Chilton v. Comanianni

• Decision Date: 29 June 1909
• Parties: J. W. CHILTON et al., Appellants, v. SEBASTIANNI COMANIANNI et al
• Court: Missouri Supreme Court

120 S.W. 1174

221 Mo. 685

J. W. CHILTON et al., Appellants, v. SEBASTIANNI COMANIANNI et al

Supreme Court of Missouri, Second Division

June 29, 1909

Appeal from Shannon Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed (with directions).

J. W Chilton and James Orchard for appellants.

(1) A deed made by a grantor who has previously sold the same land by deed which has been recorded before the execution of such second deed, is an absolute nullity and conveys no title. This is A B C law and needs the citation of no authorities to support it. Where, in a tax suit, service of process is had only by order of publication against the record owner of land by the initial letters of his name (the land standing of record in his full Christian name), the court acquires no jurisdiction of such defendant, the judgment is void, and a deed founded thereupon is likewise void and conveys no title to the purchaser. Spore v. Ozark Land Co., 186 Mo 656; Vincent v. Means, 184 Mo. 329; Evarts v Mo. Lbr. and Mining Co., 92 S.W. 372; Turner v. Gregory, 151 Mo. 100. (2) Adverse possession, under color of title, in order to ripen into title under the ten-year limitation statute, must have been actual, open, notorious, exclusive, adverse, hostile and continuous in the claimant or those under whom he claims, as against the true owner, for a period of ten consecutive years. A hiatus in the possession will stop the statute. Dalby v. Snuffer, 57 Mo. 294; St. Louis v. Priest, 103 Mo. 655; Brown v. Hartford, 173 Mo. 183; Sedgwick & Wait, Trials, sec. 729; Nye v. Alfter, 127 Mo. 529. (3) To sustain the affirmative plea of the thirty-year Statute of Limitations (Sec. 4268, R. S. 1899), the following (among other things), must be proved by the party asserting and relying upon such plea, to-wit: 1. The premises must not have been in the possession of the true owner nor any one under whom he claims for thirty consecutive years. 2. No taxes must have been paid on the land by the true owner nor by any one under whom he claims, for thirty consecutive years. 3. The original owner must have failed to bring his action within one year succeeding the thirty-year period referred to. 4. The pleader must have been in lawful possession of the land one year after the expiration of the thirty-year period referred to. Fairbanks v. Long, 91 Mo. 633; Rollins v. McIntyre, 87 Mo. 515. Payment of taxes, cutting of timber and keeping off of trespassers are acts not of themselves ordinarily sufficient to constitute actual possession within the meaning of the law, especially in the absence of actual notice to the true owner. Pharis v. Jones, 122 Mo. 131; Nye v. Alfter, 127 Mo. 529. (4) When the verdict of a jury is unsupported by evidence, or is the result of erroneous instructions from the court, this court will set aside or reverse a judgment founded thereupon. Mosris v. Barnes, 35 Mo. 412; Pipkin v. Allen, 24 Mo. 520; Robbins v. Phillips, 68 Mo. 100.

A. E. McGlashan for respondents.

(1) The instructions of the court correctly declared the law as to what constitutes possession. Draper v. Shoot, 25 Mo. 203; Leeper v. Baker, 68 Mo. 400; Fugate v. Pierce, 49 Mo. 441; Turner v. Hall, 60 Mo. 271; Mississippi Co. v. Vowels, 101 Mo. 225; Cook v. Farrah, 105 Mo. 493; Goltermann v. Schiermeyer, 111 Mo. 405, 125 Mo. 302; Brown v. Hartford, 173 Mo. 183. (2) The evidence is sufficient to sustain the verdict of the jury and the judgment of the court. (3) The thirty-year Statute of Limitation, sec. 4268, applies. The defendant proved: (a) That neither plaintiffs nor those under whom they claim had ever been in the possession of the land. (b) That neither plaintiffs nor those under whom they claim had paid any taxes on the land since 1869. (c) That after the expiration of the thirty-year period prescribed by the statute, defendant under color of title and claim of ownership entered into the possession of the land and remained in the possession thereof for more than one year. (d) That plaintiffs failed to bring this action within one year after the termination of the thirty-year period and within one year after the possession of the land by the defendant. (4) The possession of the land by Wood and Stewart, while cutting the timber, was the possession of defendant. Tiedeman on Real Property (2 Ed.), chap. 20, sec. 692, p. 642; Holladay-Klotz L. & L. Co. v. Markham and Duckett, 96 Mo.App. 51. (5) The land was not susceptible of a more strict and definite possession and was so found by the jury. (6) Possession of part of the tract, under color of title, is possession of the whole tract. Sec. 4266, R. S. 1899. (7) A less weight of evidence is necessary to support the claim of title by adverse possession where the entry is with color of title, than where it is not. Draper v. Shoot, 25 Mo. 202. (8) The appellate court, in determining whether the evidence is sufficient to support a verdict, will assume that the evidence is true and will give it every favorable inference which may be reasonably drawn from it. James v. Life Assn., 148 Mo. 16. (9) It is not enough that there is an insufficiency of evidence; a case will not be reversed on the ground of lack of evidence unless there is no evidence tending to establish the facts found by the jury. Smith v. Royse, 165 Mo. 658; James v. Life Assn., 148 Mo. 16; State v. Fischer, 124 Mo. 462.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is an action to determine and quiet the title to the south half of section five in township 30, range 4, west, in Shannon county and containing three hundred and twenty acres.

The suit is brought under section 650, Revised Statutes 1899, and was begun March 29, 1904. At the September term, 1904, of said court, judgment was rendered in favor of the plaintiffs and against the defendant by default, and at the March term, 1905, of said court, said judgment was set aside on petition for review and the defendant was permitted to file an answer and make defense. On November 30, 1905, the cause was tried in the circuit court of said county before a jury, and judgment was rendered for the defendant. In due form the plaintiffs have appealed from the judgment and decree. In his answer the defendant admitted that he claimed to be the owner of said land and denied the other allegations in the petition. He then set up that he had actual possession of the said lands for ten years and then pleaded the thirty-year Statute of Limitations against the plaintiffs. The reply denied all the new matter set up in the answer.

To sustain the issues upon his part, the plaintiffs offered in evidence a patent in due form from the United States to Joshua Spencer dated September 1, 1859, recorded April 13, 1873, in book 1, page 795, to the lands in controversy. Plaintiffs next introduced in evidence a warranty deed in due form from Joshua Spencer and wife to Joseph N. Boyce, dated August 1, 1860, duly recorded September 3, 1869, in recorder's office of said county. Plaintiffs then introduced a warranty deed in due form from Joseph N. Boyce and wife to Daniel B. Dyer of date September 15, 1869, recorded September 29, 1869, and re-recorded March 25, 1873. Plaintiffs then introduced a quitclaim deed from Daniel Dyer, a single man, to J. W. Chilton, to an undivided one-half of the said land, dated March 21, 1904, recorded March 31, 1905. Plaintiffs then rested.

Defendants on their part offered in evidence a warranty deed in due form from Joshua Spencer to William E. D. March, dated January 2, 1875, recorded November 21, 1877, to the introduction of which the plaintiffs duly excepted at the time for the reason that the grantor had previously conveyed all his rights, title and interest in said land to Joseph Boyce by warranty deed. Defendant then introduced a deed from March and wife to Amos Bissel dated May 6, 1876, recorded November 21, 1877, to the introduction of which the plaintiffs interposed the same objection, which being overruled by the court they duly excepted. Defendants then introduced a warranty deed from Bissel to Matheny of date June 1, 1876, recorded November 21, 1877, to the introduction of which plaintiffs objected for the reason that there was no title in the grantor to said deed. Defendants then introduced a warranty deed from Luther T. Matheny to William T. Ingram of date August 18, 1876, and recorded November 21, 1877, to the introduction of which the plaintiffs objected because it was shown that said Matheny never had any title to said land. Defendants then introduced a mortgage by William R. Ingram and wife to Thomas M. Heard of date December 8, 1880, to secure the sum of $ 1,800, to the introduction of which a like objection was made. Defendants then introduced a release from Heard to William R. Ingram of date July 3, 1882, of the said mortgage debt. Defendants then introduced in evidence a warranty deed from William T. Ingram and wife to the defendant Comanianni of date June 22, 1895, recorded June 25, 1895, to the introduction of which plaintiffs objected for the reason that the said Ingram had no title to said land to convey. Defendants then introduced a sheriff's deed for taxes by George F. Chilton, sheriff, under a judgment in November, 1878, for taxes against Joshua Spencer, D. B. Dyer, William T. Ingram, said deed being dated May 1, 1879, recorded May 21, 1879, conveying the land in question to William T. Ingram, to the introduction of which plaintiffs objected at the time on the ground that the court had no jurisdiction over the person of the defendant Daniel B. Dyer and that no suit had been instituted or prosecuted against said Dyer.

The defendant then introduced in evidence the deposition of William T. Ingram, who testified that he was seventy-five years old and resided in Murphysboro, Illinois. He...