtitzky testified thus: That he had been in business in and about New Madrid county, excepting three years, since 1875; formerly lived in the county, but at the time of trial lived at Cape Girardeau; first knew land in dispute in 1886, when he run the north line thereof; in 1889 bought 600 acres of land of which this 40 acres was a part; cut the timber off in 1889 and 1890; made plat of the land in 1891; first paid taxes on the land in dispute in 1889 for the taxes of 1889, and paid them continuously until he sold to Greer; that in 1889 or 1890 he cut the timber off of the ridge running into this 40 acres, and built a house on the south edge of it; that Singleton cleared the ridge, and helped build the house and lived in the house while at work cutting timber, and cleared a garden patch of perhaps one acre. When Singleton left the place, he turned it over to Klein as a part of the farm, and Klein had charge of the 40 with the other land; that the 40 was in the center of the 640 acres...