Campbell v. Laclede Gas Light Co.

• Decision Date: 31 October 1884
• Parties: CAMPBELL et al. v. THE LACLEDE GAS LIGHT COMPANY et al., Appellants.
• Court: Missouri Supreme Court

84 Mo. 352

CAMPBELL et al.

v.THE LACLEDE GAS LIGHT COMPANY et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

[COPYRIGHT MATERIAL OMITTED]

Appeal from St. Louis Court of Appeals.

REVERSED.

C. & C. E. Gibson, for Laclede Gas Light Company, appellant.

(1) The St. Louis copy of the patent of the United States was properly admitted in evidence. Geary v. Kansas City, 61 Mo. 378; Parkinson v. Caplinger, 65 Mo. 290; Briggs v. Holmstrong, 72 Mo. 337. (2) The certified copies of the record of the deeds from E. C. Payne and others to Thomas J. Payne, made in 1831, should have been excluded. They were void as to strangers, being mere nullities up to the time of the passage of the act of 1874. In 1846, before the act of 1847, or any subsequent acts were passed, the grantors in the deed to Payne conveyed to Mary Jones, and she conveyed to Franklin Niles. Plaintiffs have not given any proof of the execution, loss, or destruction of the original deeds from the Paynes, made in 1831. Their case stands on the unauthorized records alone, and there can, therefore, be no notice imputed to Waddingham when he bought of Ben. Payne, in 1851, of anything except the existence of these spurious deeds. The legislature, by its act, could not divest the title of Jones and her vendees by enacting that a record which was a nullity should be received in evidence without further proof, and thus become a conveyance as of its own date, and thereby defeat a title already vested in another. Gatewood v. Hart, 58 Mo. 265. Nor is the position of plaintiffs sound that Wheeler and his heirs, and Waddingham were tenants in common, and, therefore, that he could not buy in another title, and that his possession was theirs. Wheeler, or Wheeler and Waddingham, possessed the whole tract bounded on the east by the Mississippi river. The proceedings in partition embraced the whole tract to the river. The report of sale by the commissioners, and their deed to Waddingham, describes the lots one, two, three, and four, as sold, and as bounded on the east by the Mississippi river. These facts, together with Waddingham's use and possession of the strip in controversy thereafter, constitute a complete ouster by him of his tenants in common. Fugate v. Pierce, 49 Mo. 449; Hoffstetter v. Blattner, 8 Mo. 382. (3) The proceedings in partition, in 1837, were between tenants in common, and bound the minor therein. Under the code of 1835, sections five and thirty-six, the general guardian and the guardian ad litem had full authority after service on the one and appointment of the other, to appear in and conduct the suit as fully as if all the defendants had been of full age. (4) Plaintiffs are barred by the statute of limitations. (5) Plaintiffs are also barred by reason of the receipt of the purchase money at the partition sale, and its application to the benefit of the estate.

Leverett Bell for respondents.

(1) The objections to the deeds to Thomas J. Payne were well taken. The deeds were recorded in the years mentioned, more than thirty years prior to the time when certified copies thereof were offered in evidence, and accordingly, it was immaterial whether the originals were properly acknowledged or not. 1 R. S., secs. 2305, 2306; Smith v. Madison, 67 Mo. 694. Moreover, the trial subsequently developed that the Laclede Gas Light Company claimed title under Wheeler, and, therefore, it was disabled from disputing the Wheeler title. (2) The decree in chancery, in the case of Waddingham v. Wheeler, was void as to the plaintiff, Campbell. She was not served with process. Her guardian could not appear for her in the absence of such service. R. R. Co. v. Campbell, 62 Mo. 585; Gibson v. Chouteau, 39 Mo. 536; Hendricks v. McLean, 18 Mo. 32. (3) The deeds from the Paynes to Mary Jones, executed in 1846, were inadmissible as evidence, on two grounds: first, the defendant, the Laclede Gas Light Company, claims title in this case under Edward P. Wheeler, and is, therefore, estopped from impeaching the Wheeler title. Miller v. Harding, 64 Mo. 545; Butcher v. Rogers, 60 Mo. 138; Holland v. Adair, 55 Mo. 40. And, secondly, the said defendant cannot be held to be an innocent purchaser by virtue of the quit-claim deeds executed by the Paynes after they had parted with their title. Austin v. Loring, 63 Mo. 19; Stivers v. Home, 62 Mo. 473; Mann v. Best, 62 Mo. 491; Ridgeway v. Holliday, 59 Mo. 444. (4) The deed of Niles by administrator to Payne was rightly excluded. This deed was acknowledged December 22, 1849, before the judge of the probate court. The statute in force at the time required it to be acknowledged in open court. R. S., 1845, sec. 40, p. 88. (5) The partition deed of August, 1837, by which certain property was conveyed to Waddingham, did not transfer the property involved in this suit. No part of the land sued for here is embraced in any of the lots laid down on the plat attached to the commissioners' report in said case. The premises are east of the eastern line of lots one, two, three and four, as delineated on said plat. The said plat, which was filed in 1836, exhibits a strip of ground between the eastern line of said lots and the river. The commissioners' report speaks of this ground as a “space between the front lots and the river.” The main part of the ground sued for was created subsequent to 1853, by gradual accretion attaching to the river bank, and as it was formed it became the property of the adjoining proprietor. Smith v. Public Schools, 30 Mo. 290; Lebeau v. Gavin, 37 Mo. 556; Public Schools v. Risley, 40 Mo. 356; Benson v. Morrow, 61 Mo. 345; Banks v. Ogden, 2 Wall. 57; Saulet v. Shepherd, 4 Wall. 502. The commissioners' deed describes the lots one, two, three and four, as “bounded east by the Mississippi river,” but this boundary is erroneous as shown by the plat and the commissioner's report, which afford the only possible means of ascertaining what grounds the lots embrace. It is a false call, and, although a monument, should be disregarded. Shewalter v. Pirner, 55 Mo. 218; R R. v. Green, 68 Mo. 169. The decree in partition, to the effect that Waddingham was entitled to one-half of the property involved in the suit, was absolutely void because the minors, who were defendants in said cause, were not served with process. R. S. 1835, p. 422, sec. 5. (6) The judgment of the court below, awarding to each plaintiff the separate interest to which she is shown to be entitled, is unobjectionable. R. S., sec. 2249; Miller v. Bledsoe, 61 Mo. 96. (7) The defence of the statute of limitations was not established by the evidence. It was not shown that a legal patent for the premises in controversy was ever issued by the United States; hence it was not till the act of congress of June 6, 1874, that the title emanated from the government, and prior to that time the statute could not run. Smith v. Madison, 67 Mo. 694. The only evidence as to a patent in this case is the certified copy from the recorder of deeds for St. Louis county, offered by defendants, and it was improperly admitted in evidence. R. S. of United States, section 459; United States v. Schurz, 102 U. S. 378; McGarrahan v. Mining Co., 96 U. S. 316. The evidence on other grounds is not sufficient to justify a plea of the statute of limitations. Lynde v. Williams, 68 Mo. 360; Leeper v. Baker, 68 Mo. 400; Norfleet v. Hutchins, Id. 597. Especially when it is considered that Waddingham, the grantor through whom the Laclede Gas Light Company claims, was, from 1834, when the decree was rendered in the chancery proceeding, to his death, in 1856, a tenant in common with plaintiffs and their grantors as to the property in question. Hamilton v. Boggs, 63 Mo. 233. It was not until 1867 that the heirs of William Waddingham conveyed to Richard Schulenberg the property in dispute, and in 1872 Schulenberg conveyed to the Laclede Gas Light Company. The tenancy in common continued to exist until 1867. Long v. Stapp, 49 Mo. 506. (8) The doctrine of estoppel, as claimed by appellant, does not apply. None of the property sued for was attempted to be sold. The purchasers at the partition sale have received all the property purchased by them. A small part only of the property here sued for existed when the sale was made. It has in the main been created and brought into existence since that time. The plaintiffs do not dispute the Waddingham title to the property purchased by Mr. Waddingham at the partition sale.

MARTIN, C.

On the 5th of January, 1877, the plaintiffs sued in ejectment to recover a tract of land in United States survey six hundred and seventy-one, situated in the city of St. Louis, immediately north of Mullanphy street, fronting about one hundred and thirty-seven feet on the Mississippi river, and running back from it with the same width to the depth of about two hundred feet. The petition is in the usual form. The Laclede Gas Light Company made separate answer denying specifically the allegations of the petition. The city of St. Louis, in its answer, put in issue the allegations of the petition, and pleaded the statute of limitations.

The trial, which was by the court, resulted in a judgment for the plaintiffs, in which Lavinia Campbell recovered ten twenty-fourths, Annie L. Murray, three twenty-fourths, and Amelia E. Hartnett three twenty-fourths of the land sued for. Separate bonds were given and separate appeals prosecuted by the defendants, respectively. In the court of appeals the judgment was affirmed without argument, pro forma. After appeal by both defendants to this court, the city of St. Louis compromised its interest in the defence by purchasing from the plaintiffs their whole interest and estate in the land, and dismissing its appeal. By this movement the city of St. Louis took the place of the plaintiffs as to the remaining defendant; and the case now stands as between the city of St. Louis, assignee of the plaintiffs, and the Laclede Gas Light Company, sole defendant. In passing upon...