Davis v. Dawson

• Decision Date: 18 February 1918
• Citation: 201 S.W. 524,273 Mo. 499
• Parties: CARRIE D. DAVIS et al., Appellants, v. WILLIAM DAWSON et al., Appellants
• Court: Missouri Supreme Court

201 S.W. 524

273 Mo. 499

CARRIE D. DAVIS et al., Appellants, v. WILLIAM DAWSON et al., Appellants

Supreme Court of Missouri

February 18, 1918

Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.

Affirmed.

John A Hope, Leslie C. Green and Ernest A. Green for plaintiffs.

(1) The record title to all of the lands in controversy was in the plaintiffs and they were entitled to recover all of the lands in controversy, unless barred by the provisions of Sec. 1879 or 1884, R. S. 1909, known as the ten and thirty year Statutes of Limitations respectively. The sheriff's deed from Thomas H. Dawson, to George W. Dawson, dated April 20 1857, and recorded April 24, 1857, was effectual to convey to George W. Dawson all title to the lands described therein that said Thomas H. Dawson might have had therein at that date. Davis v. Kline, 76 Mo. 310; Ellis v Jones, 51 Mo. 180; Stewart v. Severance, 43 Mo 322; Union Bank v. McWharters, 52 Mo. 34; Lewis v. Morrow, 89 Mo. 174; Block v. Morrison, 112 Mo. 343; Price v. Real Estate Assn., 101 Mo. 119 Davis v. Peveler, 65 Mo. 189; Randall v. Snyder, 214 Mo. 23. (2) The trial court erred in holding that the plaintiffs were barred from recovering any portion of the lands in controversy by virtue of the provisions of Sec. 1879, R. S. 1909, known as "the ten-year Statute of Limitations." The testimony wholly failed to show that there had been actual, open, hostile, exclusive and continuous possession under claim of ownership of any portion of the lands in controversy, by defendants or other ancestor, Thomas H. Dawson, for any period of ten consecutive years. Cook v. Farrah, 105 Mo. 492; Meier v. Meier, 105 Mo. 411; Wilkerson v. Thompson, 82 Mo. 317; Nye v. Alfter, 127 Mo. 529; Hunnewell v. Adams, 153 Mo. 440; McCune v. Goodwillie, 204 Mo. 306. (3) The trial court's judgment is in the face of the law as declared by it in declaration of law number five. In order for plaintiffs to be barred from recovering by the provisions of Sec. 1884, R. S. 1909, known as the thirty-year Statute of Limitation, the proof must have shown (which it did not) that the defendants and their ancestor, Thomas H. Dawson, or some person other than the plaintiffs or their ancestor, had been in actual possession of the lands in controversy for some period of thirty-one consecutive years prior to the filing of this suit; since, during the time that there was no actual possession by any person, the record title of plaintiffs drew the constructive possession to them, and placed them in possession within the meaning of the provisions of the above section. Weir v. Lumber Co., 186 Mo. 388; Hall v. French, 165 Mo. 442; Sell v. McAnaw, 158 Mo. 471; Stone v. Perkins, 217 Mo. 246. (4) There was not sufficient testimony to show that neither the plaintiffs nor those under whom they claim had paid any taxes on the land in controversy for a period of thirty years prior to the bringing of this suit; therefore the provisions of Sec. 1884, R. S. 1909, have no application to this case, and the plaintiffs are not barred by the thirty-year Statute of Limitations. (5) Even if the thirty-year Statute of Limitations had any bearing upon this case, as we deny, still defendants' possession could not be extended beyond what land they have actually been in possession of for more than one year prior to the filing of this suit. In other words the provisions of Sec. 1882, R. S. 1909, relative to color of title, do not apply to the thirty-year statute. Collins v. Pease, 146 Mo. 135; De Hatre v. Edmonds, 200 Mo. 246; Scannell v. American Co., 161 Mo. 619; Crispen v. Hanahau, 50 Mo. 536; Stevenson v. Black, 168 Mo. 549; Schultz v. Lindell, 30 Mo. 310; Ivy v. Yancey, 129 Mo. 501. (6) The Court erred in not rendering judgment in favor of the plaintiffs for all of the land known as the Miller Tract. As to this land defendants could not recover, as they had no paper title whatever to the same and there was no showing of a sufficient possession to justify a recovery on their part by virtue of limitations. Pharis v. Jones, 122 Mo. 125; Sec. 1882, R. S. 1909; Schultz v. Lindell, 30 Mo. 310; Fugate v. Pierce, 49 Mo. 441; Wilson v. Purl, 148 Mo. 449. (7) The fact that these lands or any portion thereof were subject to overflows from the Mississippi River cannot aid the defendants in their defense of either the ten or thirty year Statute of Limitations, since those statutes only confer title upon those who are in actual possession for the requisite length of time, and during the time that said lands were overflowed and there was no actual possession thereof by any one possession was constructively in the holders of the legal title to said lands. Western v. Flanagan, 120 Mo. 61.

James A. Seddon also for plaintiffs.

(1) The lower court found against the defendants on the issue of facts whether or not there was a lost deed as claimed. The record shows that there was no evidence of a conclusive nature that such a deed had ever existed. The presumption of such a deed, if any, must be predicated on the alleged facts shown by the witnessess of the defendants. None of this evidence was admitted to be true and much of it was contradicted by the witnesses of the plaintiffs. Hunter v. Wethington, 205 Mo. 284. The defendants asked no instructions and excepted to no ruling of the trial court during the progress of the trial. They rely on no error of law in their brief. They can and do only complain that the finding of the court, in awarding a part of the lands to the plaintiffs, is against the weight of the evidence, which they contend shows that Wash Dawson made a deed not recorded but now lost, to Thomas H. Dawson, conveying to him all these lands. This being an action at law, this court cannot disturb the finding of the trial court on that issue. Slicer v Owens, 241 Mo. 319. (2) The trial court under the principle of color of title applied to the thirty-one year statute, found in favor of the defendants for all of the Netherton Tract. We concede that the doctrine or principle of color of title whereby the possession of a part of a tract of land is extended by construction to a whole tract, as declared in Sec. 1882, R. S. 1909, applies with the same force and in the same manner to the thirty-one year Statute of Limitations as it does to the ten-year statute. Keaton v. Hamilton, 264 Mo. 564. But it applies with no greater force. While it is applicable to a proper case under this statute, it has no application under the facts of this particular record. No question of color of title can possibly arise touching the claim of the defendants to the Miller Tract, for they never had any paper or record title to it. But the court erred in its application of the doctrine of color of title to the claim of the defendants to the Netherton Tract under the thirty-one year Statute of Limitations. By its application it found that by reason of the possession by the defendants of a part of the Southwest fractional quarter of section 6 for a year, and the exercise of acts of ownership over the rest of the Netherton Tract, the possession of the part of the tract drew to it by construction, the possession of the whole, to which the title of the defendants was perfected by the judgment. It is beyond dispute that there was no actual possession or claim of such possession of any part of the Netherton Tract except that part of the Southwest fractional quarter of section 6, which was fenced by Dr. George W. Dawson since 1904. All the rest of it was and is unfenced, wild or timber land, and if the defendants are to recover in this case any part of that tract not now fenced, it must be by the doctrine of color of title. Thomas H. Dawson could assume the relation of an adverse claimant of the lands, only by some unequivocal act of disseisin, and ouster, equivalent to an entry, and of such a nature as to surely advise Wash Dawson of the fact of the change of the permissive relation. In making that act of disseisin or ouster of Wash Adams, if it was made at all, the heirs of Thomas H. Dawson had no title or deed to constitute color of title. We must distinguish in this case between possession under a claim of title and under color of title. "The distinction lies in the quantum of the land possessed. As in the case of the real title, a constructive possession attaches itself to color of title." Title to land by adverse possession without color of title will be confined to the part actually occupied. Rannels v. Rannels, 52 Mo. 108. Constructive possession of a whole tract by reason of actual possession of a part is never based upon a "claim of title" merely. That there shall be color of title there must be a deed purporting to convey the whole or some proceeding or instrument giving color and defining boundaries as well as active possession of a part. Slicer v. Owens, 241 Mo. 319; Fugate v. Pierce, 49 Mo. 441; Long v. Higginbotham, 56 Mo. 245; Allen v. Mansfield, 108 Mo. 343. (3) The trial court erred in overruling the objection of the plaintiff to the introduction in evidence of the inventory of the estate of George W. Dawson. It is true that it showed that these lands had not been inventoried. But this merely showed a breach of duty of the executrix. For it is the duty of the legal representative to inventory all the real estate, of which the title appears of record and leave the question of a better right in another, to the courts. It was not shown that the executrix ever took possession of the real estate or that there was ever any order on her to do so. Therefore even a positive declaration as to the title by her in the inventory could not have bound the heirs or in any wise have affected their rights in the land, either favorably or prejudicially. (4) There was no evidence that Laura A. Dawson had not paid...