Cravens v. Moore

• Decision Date: 31 October 1875
• Citation: 61 Mo. 178
• Parties: J. C. CRAVENS, Appellant, v. GEO. W. MOORE, Respondent.
• Court: Missouri Supreme Court

61 Mo. 178

J. C. CRAVENS, Appellant,

v.GEO. W. MOORE, Respondent.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Lawrence Circuit Court.

Cravens, pro se.

I. Plaintiff's equity is beyond dispute. The right of the pre-emption was regularly and legally transferred to him.

II. The defendant's only claim to the right to purchase from the company was void; 1st. because the judgment on

which it was based was void; 2d. because Titterington's pre-emption right was not subject to sale, even on a valid execution.

III. The action of respondent in obtaining the legal title from the railroad company was a wilful and positive fraud upon the rights of appellant.

Wait, Broaddus & Pollard, for Respondent.

I. Titterington's pre-emption claim constituted no interest in the land. It was a mere personal privilege, and his leaving the land for eight years, making no claim thereto, and permitting defendant to take possession and make improvements, and occupy under claim of right for over five years, constitutes an abandonment. (Bray vs. Ragsdale, 53 Mo., 170.)

II. Titterington's quit-claim to plaintiff was inoperative as a transfer, 1st. because Titterington had forfeited all claim by his abandonment; 2d. because the deed was not acknowledged before a justice; 3d. because plaintiff did not, when the deed was made, proceed to occupy the land.

The transfer of pre-emption rights was under the law (Sess. Acts, 1852, pp. 11-12, § 7; Sess. Acts 1858-9, p. 65, § 6) to be made for the sole purpose of residence for agricultural objects, and to be accompanied by change of possession, and not to be made for speculation; and without such transfer of occupancy, the transferee could obtain no title. Here, Titterington himself had abandoned the possession, and plaintiff did not take it.

NAPTON, Judge, delivered the opinion of the court.

The petition in this case was in the nature of a bill in equity to procure a transfer of the title to certain lands described, from the defendant to the plaintiff.

The facts agreed on are, that one John Q. Titterington was the owner, by purchase from one Grammar, of a railroad pre-emption on the land in question, under the act of Congress entitled “An act granting the right of way to the State of Missouri, and a portion of the public lands, to aid in the construction of certain railroads in said State,” approved June 10, 1852, and the act of the General Assembly of this State, entitled “an act to accept the grant of lands made to the State of Missouri by the Congress of the United States, to aid in the construction of certain railroads in this State, and to apply a portion thereof to the Pacific Railroad, approved December 23, 1852.” Titterington resided on this land from 1857, when he bought of Grammar, until February, 1862, when, owing to the commotions growing out of the war, he left the State, leaving his wife and family on the place, who continued to stay there till the fall or winter of 1863, when they also left, leaving a negro man in charge of the place; but how long the negro remained there is not stated. In the fall of 1865, the defendant purchased Titterington's interest in this land, under a sheriff's sale on execution against Titterington, took possession, and has ever since been in actual possession thereof, claiming the ownership. There were at the time of defendant's purchase about thirty-five acres of the land in cultivation and under fence, with double-log house, stable and small young orchard growing on the place, said improvements having been made by Titterington. Titterington never returned to said premises, nor demanded the possession thereof after his leaving as aforesaid, nor was ever in possession after said defendant took possession.

On the _____ day of July, 1870, said Titterington, who then resided in Laclede county, Mo., conveyed his title to said premises to the plaintiff, who was then and still is a practicing attorney, residing in Springfield, Greene county, Mo., and who has never been in possession of said premises.

These are all the facts agreed on. On the trial in 1874, it further appeared that Grammar's pre-emption under the act of 23d of December, 1852, was regularly proved up and filed in the clerk's office, as required by the 7th section of this act, on the 4th of June, 1854.

On the 4th of November, 1857, Grammar assigned to Titterington this pre-emption claim in consideration of thirty dollars, and this assignment was acknowledged before the clerk of the circuit court, and certified by said clerk.

On the 27th of July, 1870, the following deed was acknowledged before a notary public of Greene county, and filed in the office of the recorder of Lawrence county:

“Know all men by these presents, that John Q. Titterington, of the county of Laclede, in the State of Missouri, has this day, for and in consideration of one thousand dollars, in hand paid by Jerry C. Cravens, of the county of Greene, in the State of Missouri, the receipt whereof is hereby acknowledged, do by these presents remise, release, and forever quit-claim unto the said Jerry C. Cravens and to his heirs and assigns, the following described tract or parcels of land situate in the county of Lawrence, in the State of Missouri, that is to say: the north half of the northwest quarter, and the northeast quarter of the southwest quarter of section 26, T. 27, R. 25; also the south half of the northwest quarter of section 33, T. 27, R. 25; also the following described tract of land situate in the county of Stone, in the State aforesaid, viz: the south half of the southeast quarter of section 9, T. 26, R. 23. In testimony whereof, I have hereto subscribed my name and affixed my seal, this 27th of July, 1870.

[Seal.]

JOHN Q. TITTERINGTON.”

The acknowledgment of this deed was made before T. H. Lawrence, notary public of the county of Greene, and is marked “filed and recorded by H. C. Lollar, recorder, August 15th, 1871.”

This deed, it seems, was given in evidence on the trial by the plaintiff as the basis of his claim. The petition and answer are...