Dunavant v. Pemiscot Land And Cooperage Company
| Decision Date | 30 January 1915 |
| Citation | 173 S.W. 747,188 Mo.App. 83 |
| Parties | M. E. DUNAVANT, Administrator of the estate of E. H. YOUNG, Deceased, Respondent, v. PEMISCOT LAND and COOPERAGE COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Frank Kelly, Judge.
AFFIRMED.
Case affirmed.
Ward & Collins for appellants.
(1) The court erred in admitting incompetent, irrelevant and immaterial testimony offered by plaintiff, which undertook to vary and contradict a written contract or the record thereof. Childers v. Pickenpaugh, 219 Mo. 451; Chilton v Metcalf, 234 Mo. 27; Smith v. Vickery, 235 Mo 423; Baker v. Underwood, 63 Mo. 84; Roberts v Central Lead Co., 95 Mo.App. 582; Wishart v Gerhart, 105 Mo.App. 112; Simon v. Beauchamp, 1 Mo. 589; King v. Fink, 51 Mo. 209; Weissenfels v. Cable, 208 Mo. 534. (2) Though the parol testimony offered was directed to the record of the deed and not the deed itself; yet that question can make no difference because it is presumed that the record is right and before parole testimony could be introduced to undertake to show (even in a suit in equity to correct the record) that the recorder incorrectly recorded the deed, plaintiff must account for the original. Benton v. Craig, 2 Mo. 198; Lewin v. Dille, 17 Mo. 64; Carr v. Carr, 36 Mo. 408; Price v. Hunt, 59 Mo. 262; Shehan v. Ins. Co., 53 Mo.App. 355. (3) Defendant's demurrer should have been sustained. This is an action for trespass for cutting down and making away with timber and it will not lie against a defendant actually in possession of the land either by himself or his tenants. To maintain a suit for trespass plaintiff must have possession, actual or constructive. Moore v. Perry, 61 Mo. 174; Holliday-Klotz L. & L. Co. v. Markham, 96 Mo.App. 51; Brown v. Hetzel, 87 Mo. 568; Hampton v. Morrey, 53 Mo.App. 501. (4) In a suit for timber cut off of what plaintiff claims to be his land, the legal title is involved. Ozark L. & L. Co. v. Franks, 156 Mo. 673. (5) Where one claiming the title to land is guilty of gross laches, and with full knowledge of his claim allows the opposite party to expend his money, or waits until the property has largely enhanced in value, either from this or other causes, he is barred by laches though not by the statute. Moreman v. Talbott, 55 Mo. 392; Loomis v. Railroad, 165 Mo. 495; Kroenung v. Goerhie, 112 Mo. 648; Kline v. Vogel, 90 Mo. 247; Shelton v. Horrell, 232 Mo. 374; Cochrell v. Hutchison, 135 Mo. 75; Rutter v. Caruthers, 223 Mo. 640; Stevenson v. Smith, 189 Mo. 446; Landrum v. Bank, 63 Md. 56.
N. C. Hawkins, and Shepard, Reeves & McKay for respondent.
(1) The lands were actually sold to "Dewitt" and "Dewitt" was actually written in the deed and the transcription of the name as Dervitt did not deprive "Dewitt" of title, nor does it deprive E. H. Young of title since Frank E. Dervitt and Frank E. Dewitt are idem sonans and the variance is immaterial. The following have been held to be idem sonans: Havely-Haverly--State v. Havely, 21 Mo.Supp. 489; Maier-Meyer--Maier v. Brock, 222 Mo. Sup. 74; Davison-Davidson--Davison v. Loan Assn., 166 Mo.App. 625; Whinny-Whinnery--Whinny v. Lbr. Co., 132 S.W. 661; Alwin and Alvin--Jockisch v. Hardtke, 50 Ill.App. 202; Erwin and Irvin--Williams v. Hitzie, 83 Ind. 303; Conavay-Conaway--Conoway v. Hays, 7 Blackf. (Ind.) 159; Thweatt-Threet--Golden v. State, 55 Ala. 178; Van Nortrick-Van Nortwick--Mallory v. Riggs, 76 Iowa 748; Lovett-Lovatte--Lovett v. S., 9 Ga.App.232. (2) Defendant (if it is to be believed) had for many years been asserting title to the lands in question and has no other than the tax title as a basis for its claim, hence it assumed a common source of title. Sec. 6346, R. S. 1909; Williams v. Sands, 251 Mo. 147; 15th Cyc. page 66. (3) The defendant is not in a position to avail himself of the doctrine of estoppel. Caveat emptor applies to tax sales and a purchaser is charged with notice of irregularaties disclosed by the record. 35 Cyc. 1525 Ca. (4) There is no evidence in this case tending to establish estoppel by abandonment or laches. Mere payment of taxes without possession will not constitute laches. Hoarstick v. Gabriel et al., 200 Mo. 242; Williams v. Sands, 251 Mo. 147. (5) Estoppel by conduct, abandonment, does not apply unless the party knew of his rights and that they were being infringed. Howell v. Jump, 140 Mo. 441; Moore v. Crawford, 130 U.S. 122. (6) The judgment was for the right party, in the proper amount, even less than the testimony warranted by $ 340, and this being a suit at law wherein the plaintiff recovered, the error, if any, committed by the trial court against appellant did not materially effect the merits of the action, and should be affirmed. Secs. 1856-2082, R. S. 1909; Thompson v. Stillwel, 253 Mo. 89; Peterson v. Transit Co., 199 Mo. 331; Gillespie v. Hendren, 98 Mo.App. 627.
--This is a suit for trespass alleging that the defendant company cut, or caused to be cut, and removed the timber on one hundred and sixty acres of land in Pemiscot county, Missouri, owned by plaintiff intestate, E. H. Young, who died in 1912, shortly before this suit was brought. The suit is by Young's administrator, but, as the cause of action accrued to him during his lifetime, he will be spoken of as the plaintiff. Carl Bloker, secretary of the defendant company and its active manager, was originally a defendant, but the cause was dismissed as to him on proof that all his acts were for his company. The jury, under the court's instructions, returned a verdict for plaintiff for $ 1250 and defendant appeals. The trespass was committed in 1909 and 1910 and there is no question but that the defendant, claiming the right to do so, sold the timber on said land and authorized and directed the timber to be cut and removed therefrom. Defendant denies plaintiff's ownership of the land, asserts title in itself, and the chief question at issue is that of title. The court treated plaintiff's title as fully established by the evidence and instructed the jury on that theory.
The land has never been enclosed, improved, or in the actual occupation of any one. It is, or at least was until recently, swamp land and chiefly valuable for its timber. On and prior to January 1, 1895, one S. H. Beverforden owned this land under a perfect chain of title. On that date he, jointly with his wife Emma A., made and executed a warranty deed, which, as recorded, shows the land conveyed to Frank E. Dervitt, of Jackson county, Missouri. There has never been any conveyance from Frank E. Dervitt to any one, nor is there any evidence, direct or circumstantial, that any such person ever existed, except as may be inferred from the record of this deed. The next conveyance of the land is a deed from Frank E. Dewitt, of Independence, Jackson county, Missouri, to E. H. Young, of the same county. This deed is properly acknowledged before a notary public of that county. In March, 1897, E. H. Young paid the taxes on this land for four years, being 1892 to 1896 inclusive. The taxes for 1897 and 1898 being delinquent, a suit for delinquent taxes was instituted in 1900 against E. H. Young, resulting in a judgment and sale of the land and a sheriff's deed, dated February 22, 1901, conveying the land to one William Hunter. The defendant claims by mesne conveyances under this tax deed. At that time Young was a resident of Kansas and service was had in the tax suit by publication. The purchaser at the tax sale, Hunter, sold and conveyed the land in 1902 to several persons, who then, or later, formed the defendant company, an Ohio corporation, and at once conveyed the land to it.
When the trespass was committed in 1909 and 1910, the defendant company, or Carl Bloker who held the legal title for it, had and claimed no title to this land except that derived from E. H. Young under the tax sale and deed above mentioned. It is shown that this tax sale and deed is void and conveyed no title because the petition in the tax suit failed to describe the land in controversy, which is in section three, but described other land in section thirteen. The court obtains jurisdiction to render judgment against a particular tract of land and to sell same for delinquent taxes only by a petition correctly describing such land. It is held in O'Day v. McDaniel, 181 Mo. 529, 534, 80 S.W. 895, that: Nor does it aid the title based on such tax deed that the tax bill filed with the petition, the order of publication, the judgment, execution and sheriff's deed correctly describe the land. [Vaughan v. Daniels, 98 Mo. 230, 11 S.W. 573.]
At the time of this trial the original petition and other papers constituting the roll in the tax suit were lost or destroyed. These papers were, however, in existence at the time the controversy arose over...
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