Crider v. Meatte

• Citation: 7 S.W.2d 691,320 Mo. 474
• Decision Date: 21 June 1928
• Docket Number: 26849
• Parties: M. B. Crider, Appellant, v. Carrie M. Meatte et al
• Court: United States State Supreme Court of Missouri

7 S.W.2d 691

320 Mo. 474

M. B. Crider, Appellant, v. Carrie M. Meatte et al

No. 26849

Supreme Court of Missouri

June 21, 1928

Appeal from Pemiscot Circuit Court; Hon. Henry C. Riley Judge.

Affirmed.

Von Mayes for appellant.

(1) Plaintiff's petition not only sets up a claim of title by adverse possession, but seeks to cancel a deed covering a part of the lots in question, and therefore her suit is one in equity. Canty v. Halpin, 242 S.W. 97; Barron v. Store Co., 237 S.W. 786. (2) Where the true owner has knowledge of the hostile claim of the other party, the possession of the other party to be adverse need not be so open, visible and notorious as to raise the presumption of notice to the world that the right of the true owner is invaded intentionally and with the purpose to assert a claim of title adversely to his. 2 C. J. 75, sec. 57; Missouri Lbr. Co. v. Hassell, 298 S.W. 50; Dausch v Crane, 109 Mo. 323. (3) It is not always necessary to prove actual occupation by the claimant to establish title by adverse possession, where the acts of ownership are known to the party and known to have been done under claim of adverse title, nor is it necessary that the property under such circumstances should be inclosed by a fence or have buildings thereon. Turner v. Hall, 60 Mo. 271; Leeper v Baker, 68 Mo. 400; Brown v. Brown, 106 Mo. 611; Benne v. Miller, 149 Mo. 228. (4) Where a person under color of title to the whole tract has possession of a part of a tract and pays taxes on the whole tract, this is equivalent to possession of the whole tract. Plaintiff had a deed to the whole of the lots and paid taxes on the whole, and therefore, if she had possession of any part, she had possession of all. Sec. 1309, R. S. 1919; Woodside v. Durham, 295 S.W. 773. (5) A grantor may as against a grantee acquire title by adverse possession. Brown v. Brown, 106 Mo. 611. (6) Delivery of deed by co-grantor without expressed or implied authority from the other grantor is void as to the other grantor. The plaintiff never authorized her husband to deliver the deed in question. Dallas v. McNutt, 249 S.W. 35; Meador v. Ward, 260 S.W. 106. (7) An absolute deed may be construed to be a mortgage or lease. Stephens v. Stephens, 232 S.W. 979. (8) Lack of consideration will defeat a deed where there is any fraud or mistake in the transaction. The evidence shows nothing was to be paid for the property and nothing was paid for the property, and the deed was obtained as to the plaintiff without her knowledge of its nature, if she signed it, from which mistake or fraud may be inferred. Chambers v. Chambers, 227 Mo. 262.; 18 C. J. 162, sec. 42; 8 R. C. L. 971, sec. 43. (9) Estoppel in pais need not be pleaded when part of the title, or where the facts in issue show estoppel. 21 C. J. 1246, secs. 255, 256; Bryant v. West, 219 S.W. 359; Bernero v. Trust Co., 287 Mo. 602. Surrender of possession and disclaimer will constitute estoppel, when the other party expends money on improvement of the property or pays taxes thereon for a long time and holds in good faith under color of title, and such surrender and disclaimer is made with knowledge of the legal rights of the party disclaiming. 21 C. J. 1168, sec. 174.

Ward & Reeves and Russell & Oates for respondents.

(1) The plaintiff's theory upon which the case was submitted to the trial court, is embodied in her only requested declaration of law, which the court gave. The plaintiff cannot be heard in this court on any other or different theory than that contained in her said requested instruction. Robinson v. Ramsey, 190 Mo.App. 206; Falvey v. Hicks, 286 S.W. (Mo. Sup.) 385. (2) The only question submitted to the trial court by the plaintiff's given instruction was the question of adverse possession, and the burden of proof being upon the plaintiff on this issue, and that question having been determined by the trier of fact, adversely to the plaintiff, the finding of the trial court will not be disturbed. Schnare v. Austin, 106 Mo. 610; Union Trust Company v. Hill, 283 Mo. 278; Falvey v. Hicks, 286 S.W. (Mo. Sup.) 385. (3) The plaintiff offered a declaration of law, which was given by the court. The plaintiff thereby abandoned every other theory as a ground of recovery, except the one of adverse possession submitted in her only requested instruction, and appellant is precluded from urging in this court any equitable ground of recovery, which she abandoned below; and as the only question on the theory below upon which plaintiff submitted her case, was purely one of law, as distinguished from equity, and one upon which the plaintiff had the burden of proof, the finding thereon by the trial court, sitting as a jury, precludes a review of the evidence on this appeal. Robinson v. Ramsey, 190 Mo.App. 206; Union Trust Company v. Hill, 283 Mo. 278; Falvey v. Hicks, 286 S.W. (Mo. Sup.) 385; Morrison v. Bonner, 195 Mo. 535. (4) There was no contention either by pleadings or evidence at the trial that the deed was not delivered to the grantee. The case was not tried or submitted to the court upon the theory that such a question was in the case. Besides, the deed was produced and offered in evidence by defendant, and it was recorded a few months after its execution and more than eleven years before the institution of this suit. Appellant offered no evidence to rebut the presumption that the deed had been delivered; whereas, such evidence to overcome such presumption involved by the possession and recordation of the deed must be so clear and convincing as to remove all reasonable doubts. Chambers v. Chambers, 227 Mo. 283. (5) There was no allegation of fraud or mistake in plaintiff's petition, nor was there any proof of either, nor was the case submitted on such theory. Such matters must not only be proven, but must be pleaded. Strong v. Whybark, 204 Mo. 348; Jackson v. Wood, 88 Mo. 76; Nauman v. Oberle, 90 Mo. 666; Taylor v. Crockett, 123 Mo. 300. There was no substantial evidence in the case that the deed to defendant's husband was without consideration. The recited consideration is $ 2500, and want of consideration cannot be shown for the purpose of defeating the operative words of the deed. Strong v. Whybark, 204 Mo. 346; Wells v. Kuhn, 221 S.W. (Mo. Sup.) 19. The evidence, when considered in the most favorable light to the plaintiff, does not show such continued uninterrupted possession for a period of ten years as required by law. Brown v. Hartford, 173 Mo. 191. (a) Payment of taxes on land, cutting timber thereon, and protecting it from trespassers, do not constitute possession, but are merely acts tending to show claim of ownership. Pharis v. Jones, 122 Mo. 125. (b) The evidence shows that the plaintiff had no color of title whatever to the fifty-two feet in controversy, but she had conveyed same to the defendant's husband by a warranty deed. Her possession or acts of ownership, if any, over the balance of said lots, would not start the Statute of Limitations running as to the fifty-two feet, even though there were acts of ownership exercised over the fifty-two feet. As to the fifty-two feet, to which the plaintiff had no color of title after she made her warranty deed on May 27, 1913, the plaintiff's possession thereof must be actual, and she could not claim beyond the limits of her actual possession. Sec. 1309, R. S. 1919; Pharis v. Jones, 122 Mo. 125; Campbell v. Brown, 146 Mo.App. 324; Wilson v. Purl, 148 Mo. 449. (6) There is no estoppel which can be urged in this court. The plaintiff made no valuable improvements on the property in controversy, and if she exercised acts of ownership after she parted with the title, she did not commit these acts in the belief she was still the owner. She had made her solemn deed of conveyance, and she must be presumed to know that she parted with her title and had none when she exercised her alleged acts of ownership over the fifty-two feet. After the conveyance was made, the assessment for taxes continued thereafter on the lots as a whole, and plaintiff continued to pay all the taxes thus assessed. But this voluntary payment of taxes will not estop the rightful owner from asserting title to the property. Kellogg v. Moore, 271 Mo. 189. The alleged acts of the defendant and her husband relied upon by the plaintiff as working an estoppel, cannot be invoked by the plaintiff. She had parted with the title by a solemn warranty deed, and it was duly recorded. She then is conclusively presumed to have known of this title being in the defendant's husband, and will not be allowed to avail herself of an estoppel when she knew or had the same means of knowledge as did the defendant and her husband. DeLashmutt v. Teetor, 261 Mo. 412. Estoppel can never be relied upon to give or create a cause of action, and can only be invoked to preserve rights already acquired and not to create new ones. Berry v. Bonding Co., 221 S.W. 751.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

This is a suit to ascertain and determine title to real estate, commonly known as a suit to quiet title. From a decree rendered by the court in favor of defendant, plaintiff appealed.

The petition avers that plaintiff owns and possesses lots 17 and 18 in block 28 of the original town of Hayti, Pemiscot County; that defendants claim some interest therein by virtue of a warranty deed purporting to have been signed and executed by plaintiff but denied by her, which was a voluntary conveyance on the part of her husband without consideration. It further avers title in plaintiff by adverse possession, praying the court to ascertain and determine the title and to set aside and cancel the warranty deed, and for general relief.

Defendants after a general denial, deny that plaintiff owns or possesses the north fifty-two feet of...