Fleming v. Wilson

• Decision Date: 28 March 1919
• Docket Number: No. 19911.,19911.
• Citation: 211 S.W. 73,277 Mo. 571
• Parties: FLEMING v. WILSON.
• Court: Missouri Supreme Court

211 S.W. 73

277 Mo. 571

FLEMING v. WILSON.

No. 19911.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Suit by Mark T. Fleming against Nettie Wilson. From a judgment for plaintiff, defendant appeals. Affirmed.

Ward & Reeves, of Caruthersville, for appellant.

J. E. Duncan and J. R. Brewer, both of Caruthersville, for respondent.

BOND, C. J.

I. Plaintiff sues to quiet the title to a certain 80 acres of unimproved timber land in Pemiscot county, Mo., alleging that defendant claims some right, title, estate, or interest adverse to him. The answer was a general denial, coupled with an allegation of title in defendant, and a plea of abandonment, estoppel, and laches on the part of plaintiff.

Plaintiff's claim of title dates from a patent to the state of Missouri, under an act of Congress approved September 28, 1850, followed by a conveyance to Pemiscot county by the state of Missouri. The next link is a patent from Pemiscot county to Alexander Barnes, and then follows a devise by said Barnes to his wife, Agnes, a deed from Agnes Barnes (Cropper) and her husband to H. G. McIlravy, from whom plaintiff, Fleming, purchased. This latter deed bears date of June 24, 1890, but was not filed for record until the 19th day of March, 1895, 5 years after plaintiff purchased the land.

Defendant, Nettie Wilson, claims title in this way: In 1889 H. G. McIlravy mortgaged the land to one Agnes Cropper, and on September 3, 1895, the land was sold for taxes to R. F. Michie and R. B. West. Thereafter West sold his interest to William Hunter, and on September 4, 1897, R. F. Michie purchased the interest of William Hunter. Later said Michie died, and left defendant, Nettie Wilson, his widow, and, she electing to take a child's part, this 80 acres of land was set apart to her.

The testimony of plaintiff, Fleming, shows that he led a roving life, going from Illinois to Missouri, thence to Arkansas, Texas, and Alaska, but finally locating in Oregon in 1901, where he has lived until the present time; that he bought the land in controversy on June 24, 1890, from H. G. McIlravy for $1,000, and assumed a mortgage of about $250; that later (about 1892) he exchanged 80 acres of this land with one Denham for land in Illinois, and at that time it was discovered the McIlravy deed had not been recorded; that Denham took both deeds with the understanding that he was to have them recorded; that he (plaintiff) was unable thereafter to get in touch with Denham, although he wrote to him at various times and addresses; that he left the land in charge of his sister, and believed she or Denham would see that the taxes were paid, particularly as he had given Denham permission to use the balance of his land adjoining his 80 acres "if he would fix it up, clear it, and pay the taxes until he got it where it would pay, and when it would pay my sister would settle with him for whatever rent there might be coming for the use of the land"; that when he heard of his sister's death he tried to find her papers, and failing to do that he employed an attorney to look into the matter. This suit resulted.

Defendant's testimony shows that H. C. McIlravy mortgaged the land in 1889 for $250 to one Agnes (not Eugene) Cropper; that on September 3, 1895, the sheriff sold the "interest of H. G. McIlravy and Eugene Cropper, mortgagee," in said land to one R. F. Michie and R. B. West, to cover taxes of the years 1890 and 1892, and it is from this source that defendant's title runs.

At the close of the evidence a verdict was directed in favor of plaintiff. Defendant duly appealed.

II. There are, in the ultimate analysis, only two questions presented by this appeal: First, whether or not plaintiff got the title to the land in controversy of the admittedly common ancestor, McIlravy; second, if so, whether he was barred in the assertion thereof by laches, estoppel, or abandonment.

As to the first: The record shows that on June 24, 1890, H. G. McIlravy executed a warranty deed, subject to a mortgage of $250, conveying the land to plaintiff. This was done in St. Louis, and the deed was acknowledged there before a notary public of that city, whose certificate shows that the grantor, a single man, acknowledged the deed on the "24th day of June, 1895" (italics ours); that his term as a notary would expire on "March 31, 1893." The deed further...