Chilton v. Hedges

• Decision Date: 29 March 1918
• Docket Number: No. 18910.,18910.
• Citation: 204 S.W. 900
• Parties: CHILTON v. HEDGES et al.
• Court: Missouri Supreme Court

204 S.W. 900

CHILTON v. HEDGES et al.

No. 18910.

Supreme Court of Missouri, Division No. 1.

March 29, 1918.

Rehearing Denied June 4, 1918.

Motion to Transfer to Court in Banc Overruled July 5, 1918.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Suit by J. William Chilton against O. P. Hedges and others. Judgment for plaintiff. A petition for review sustained, and from a judgment for the defendant Horace Lowery, the plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

The plaintiff instituted this suit in the circuit court of Butler county against defendants to determine and quiet title to certain tracts of land situate la said county. The judgment was for the defendants, and the plaintiff duly appealed the cause to this court.

Counsel for respondents admit that the statement of the case made by counsel for appellant is correct, except that a certain judgment referred to therein, and read in evidence by him, was offered in evidence as a link in their chain of title, aid not as res judicata; the judgment being between other parties. With that admission we will adopt that statement as the statement of the case by this court, which reads:

"This is an action to determine and quiet title to the W. ½ of lot 1, N. W. ¼ section 1 in township 24, range 2 east, in Butler county, Mo., instituted by appellant August 7, 1910, against Horace Lowery, respondent, and a number of other defendants, resulting in a judgment in favor of appellant and against all defendants by default at the November term, 1910, of said court. Nearly three years thereafter, to wit, on November 1, 1913, Horace Lowery, one of the said defendants, filed in said court his petition for review of said judgment.

"Said petition for review shows that said defendant was at all times a nonresident of the state of Missouri, and was notified of the Pendency of this suit against him by publication, and then, stating that said petitioner has a meritorious defense to said suit, alleges such defense to be that: First, said petitioner claimed title to the W. ½ lot 1, N. W. IA section 1, township 24, range 2 east, but not to any other tract of land described in plaintiff's petition, and that other defendants herein claimed title to other tracts of land embraced in said suit, but did not claim title to the aforementioned tract, by reason of which facts there was a misjoinder of parties defendant in said suit; and, second, respondent sit up as a further defense to this action the so-called 30-year statute of limitations, alleging that petitioner had been in actual possession of the land in controversy for 2 years next before the filing of the petition herein, that appellant and those under whom he claims had never been in the actual possession of said land, and had not, within 31 years next before tie filing of this suit, paid any taxes thereon. Said petition for review did not state or allege that any allegation in plaintiff's petition was untrue. The court sustained said motion, set aside its judgment in favor of appellant, aid at the July term, 1914, thereof, in pursuance of said court's order, respondent filed his answer herein.

"Said answer of respondent renews respondent's allegations of a misjoinder of defendants, made in the petition for review, and alleges that respondent claims title to the land in controversy, disclaiming the other la ads embraced in the suit. But said answer of respondent does not set up the 30-year statute of limitations, nor allege any fact in relation thereto, and does not set up nor allege any defense to plaintiff's suit, other than a mere claim that respondent owns the said land. Said answer contains a prayer that the court try, ascertain, and determine the title, etc., and for judgment barring plaintiff's claim to said land.

"Upon a trial of the cause at the October term, 1914, of said court it was agreed and stipulated between plaintiff and defendant that Henry C. Wright was the common source of title, and owned the land in controversy at the date of his death; that said Henry C. Wright died May 15, 1880, and that plaintiff (appellant) had before the institution of this suit acquired the interest and title of the heirs of said Henry C. Wright to said land. This stipulation constituted plaintiff's evidence in chief.

Respondent, Lowery, then introduced a sheriff's deed for taxes dated June 12, 1888, based on a judgment of the Butler county circuit court for back taxes, against Henry C. Wright (and others, but not including the heirs of Henry C. Wright), purporting to convey the land in controversy to George H. Scithers, and mesne conveyances from Scalers to Southwest Land & Orchard Company. It was stipulated thereupon that any title which might have been acquired by Southwest Land & Orchard Co. under said tax sale had been conveyed to respondent by it.

"It may here be observed that, as the said tax suit was brought against Henry C. Wright in 1888, said Henry C. Wright had been dead for several years, for which reason the tax judgment, sale, and deed were utterly void, and conveyed no title.

"Respondent, Lowery, then introduced a so-called decree of title which had been rendered by the circuit court of Butler county in favor of plaintiff in an action brought by said Southwest Land & Orchard Company against `Henry C. Wright if living, and, if dead, against his unknown heirs,' purporting to quiet the title to the land in controversy in said Southwest Land & Orchard Company, the date of said decree being April 23, 1908.

"The respondent did not, however, offer any evidence whatever in support of a plea of the 30-year statute of limitations, and made no attempt whatever to prove the defense set out in his petition for review. Neither did respondent offer any evidence of a misjoinder of parties defendant, as had been set out in both his petition for review and his answer, or attempt to make any defense to plaintiff's suit, or attempt to show title in himself, other than as above set out.

"Appellant introduced in rebuttal the original files in the suit of Southwest Land & Orchard Co. v. Henry C. Wright or His Heirs, for the purpose of showing that the court rendering the decree in said cause had no jurisdiction of the unknown heirs of Henry C. Wright, and, that said decree was therefore void. This was all the evidence.

"The court, at its October term, 1915, rendered judgment in favor of respondent, based solely upon the said decree of title of Southwest Land & Orchard Company against Henry C. Wright or His Heirs, decreeing respondent to be the sole owner of the land in controversy, and forever barring appellant from thereafter claiming same.

"Appellant in due time filed his motion for new trial, which was by the court overruled, whereupon appellant filed his motion in arrest of judgment, which was by the court also overruled. From the said judgment appellant has appealed to this court."

S. A. Cunningham, of Eminence, and J. W. Chilton, of Winona, for appellant. Garry H. Yount, of Van Buren, for respondents.

WOODSON, J. (after stating the facts as above).

While plaintiff makes formal complaint of the action of the trial court in setting aside the nonsuit mentioned in the statement of the cause, also of its action in...