Dunn v. Miller

• Decision Date: 12 November 1888
• Citation: 9 S.W. 640,96 Mo. 324
• Parties: DUNN v. MILLER et al.
• Court: Missouri Supreme Court

9 S.W. 640

96 Mo. 324

DUNN v. MILLER et al.

Supreme Court of Missouri.

November 12, 1888.

1. FORGERY — EVIDENCE — CONFESSIONS.

The deed under which defendant claimed was dated March 23, 1821. It was written on old paper, marked, "Budgen 1799," was witnessed by R., P., and S., and whose affidavits were taken by H., circuit clerk of N. county. Attached was a certificate of the recorder of S. that the deed was filed in his office, February 26, 1872. Afterwards a person was arrested, having in his possession forgers' materials, such as the seals of various public officials, blanks, deeds, etc. He also had the signatures of R., S., and the circuit clerk of N. county, and an impression of his seal; also a sheet of paper marked, "Budgen 1799." On his examination he confessed that the deed in question was a forgery. Held sufficient to prove that the deed was a forgery.

2. JUDGMENT — EQUITABLE RELIEF — ACTION INVOLVING TITLE TO REAL ESTATE.

Plaintiff's land was recovered by one who claimed under a deed from a former owner. It was afterwards discovered that the deed was a forgery, and plaintiff brought ejectment, but defendant relied on the former owner's outstanding title, instead of the deed, and plaintiff could not show the forgery. He then brought an equitable action, stating these facts, and asking relief against the former judgments. Held a case "involving title to real estate" within Const. Mo. art. 6, § 12, providing for the removal of causes from the St. Louis court of appeals to the supreme court, and that was properly removed.

3. SAME — LIMITATION OF ACTIONS — RUNNING OF STATUTE.

The recovery from plaintiff by defendant was had in 1876. In 1882 plaintiff brought his equitable action, setting out the former actions, and the facts concerning the fraudulent deed. Held, that the action was not a personal, but a real, action, and was not barred by Rev. St. Mo. § 3219, providing that an action for land cannot be maintained unless plaintiff was seized or possessed within 10 years before action brought.

Appeal from St. Louis circuit court; ELMER B. ADAMS, Judge.

Equitable action by John A. Dunn against the heirs, assigns, etc., of George C. Miller, to annul certain judgments in ejectment in favor of George C. Miller against John A. Dunn, theretofore rendered, and to enjoin defendants from taking any action under the judgments. Judgment was entered for defendants, and plaintiff appealed to the St. Louis court of appeals, whence the cause was removed to the supreme court under the amendment to the constitution.

W. H. Clopton, R. A. Bakewell, and A. R. Taylor, for appellant. Hitchcock, Madill & Finkelnburg, for respondents.

BRACE, J.

On the 9th of June, 1873, George C. Miller obtained judgment in the St. Louis circuit court against John A. Dunn, the plaintiff herein, in ejectment for the recovery of the possession of the premises described in plaintiff's petition. On appeal to the supreme court, this judgment was affirmed on the 28th of February, 1876, (Miller v. Dunn, 62 Mo. 216,) and on the 6th of April, 1876, Dunn was evicted and Miller put in possession of the premises by virtue of final process of said circuit court upon said judgment. The questions adjudicated in that case appear in the following statement of NAPTON, J.: "This is an action of ejectment to recover a tract of land included in United States survey 2,541, which was made under New Madrid certificate No. 164, in the name of John Brooks, or his legal representatives. The record of the trial shows that both parties claim under Charles Lucas, who bought of Brooks in 1807. Charles Lucas, on December 4, 1808, by a marriage contract with Sarah Graham, conveyed his property to her in contemplation of marriage, which was recorded April 29, 1809. During the marriage Charles Lucas conveyed this property to one Turner, and from Turner the title passed through various persons to defendant. After the death of Lucas, his wife conveyed the same property to one Gillaspie, and plaintiff possesses the title so acquired. On the trial the plaintiff had judgment. There seem to be only two questions involved in this case: First, as to the validity and effect of this marriage settlement on Sarah Graham, and her conveyance after the death of her husband; and, second, as to the statute of limitations. There is no dispute as to the possession of defendants, claiming under Charles Lucas, for more than twenty years before suit; but as the legal title never passed from the United States until the act of congress of 1864, our state statute of limitations was no bar under the decision of the supreme court of the United States in Gibson v. Chouteau, 13 Wall. 92. Therefore, although entertaining the same opinion as the counsel for defendants in regard to the effect of that decision as overturning and destroying many bona fide possessions acquired and retained on the faith of our state laws and state decisions under these laws, we have no alternative but to pursue the same course taken in the case of McElhinney v. Ficke, 61 Mo. 329." The court, in the opinion, then proceeded to the consideration of the first question stated, and resolved that also in favor of the plaintiff, (Miller.) In this case plaintiff Miller introduced in evidence as links in his chain of title to the premises a deed from Sarah Lucas to Andrew P. Gillaspie, dated March 23, 1821, purporting to be signed by her mark, and witnessed by Stephen Ross, Thomas Philips, and Mark H. Stallcup, written upon a half sheet of old paper, marked "Budgen 1799," folded in the middle for using a sheet about the size of an ordinary sheet of letter paper, on the first two pages of which was written the body of the deed, and on the third appears an affidavit of Ross and Stallcup, proving the execution of said deed, purporting to have been taken April 21, 1821, before C. Y. Honts, clerk of the circuit court of New Madrid county, attached to which is a certificate of the recorder of St. Louis county that the same was filed for record in his office on the 26th of February, 1872; two deeds from Andrew P. Gillaspie to William W. Gitt, — one dated June 27, 1846, the other dated February 3, 1847, — both filed for record in St. Louis county in May, 1872; and a deed from Gitt to one Silver, dated March 22, 1872, in whose name the suit was instituted on 16th of May, 1872, for the benefit of Gitt, at whose request Silver afterwards, pending the suit, at the request of Gitt, executed a deed for the premises to George C. Miller, in whose name it was prosecuted to judgment for the benefit of Gitt and Miller. While this suit was pending in the supreme court, one James Reed was arrested in Quincy, Ill., for forging titles to lands in Illinois. In his trunk was found "forged material and forgers' materials, such as seals, or impressions of seals on sealing wax, of notaries public, commissioners of deeds, court seals, city seals, state seals, blank paper, with water-marks of names of different manufactures, having dates of different periods of time, printed blanks of deeds, a great quantity of old genuine deeds and documents containing signatures and seals of a great number of persons, which deeds to a large extent had been mutilated and defaced by having the seals or impressions of seals taken from them and the signatures traced from them." Among the old deeds and documents thus found were several of different dates from 1816 to 1823, containing the signatures of the said Ross, Stallcup, and Honts, as also "a wax seal, with the impression on it of the circuit court seal, New Madrid county, 1819, with device of seals upon it," and "a blank sheet of paper having a water-mark on one page "Budgen 1799;" on the other page, "crown and scroll," a device. "Pending his examination in Chicago, Reed confessed that the deed from Sarah Lucas to Gillaspie was a forgery;" that he got it up himself for old Dr. Gitt, at the Southern Hotel in St. Louis. The disclosure following the arrest of Reed touching the character of the Sarah Lucas deed coming to the knowledge of Dunn, plaintiff herein, he, on the 2d day of February, 1877, commenced an action in ejectment against Miller to recover possession of the premises from which he had been ousted by Miller under his judgment, and on the 11th day of October, 1877, obtained judgment in the St. Louis circuit court for such recovery, to reverse which Miller, on the 2d day of December, 1878, sued out a writ of error from the St. Louis court of appeals; but, not having obtained a supersedeas, on the 18th of December, 1878, by virtue of process from said circuit court on said judgment, Miller was evicted from, and Dunn restored to the possession of, the premises. On the 23d of March, 1880, the judgment of the circuit court in favor of Dunn was affirmed by the court of appeals, (8 Mo. App. 467,) whereupon Miller appealed to the supreme court, where, on the 6th of March, 1882, the judgment of the circuit court and court of appeals was reversed, and the cause remanded. Dunn v. Miller, 75 Mo. 260.

In the first suit Miller, being out of possession, could not have recovered without introducing the Sarah Lucas deed; in the second suit, being in possession, he rested his case upon the outstanding title of Sarah Lucas, and gained his suit, without introducing the deed. The evidence offered by Dunn for the purpose of showing that it was a forgery could avail him nothing, and was, of course, rejected. At this stage of the controversy, on the 18th of May, 1882, Dunn commenced the present action, which is in the nature of a bill in equity against the defendants, — representatives, assignees, and privies of Miller, who died in 1879, and to whom Gitt theretofore had relinquished all his interest in the premises. The amended petition on which the case was tried, after setting up both plaintiff's and defendants' claim of title as they were shown in the preceding ejectment suits, the adverse possession of plaintiff, and those...