Chilton v. Nickey

• Decision Date: 14 July 1914
• Docket Number: No. 16779.,16779.
• Citation: 261 Mo. 232,169 S.W. 978
• Parties: CHILTON v. NICKEY.
• Court: Missouri Supreme Court

169 S.W. 978

261 Mo. 232

CHILTON v. NICKEY.

No. 16779.

Supreme Court of Missouri. Division No. 2.

July 14, 1914.

1. EVIDENCE (§ 342) — CERTIFIED COPIES — PATENTS TO PUBLIC LANDS—ADMISSIBILITY.

Copies of patents to public lands, authenticated by a certificate of the recorder of the General Land Office at Washington, D. C., reciting that the annexed copies are true and literal exemplifications from the records in the office, and signed and sealed by the officer, are admissible under Act April 19, 1904, c. 1396, 33 Stat. p. 185, and Rev. St. 1909, § 6293, providing that records and exemplifications of office books shall be admissible in evidence if attested by the keeper thereof with the seal of his office, etc.

2. TAXATION (§§ 641, 643)—TAX SUITS—PETITION—UNKNOWN HEIRS.

Where a tax suit is brought against unknown heirs of a deceased owner, the petition must, to render a sale valid, describe the interests of the unknown heirs; for after the death of the owner his heirs must be properly sued, served, and allowed their day in court or the proceedings are void.

3. ADVERSE POSSESSION (§ 114)—SUFFICIENCY OF EVIDENCE.

One claiming title by adverse possession must show adverse possession by a preponderance of the evidence.

4. APPEAL AND ERROR (§ 842) — VERDICT — CONCLUSIVENESS.

Where, in a suit to quiet title, plaintiff stood on a legal title, and defendant claimed under the statute of limitations, and there was evidence in support of the issue, the verdict is conclusive on appeal.

5. EQUITY (§ 84)—LACHES—APPLICABILITY.

The doctrine of laches may only defeat a claim for equitable relief and is not a bar to a claim to land made under a legal title.

6. APPEAL AND ERROR (§ 1152)—DISPOSITION OF CASE ON APPEAL—MODIFICATION.

Where, in a suit to quiet title, the evidence clearly showed that one-fifth of the land did not belong to either party, but to heirs not made parties, a judgment awarding the land to one of the parties must be modified so as to adjudge to the successful party the undivided four-fifths of the land, without making any adjudication as to the other one-fifth.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by J. William Chilton against Leander F. Nickey. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

E. R. Lentz, of Poplar Bluff, for appellant. James Orchard, of Eminence, for respondent.

ROY, C.

Suit to quiet title in which judgment was for plaintiff. The land is the northeast quarter and the west half of the southeast quarter of section 1, also the southeast quarter and lot 1 of the northeast quarter of section 2, all in township 23, range 4 east. It is wild timber land with no improvements, as hereinafter stated. The answer contained a general denial, except that it admitted a claim of ownership by defendant, and pleaded the 30 years' statute of limitations as to that part of the land in section 1.

The plaintiff read in evidence a copy of a patent issued to Henry C. Wright of Warren county, Mo., for that part of the land in section 1, dated September 1, 1859, and a copy of a patent to Alois Menne, for the lands in section 2. Each of these instruments was certified as follows:

                  "Department of the Interior, General Land Office
                            Washington, D. C
                                           "Oct. 12, 1910
                

"I hereby certify that the annexed copies of patents are true and literal exemplifications from the records in this office. In testimony whereof, I have hereunto subscribed my name and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.

                   "[Seal.] H. W. Lanyard
                         "Recorder of General Land Office."
                

To these copies of the patents the defendant objected for the reason that they were not authenticated as required by the act of Congress or in any other manner. The objection was overruled and defendant excepted.

Plaintiff read in evidence a warranty deed from Alois Menne to Nicholas P. Stephenson for the land in section 2, dated December 15, 1857, and recorded December 15, 1868; also, a warranty deed from said Stephenson to Henry C. Wright for the same land, dated May 29, 1858, and recorded June 14, 1860.

Wright died May 15, 1880, and left surviving him three children and the descendants of two deceased children. The plaintiff acquired the interests of all the heirs except those of Mrs. Robert Williams, Mrs. DeMuth, Alton Easton, and W. R. Easton, the descendants of a deceased daughter of Wright; said interest being one-fifth of the land. P. M. Wright, a son of Henry C. Wright, testified for plaintiff, and on cross-examination said that he did not know where his father's deeds to the land were; that the taxes had not been paid by his father or his heirs since 1875; that the heirs got $100 from Mr. Chilton for the land; and that he was satisfied with that price because he knew it had been sold several times for taxes, and that it would necessitate trouble and expense to recover it.

As to the defendant's title, it is sufficient to say that at various times from 1883 to 1903 different portions of the land were sold for taxes in suits against Henry C. Wright and during that time all the land was so sold for taxes; some portions of it being sold several times. The east half of the northeast quarter and the northwest quarter of the northeast quarter of section 1 were sold for taxes on October 21, 1903. Defendant read in evidence a sheriff's deed under a judgment for taxes against Henry C. Wright, the unknown heirs of Henry C. Wright, deceased, the unknown devisees of Henry C. Wright, deceased, and others, to the defendant herein. The deed was dated April 13, 1907.

The plaintiff, in rebuttal, read in evidence the petition in the tax suit last mentioned. It did not describe the interests of the unknown heirs of Henry C. Wright in the land and did not allege that the interests of such unknown heirs in the land were unknown to the plaintiff.

The defendant after January 1, 1900, and prior to 1906, acquired the title of all the purchasers at the various tax sales. On April 23, 1906, a decree was rendered in the circuit court of Butler county in the case of Leander F. Nickey v. Henry C. Wright, Joseph Gardner, H. B. Powers, and others, quieting the title to the land in said Nickey. The heirs of Henry C. Wright were not parties to that suit, nor was the plaintiff.

There has never been any improvements on the land in section 2. In April, 1906, the defendant sold the tie timber on the land in section 2 under the agreement that the purchasers were to remove the timber within two years. The purchasers during the time limited cut and removed the tie timber. The defendant testified that about six years before the trial he turned all the land over to Joseph Gardner, who agreed to take care of it for defendant for the use of the house then on the place and the tillable land. There was a small box house on the northeast corner of section 1, near which there was about an acre of ground that had...