Dowd v. Bond

• Decision Date: 22 December 1917
• Docket Number: No. 18874.,18874.
• Citation: 199 S.W. 954
• Parties: DOWD v. BOND et al.
• Court: Missouri Supreme Court

199 S.W. 954

DOWD v. BOND et al.

No. 18874.

Supreme Court of Missouri, Division No. 1.

December 22, 1917.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by Thomas Dowd against Newton Bond and Joseph H. Despain. From a judgment dismissing plaintiff's petition, he appeals. Reversed and remanded, with directions.

On June 23, 1914, plaintiff filed in the circuit court of Howell county, Mo., his petition to quiet title to about 8 acres of land described therein. He alleges that said land is in his possession, within his inclosure, and has been for the 10 years last past; that he and his grantors, for 10 years last past, maintained an inclosure around said land, and have been in the open, continuous, exclusive, hostile, and adverse possession of the same for the whole of said period of 10 years and more, claiming title thereto; that they have paid taxes and made valuable improvements thereon; that by reason of the foregoing he is invested with full title to said land. He prays for a decree, declaring him to be the owner of said real estate, and divesting said defendants of any interest therein, etc.

Defendant Newton Bond answered with a general denial. Defendant E. H. Carter answered and admitted therein that he claims title to said land, but denies every other allegation in petition. He alleges that he is vested with both the legal and equitable title to said land; that he acquired said title by general warranty deed from defendant Newton Bond, who was seised of such title, prior to the execution of said warranty deed. He prays the court to quiet title to said land in him; that whatever interest the plaintiff has may be divested and the same vested in him by the decree of the court. Defendant Joseph H. Despain was not served with process, nor did he appear to the action.

Plaintiff's Evidence. Witness Bragg testified in substance that plaintiff fenced the 8 acres in controversy in 1902, and claimed to be the owner of it to everybody. S. M. Ritchie testified in substance that 9, 10, or 11 years before the trial, and after plaintiff bought the farm, he helped him fence the 8 acres. It was fenced with 32 acres of plaintiff's land. It had a two-roomed house on it, but was not in cultivation. Plaintiff was sworn as a witness in his own behalf, and testified in substance that he had been claiming the 8 acres in controversy for about 15 years before the trial; that he afterwards inclosed it; that he paid the taxes thereon for 17 or 18 years; that he built a house on the land, and partially dug a well thereon; that he has claimed, as against everyone, for more than 10 years, to be the owner of said land; that he never had any title to it and never paid anything for the land. Tax receipts were introduced in evidence by plaintiff, showing that he had paid the taxes on the land in question for the last 10 years prior to 1913. Plaintiff offered in evidence a warranty deed from Newton Bond and wife to Wm. Russling, dated June 30, 1888, conveying the land in controversy with other lands. This deed was duly acknowledged and recorded in said county on November 10, 1888. Plaintiff then rested.

Defendants' Evidence. G. T. Brown, county assessor, testified in substance that in 1911 plaintiff told him that he had 8 acres of the old Bond land which did not belong to him, and that he did not want to pay taxes on it. It had been assessed to plaintiff, and it was then assessed as unknown for 1913. He did not know that this was the land in controversy. Plaintiff denied having had the conversation testified to by Assessor Brown.

The above was all the evidence in the case. It was tried before the court without a jury and without instructions.

The judgment rendered in the case, without caption, reads as follows:

"Now on this day comes this cause for trial and both parties announce ready, and after hearing the evidence and argument of counsel the court finds that the evidence fails to show any title of any kind in plaintiff's petition, and it is ordered that his petition herein be dismissed, and that he take nothing by this action, and that all costs be taxed against plaintiff, and that execution issue therefor."

Plaintiff, in due time, filed his motion for a new trial, which was overruled, and the cause duly appealed by him to this court.

J. L. Van Wormer, of West Plains, for appellant. G. H. Cobb and M. E. Morrow, both of West Plains, for respondents.

RAILEY, C. (after stating the facts as above).

I. This suit was brought by plaintiff under section 2535, R. S. 1909, to quiet title to the 8 acres of land in controversy, as against defendants Bond and Carter. Both plaintiff and defendant Carter called upon the court by their pleadings to ascertain, determine, and declare by its decree the title as between them. Section 2535, supra, reads as follows:

"Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property. And upon the trial of such cause, if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interests, liens and demands whatsoever of the parties, or of any one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them, as fully and with the same force and effect as the court might or could in any other or different action brought by the parties, or any one of them, to enforce any such right, claim, interest, lien or demand, and the judgment or decree of the court when so rendered shall be as effectual between the parties thereto as if rendered in any other, different or separate action prosecuted therefor."

This is an action at law, tried by the court without a jury, and without instructions. If the court had found the issues in favor of defendan...