Feller v. Lee

• Decision Date: 02 February 1910
• Parties: FELLER v. LEE.
• Court: Missouri Supreme Court

124 S.W. 1129

225 Mo. 319

FELLER v. LEE.

Supreme Court of Missouri.

February 2, 1910.

1. ADVERSE POSSESSION (§ 68) — CLAIM OF OWNERSHIP — RIGHTS OF SQUATTER.

A trespasser or mere squatter in possession of land under no claim of ownership or title, and admitting himself a wrongful holder, cannot acquire title by limitation.

2. ADVERSE POSSESSION (§ 85) — PRESUMPTION.

Where defendant took possession of land under a deed, it will be presumed that he continued to hold possession thereunder, the burden of rebutting which was on him, under the rule that he who takes possession of land does so under some form of title.

3. EJECTMENT (§ 15) — COMMON SOURCE OF TITLE — INFIRMITIES.

Where, in ejectment, there was a common source of title, the infirmities, if any therein, were common to both parties, and did not affect the controversy.

4. EJECTMENT (§ 15) — COMMON SOURCE OF TITLE — PLAINTIFF'S TITLE — STRENGTH.

Where, in ejectment, there is a common source of title, the rule that plaintiff must recover on the strength of his own and not on the weakness of defendant's title does not apply as to infirmities existing in the title of the common source.

5. MORTGAGES (§ 594) — DEED OF TRUST — EQUITY OF REDEMPTION.

In case of defective foreclosure of a deed of trust, the consequent right of redemption rests in the grantor and cannot be exercised by a stranger to the grantor's title.

6. EJECTMENT (§ 81) — DEFENSES — IRREGULAR FORECLOSURE — EQUITABLE DEFENSE — PLEADING.

Where, in ejectment, defendant's answer admitting possession was a general denial, with no equitable defense pleaded, he could not defeat a recovery because of an equitable defense consisting of a right to redeem from a defective foreclosure of a deed of trust outstanding in a third person.

7. MORTGAGES (§ 341) — DEED OF TRUST — FORECLOSURE — SALE — PERSON ENTITLED TO MAKE — "THEN."

A deed of trust conveyed the property to the "sheriff of W. county," in trust, etc., to hold the same to such grantee and to his successor or successors in trust, and to his or their assigns forever. It further provided that if the grantor made default in certain conditions, at the option of the holder, the "then" acting sheriff of W. county, might sell the property, etc. Held, that time of foreclosure was the potential consideration in the interest of the grantor to which time the word "then" referred, so that the acting sheriff at the time the creditor elected to institute foreclosure proceedings was the sheriff authorized to make the sale.

In Banc. Appeal from Circuit Court, Webster County; Argus Cox, Judge.

Ejectment by Samuel Feller against J. Luther Lee. Judgment for defendant, and plaintiff appeals. Reversed and remanded on opinion in department.

J. P. Smith, C. A. Newton, and Karnes, New & Krauthoff, for appellant.

LAMM, J.

The suit is ejectment. On a trial without the aid of a jury, judgment went for defendant and the cause is here on plaintiff's appeal. Ouster is laid as of March 2, 1905. Other averments of the petition are conventional. The land in dispute is the E. ½ of the S. W. ¼ of section 4, township 28, range 17, Webster county. The answer admits possession and denies other averments.

Plaintiff's case on the proofs and admissions is this: (1) An admission in open court that defendant was in possession. (2) A quitclaim deed from John Rylett to I. S. Wilson, dated March 24, 1891, recorded April 23, 1892. (3) A warranty deed from I. S. Wilson to George B. Hayes, dated September 1, 1894, recorded September 5, 1894. (4) A warranty deed from George B. Hayes to E. Lamphere, dated September 4, 1894, and recorded two days later. (5) A deed of trust from E. Lamphere, party of the first part, to the "sheriff of Webster county, Missouri," party of the second part — George B. Hayes, party of the third part, beneficiary, securing a principal note for $600, due in five years from September 5, 1894, and five annual interest notes for $48 each. (Plaintiff's title hinging on a foreclosure of this deed of trust, its narrations will receive attention hereafter. For convenience, it will be called "A.") Dated the 5th of September, 1894, and recorded one day later. (6) A trustee's deed foreclosing "A" from H. S. King, sheriff of Webster county, Mo., to E. R. Durham, dated May 9, 1903, recorded September 29, 1904. (Some of the narrations of this deed are pertinent to points considered and will receive attention later. For convenience, this deed will be called "B.") (7) A quitclaim deed from E. R. Durham to "Dan F. Blake," dated February 10, 1904, and recorded March 23, 1904. (8) A trustee's deed in bankruptcy from Daniel F. Blake as trustee to Samuel Feller, plaintiff, dated January 23, 1905, recorded two days later. This deed recited, inter alia, that said Blake was elected trustee in bankruptcy of the estate of Robinson Implement Company; that as such trustee he was ordered by the referee in bankruptcy to sell the assets of the bankrupt estate, including the land in question; that in pursuance of said order he sold the land to Feller, and, by virtue of the power of authority in the order of the sale, conveyed it to him. (9) A quitclaim deed from "Dan F. Blake" to plaintiff, dated February 18, 1905, recorded September 26, 1905. (10) It was admitted that the note secured by "A" (Hayes, payee, and Lamphere, payor) at the time of the foreclosure belonged to the bankrupt estate of Robinson Implement Company; that E. R. Durham (purchaser under "B") was at the time acting as temporary receiver of the said implement company, and that he purchased at the foreclosure sale for the benefit of said bankrupt estate; it was shown by plaintiff's testimony, and not contradicted, that the deed from Durham to "Dan F. Blake" (No. 7) was made to said Blake in his capacity as trustee of said bankrupt estate; that plaintiff purchased at the sale of the assets of the bankrupt estate and received a trustee's deed (No. 8), and that Dan F. Blake subsequently quitclaimed to plaintiff in order to convey the record title put in him by No. 7. (11) It was admitted that the rents and profits were of the value of $2 per month. (12) In making plaintiff's case, other admissions were made in open court, viz., that James Goss was the sheriff of Webster county, from January 1, 1893, to the 31st day of December, 1894; that he moved out of the county on March 1, 1900; that he moved back to the county on the 10th day of September, 1900; that he lived with his family in the county until the 16th day of March, 1903, and moved out of the county with his family on that date, and has ever since resided out of it; that J. R. Ray succeeded him, his term running from January 1, 1895, to December 31, 1896; that he was succeeded by James Hailey, whose official term ran from January 1, 1897, to the end of December, 1900; that Hailey was succeeded by Julian, whose official term ran from January 1, 1901, to the end of December, 1902; and that H. S. King (trustee executing "B") was the duly qualified and acting sheriff from January 1, 1903, up to and inclusive of December 31, 1904, and that he was such sheriff on the date he foreclosed "A." (13) Plaintiff also offered in evidence a tax judgment against the land, dated March 28, 1896, against John Rylett, owner, and followed that by putting in evidence a sheriff's tax deed pursuant to such judgment, conveying the land to defendant, said deed dated September 21, 1896, and recorded November 14th, same year.

Defendant's case was this: (1) He put in evidence the plat book of land entries of Webster county, showing the land entered from the government by Thomas M. Kean, under date of September 5, 1857. (2) Next, a tax judgment dated September 30, 1878, in a suit wherein "Thomas McKean" was defendant. (3) Next, a sheriff's deed under such judgment to I. S. Wilson (grantee of John Rylett, under No. 2, in plaintiff's chain of title), which said deed bore date of March 26, 1880, and was recorded the next day. (4) Oral evidence was elicited from defendant in person to the effect that he had been in possession for nine years and six months, had fenced the land, cleared off the timber from about 35 acres, put that much of it in cultivation, and "that he took possession of said land under the tax deed" (see No. 13 in plaintiff's case-made), "but that he was claiming said land by right of possession and not by right of title." His other testimony tended to show that neither plaintiff, nor those under whom he claims, had ever been in possession. (5) Through the cross-examination of defendant, a correspondence got into the case, the letters passing between J. P. Smith, representing the title under the foreclosure of "A" and defendant. The purpose of it was to unite the two titles by buying or selling. In his letters defendant asserted that he had a tax title and wanted an offer on his own or a price on Mr. Durham's title. In one he wanted to know if an abstract and warranty deed would be made if he made an offer. In another, he contrasted his own title with that held by the other side and said his was as good as theirs. In another, he said he thought he had a good title, referring to his tax title. (6) A petition in a suit to quiet title. It was entitled Dan F. Blake, plaintiff, against the present plaintiff and defendant as codefendants. The date of filing, whether summons was sued out on it, and the purpose of introducing it, are dark.

The court gave an instruction for plaintiff that the tax deed under which defendant claims was invalid, and then refused to instruct that "A" was properly foreclosed, and that "B" conveyed title to Durham. Judgment for defendant on the merits following that refusal. Defendant filed two motions here — one to transfer to the St. Louis Court of Appeals, the other, to affirm because of no proper affidavit for appeal. Both motions were overruled. After those motions, defendant became voiceless, filing no brief. Having the burden of showing error to reverse...