Dunn v. Miller

• Decision Date: 31 October 1881
• Citation: 75 Mo. 260
• Parties: DUNN v. MILLER, Plaintiff in Error.
• Court: Missouri Supreme Court

75 Mo. 260

DUNN

v.MILLER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals.

REVERSED.

D. T. Jewett for plaintiff in error.

The judgment in the former suit is conclusive that in May, 1872, the right of possession was in Miller, and that it continued in him till at least after judgment, because our statute of ejectment provides that if the plaintiff's right of possession expires before judgment, it may be pleaded, and he shall only have judgment for costs and damages to that time. It also settles the question that Dunn cannot recover in this action on any presumption of title arising from the fact of possession before May, 1872. Whitney v. Wright, 15 Wend. 179; Jackson v. Rightmyre, 16 John. 325; Arnold v. Arnold, 17 Pick. 4; Jackson v. Tuttle, 9 Cow. 234; Jackson v. Walker, 7 Cow. 642; Beebe v. Elliott, 4 Barb. 457; Marshall v. Shafter, 32 Cal. 185, 196. It also results from that judgment that Dunn had no possession to count after May, 1872. There was no statute in Missouri till 1821 authorizing a husband and wife to convey the wife's land. Prior to the adoption of the common law in 1816, the Spanish law was in force in the territory of Missouri. There never was any Spanish law, that I can find, that authorized the wife alone, or the husband and wife alone, or the husband and wife together to convey the “dote” or the ““arras,” that is, the lands given by the wife to the husband, or the husband to the wife, on marriage. Neither did the common law when it came into force authorize it. Under that system a married woman's property could only be conveyed by fine and recovery, a process in court. 3 Washb. Real Prop., p. 217, § 17; Bouv. Law Dic., title “Fine;” Garnier v. Barry, 28 Mo. 345. A conveyance will not be presumed unless it would have been lawful if made. It cannot, therefore, be presumed in this case. Moreover, if Lucas was alive in 1817, he was tenant for life of the New Madrid land, had the right of possession and such title, as our courts have repeatedly decided, as would maintain or defend our action of ejectment, and as could be sold and give his grantee the same rights he had. That a man holding such a title conveys a fee, is no fact upon which to found a presumption of the existence of a deed to him of the fee. Jackson v. Mancius, 2 Wend. 357. There was no occasion for her to join in a deed to his interest in the land. All that was done would naturally be done without her. She could not have prevented it. No presumptions can be made against the rights of a married woman; her hands are tied. Meegan v. Boyle, 19 How. 146, 150. She could not prevent her husband selling the land and putting the grantee into possession; for, under all laws, he had the right of possession, and could transfer that, if he could not the fee even when joining with her. There is nothing in this case to show that Mrs. Lucas ever sanctioned, or had any knowledge of this pretended sale, or of any exchange of land. No presumption from knowledge and silence can be drawn. But, further: The presumption of a deed can be invoked only by one who holds under the title to be made out by the deed, the existence of which is to be presumed. The lost deed must be a part of his title. Dessaunier v. Murphy, 27 Mo. 51. There is no case where a party has been allowed to presume a deed to destroy his opponent's title or a chain of title put in by his opponent, when the party invoking the presumption does not ask it in his chain of title.

Henry M. Bryan for defendant in error.

Upon these grounds: thirty years of continuous, peaceable possession; purchase for full consideration of the only title of record in St. Louis county, emanating from the person whom the United States recognized as the true owner of the New Madrid land, and from whom it received a deed reciting the fact and evidence of such ownership; the expenditure of money in good faith in constructing a home and making other improvements; the payment of taxes; the fact that the land in controversy is but parcel of a large tract of land in the immediate vicinity of the city of St. Louis, that up to 1872 it had been claimed and possessed under title from Chas. Lucas alone, subdivided into city lots and blocks, bought and sold and built upon in undoubting confidence in that title, with no adverse claim on the part of Sarah Lucas for fifty years, or at least with no notice (actual or constructive) of that claim by any of the occupants of the John Brooks survey, we ask the court to presume a deed from Sarah Lucas; on the ground, in brief, that the existence of the deed is consistent with all the facts and circumstances of this case, and inconsistent with none. Doming v. Miller, 33 Barb. 386; Mayor v. Horner, Cowp. 102; Eldridge v. Knott, Cowp. 214; Archer v. Saddler, 2 Hen. & Mun. 370; Stillman v. White Rock, etc., Co., 3 Wood. & M. 541; Bedle & Beard's case, 12 Co. 5; Hillary v. Waller, 12 Ves. 239; Fishar v. Prosser, Cowp. 217; Prevost v. Gratz, 6 Wheat, 481, 504; Ricard v. Williams, 7 Wheat. 109; Jackson v. McCall, 10 John. 380; Jackson v. Pratt, 10 John. 381; Jackson v. Lunn, 3 John. Cas. 109; Beall v. Lynn, 6 Harr. & J. 361; Rhode Island v. Massachusetts, 4 How. 639; Piatt v. Vattier, 9 Pet. 405; Ewing v. Burnet, 11 Pet. 41; Newman v. Studley, 5 Mo. 295; Starkie Evidence, part 4, 12, 27, 28; McNair v. Hunt, 5 Mo. 300; McDonald v. Schneider, 27 Mo. 411; Allston v. Saunders, 1 Bay (S. C.) 26; Jackson v. Miller, 6 Wend. 228; Bealey v. Shaw, 6 East 213; Melvin v. Proprietors, 16 Pick. 137; s. c., 17 Pick. 255; Thomson v. Peake, 7 Rich. (S. C.) 353; Smith v. Asbell, 2 Strobh. 141; Gilchrist v. McGee, 9 Yerg. 455; Williams v. Donell, 2 Head 695; Nixon v. Carco, 28 Miss. 414; Wallace v. Fletcher, 30 N. H. 434; Caruthers v. Eldridge, 12 Gratt. 670; Mason v. McLean, 13 Ired. 262; McLeod v. Rogers, 2 Rich. 19.

W. H. Clopton also for defendant in error.

In Whitney v. Wright, 15 Wend. 179, relied on by defendant, the former recovery had been acquiesced in for thirteen years, and the prior possession was without evidence of title. In Jackson v. Rightmyre, it was held that a presumption founded on a prior possession--a mere naked possession-- perished with the loss of that possession by judgment and execution eighteen years before. These cases hold that an entry under judgment destroys presumptions of title acquired by possession merely--that transmutation of title accomplished by mere entry and adverse possession for a long period, defined in Nelson v. Brodhack, 44 Mo. 596; Merchants' Bank v. Evans, 51 Mo. 335; Shepley v. Cowan, 52 Mo. 559; Barry v. Otto, 56 Mo. 177; Ridgeway v. Holliday, 59 Mo. 444. These cases held that ten years' possession will not only extinguish the true owner's title, but will confer it upon the adverse occupant. It is the presumption of that kind of title which the cases relied on by defendant hold to be extinguished by an entry under judgment. I think the principle of those cases is that the adverse occupant had abandoned the rights he had acquired by limitation. An examination of the cases will show that a long time elapsed between the evictions and the new suits. The presumption invoked by plaintiff was a presumption of grant; that Sarah Lucas (or Graham) conveyed to Charles Lucas between the date of the marriage contract, to-wit: December 8th, 1808, and the date of the deed by Charles Lucas to Tanner, November 5th, 1816. The possession under Charles Lucas cannot be explained, except by the presumption of such a deed. There is absolutely nothing tending to rebut that presumption, except the deed from Sarah Lucas to Gillespie purporting to have been made in 1821, recorded 1872. Defendant refused to introduce that deed although he had the same proofs as to its execution, on which it was admitted in Miller v. Dunn, but falls back on his entry under execution and says it extinguished the presumption of a grant from Sarah Graham, or Sarah Lucas, to Charles Lucas.

RAY, J.

This is an action of ejectment to recover a tract of land included in United States survey 2541, which was made under New Madrid certificate No. 164 in the name of John Brooks or his legal representative. The land in question, as well as the parties to the action, are the same as those involved in the case of Miller v. Dunn, 62 Mo. 216. In this suit, as in the former action, both parties claim under Charles Lucas as the common source of title. A jury having been waived, the cause was tried by the court.

In this action, the plaintiff, after introducing evidence tending to show that John Brooks was the original claimant and owner of the New Madrid land in question, offered in evidence a deed for said land from said Brooks to said Charles Lucas, dated in 1807. He next offered a conveyance from said Lucas to James Tanner, bearing date 1st of January, 1817, and then proceeded to put in evidence what, upon its face, purported to be a formal, regular and unbroken chain of paper title, transferring and conveying to himself whatever title said Lucas, the common grantor, may have had to said lands at the date of his deed to said Tanner; the various conveyances thus offered all being of record in the proper office. The plaintiff then proceeded to show that he, and those under whom he claimed, had been in the actual adverse possession of the land, claiming the same under the chain of title thus put in evidence, from 1841 or 1842 up to May, 1872--the time at which the original suit of Miller v. Dunn, supra, was commenced, and under which, by due judgment and process of law, the said Dunn was turned out and the said Miller put in the possession of said land at the termination thereof in April, 1876. It also appeared that no person had ever been in the actual possession of said land prior to 1841 or 1842, when Gay first took the possession. The plaintiff also put in evidence the act of Congress of June 30th, 1864, releasing and transferring the legal title to said land...