Fordyce v. Rapp
| Decision Date | 03 December 1895 |
| Citation | 33 S.W. 57,131 Mo. 354 |
| Parties | Fordyce et al. v. Rapp, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court.
Affirmed.
Wilson Cramer for appellant.
(1) By the sale under execution and the sheriff's deed dated December 2, 1881, the title of Jacob R. Beckwith, Cora A Hill, George B. Clark, and the Little River Valley & Arkansas Railway Company, was cut off and passed to M. W. Lawson, and from him to George B. Clark by deed of February 11, 1882. (2) Upon the consolidation of the Little River Valley & Arkansas Railway Company with the Texas & St. Louis Railway Company in Missouri and Arkansas it transferred to the latter all of its property. The subsequent sale under the execution in favor of Lawson destroyed whatever title the Texas & St. Louis Railway Company had acquired. (3) Even if this had not been so, the evidence introduced by the plaintiffs fails to show the transmission of title from the Texas & St. Louis Railway Company. The deed of George H. Shields, special master in chancery, to William Mortense et al. styled, the "Bondholders' Committee," which was made in pursuance of the proceedings of the federal court, is inoperative to pass any title to the premises in suit because of the following reservation contained in it "Except, however, lands, real estate, and other property not necessary for or used or acquired for the purposes of operation of said railway." No proof was offered to show that the land in controversy did not come within this exception. (4) Possession by defendant at the time of the institution of the suit was one of the essential facts to be shown by plaintiffs, and the court should have given instruction number 4 asked by defendant. (5) The court erred in directing a verdict for plaintiffs, for the following reasons: First. Because the proof shows that the foundation of plaintiff's title had failed and that they had no title at the institution of this suit. Second. Because the evidence shows a superior outstanding title in George B. Clark. Third. Because there is an utter failure of proof of possession.
W. S. C. Walker, W. H. Miller and Sam H. West for respondents.
(1) The deed of Clarke to the Little River Valley & Arkansas Railway Company was a warranty deed, containing the statutory words of conveyance, and it operated to convey by inurement the after-acquired better title of Clarke, obtained in the spring of 1882, to the successor of the original grantee, the Texas & St. Louis Railway Company, in Missouri and Arkansas. See Norfleet v. Russell, 64 Mo. 176. (2) The third proposition of appellant is answered by the terms of the deed of Clarke to the railway company. This "reservation" was acquired by the Little River Valley and Arkansas Railway Company for the purpose of the operation of said railway, and was conveyed for that express purpose. The evidence shows that the depot was built thereon in the winter of 1881, and that side tracks and transfer platforms were built thereon, as the uses and purposes of the company rendered such construction necessary, from 1881 until 1890, at which time the appellant went on the premises and placed his restaurant thereon. (3) The deeds of the St. Louis Southwestern Railway Company sufficiently conveyed the land sought to be conveyed. Railway v. Maffitt, 94 Mo. 56.
This is an action of ejectment by plaintiffs, as receivers of the St. Louis, Arkansas & Texas Railway Company, for the possession of the following described tract of land lying in Dunklin county, to wit:
The petition is in the usual form, and the answer a general denial. From a judgment in favor of plaintiffs defendant appealed.
Both parties claim title under J. R. Beckwith, but as defendant, in his brief, contends that plaintiffs never acquired the title, it becomes necessary to set out the title claimed by the respective parties, plaintiffs and defendant, in full. Plaintiffs offered evidence as follows:
A deed from Jacob R. Beckwith and wife, to the Little River Valley & Arkansas Railway Company, dated August 31, 1881, and recorded September 13, 1881, reciting that grantors "grant, bargain and sell, convey and confirm," the following land: "Beginning at a point in the west line of the highway known as the Clarkton road, one hundred and fifty feet south of the north line of section fifteen, township twenty-two, range ten east; thence southwesterly, parallel with the main track of the Little River Valley & Arkansas Railway Company, of Missouri, five hundred and eighty-five feet; thence southeasterly (at right angles with said main track, one hundred and seventeen feet; thence southwesterly), parallel with, and fifty feet from, said main track, seventy-eight feet; thence south one hundred and twenty feet; thence northeasterly, parallel with said main track, one hundred and forty-three feet; thence southeasterly, at right angles with said main track, one hundred feet; thence northeasterly, parallel with said main track, to west line of said highway, known as Clarkton road; thence north, along west line of said Clarkton road, to point of beginning, containing three and sixty-three one-hundredths acres, more or less."
A deed, in the same form, from Jacob R. Beckwith and wife to Cora A. Hill and George B. Clark, dated July 2, 1881, and recorded July 7, 1881, conveying the following land: "The undivided two thirds interest in, and to, fifteen acres of land off of the east part of the northeast quarter of the northwest quarter of section fifteen (15), in township twenty-two (22) north, of range number ten (10) east."
A deed, in the same form, from Cora A. Hill and husband, E. W. Hill, to the Little River Valley & Arkansas Railway Company, dated August 17, 1881, and recorded September 13, 1881, conveying by the same description, the land described in the deed from Jacob R. Beckwith to railway company.
A deed, in the same form, from George B. Clark and wife to the Little River Valley & Arkansas Railway Company, dated August 17, 1881, and recorded September 12, 1889, in book 13, page 546, and re-recorded July 1, 1890, in book 15, page 187, conveying by the same description, the land set out in the deed from Beckwith to the railway company.
It was admitted on the trial, that on the twenty-ninth day of November, 1881, the Little River Valley & Arkansas Railroad Company, in Missouri, was consolidated with the Texas & St. Louis Railroad Company, and conveyed to it all its property, and the two together became the Texas & St. Louis Railroad Company, in Missouri and Arkansas. It was also admitted that on January 12, 1894, Wm. R. Woodward was appointed as receiver of the property of the Texas & St. Louis Railroad Company, in Missouri and Arkansas, in a suit wherein the Central Trust Company, of New York, was plaintiff, and the Texas & St. Louis Railroad Company, defendant, which suit was pending in the United States circuit court for the eastern district of Missouri. That on the thirteenth of April, 1885, Samuel W. Fordyce was appointed receiver of the property of the Texas & St. Louis Railroad Company, in Missouri and Arkansas, and another, in a suit pending in the circuit court of the United States for the eastern district of Missouri, wherein the Central Trust Company, of New York, was complainant, and said Texas & St. Louis Railroad Company, in Missouri and Arkansas, was defendant -- in place of receiver Woodward, resigned.
It was further admitted by the defendant that by decree of the United States circuit court for the eastern district of Missouri, dated December 16, 1885, in a suit wherein the Central Trust Company of New York was plaintiff, and the Texas & St. Louis Railroad Company, in Missouri and Arkansas, was defendant, the property of every kind of said railroad company was ordered to be sold by George H. Shields, special master, in accordance with the course and practice of that court, and that at such sale the complainant, or any parties, or intervenors, might become purchasers.
Plaintiffs read in evidence a deed from George H. Shields, special master, to William Mortense, George Capell, Louis S. Wolf, M Gersheimer and J. W. Paramore, styled, "The Bondholders' Committee," dated April 29, 1886, and recorded in book 12, of the land record of Dunklin county, at page 1; conveying the following property: "All the right, title,...
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