Gage v. Cantwell

• Citation: 191 Mo. 698,91 S.W. 119
• Parties: GAGE et al. v. CANTWELL et al.
• Decision Date: 12 December 1905
• Court: United States State Supreme Court of Missouri

91 S.W. 119

191 Mo. 698

GAGE et al. v. CANTWELL et al.

Supreme Court of Missouri, Division No. 2.

December 12, 1905.

1. QUIETING TITLE — SUFFICIENCY OF EVIDENCE —PERSONAL IDENTIFICATION.

In a suit to quiet title, testimony that plaintiff's husband, "E. L. G.," was the owner of and claimed the land in suit, that he re sided at one time in Alpine, Tex., that he was dead, and that plaintiff had heard that the land had been sold for taxes, was, in the absence of testimony to the contrary, sufficient to support a finding that plaintiff's husband was a grantee in a deed running to "E. L. G., of Alpine, Tex."

2. SAME—TITLE OF PLAINTIFF—SUFFICIENCY OF SHOWING.

In a suit under Rev. St. 1899, § 650, authorizing any person claiming any interest in land to sue any other person claiming any interest in the same to ascertain and determine the estate of the parties, respectively, in such land, it is not necessary that plaintiff, in a suit to quiet title, establish a chain of title from the government, where the only claim asserted by defendant to the land is through tax proceedings against plaintiff's deceased husband; but in such case it is sufficient for plaintiff to introduce the deed to her husband, showing a record title in him, and to prove that at the time of the tax proceedings plaintiff's husband was dead, so that the tax proceedings were void, that he died intestate, and that plaintiff is the next of kin surviving him.

Appeal from Circuit Court, Washington County; Frank R. Dearing, Judge.

Action by Anna D. Gage and others against H. J. Cantwell and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Anthony & Eversole and Edwin De Arcy, for appellants. Warren D. Isenberg, for respondents.

FOX, J.

This cause is in this court upon an appeal by defendants from a judgment rendered against them by the Washington county circuit court. This action was brought, under section 650, Rev. St. 1899, to try, ascertain, and define the title of the parties plaintiff and defendant in and to the land described in the petition. As the sufficiency of the petition is not challenged, we see no necessity for reproducing it here. After the institution of the suit by respondent Henry C. Bell was made a party, and he entered his appearance, and, together with his codefendant Cantwell, they filed a joint answer alleging Cantwell to be the owner of the land, followed with a general denial of the allegations of the petition. Plaintiff offered in evidence the deposition of Anna D. Gage, one of the plaintiffs, who testified that she was the widow of E. L. Gage, and resided in Cincinnati, Ohio, and lived in Cincinnati about nine years, but resided in Texas before that time; that she was the wife of E. L. Gage, and for over 20 years they lived together at Alpine, Tex.; that E. L. Gage, her husband, was dead; that he died in Chicago in 1892; that there was only one child born to their marriage, a daughter, who is unmarried and living with Anna D. Gage; that her name is Harriet A. Gage, and she is over 18 years old; that her husband's title papers are lost, and that she had searched among hers and his papers, which were in her possession, but could not find them; that he had his papers scattered from Alpine, Tex., to Chicago, and that she did not know what became of his title papers. She further testified that E. L. Gage owned the land in suit. She further stated that she knew it, and knew it all along, that he owned the land, and learned a few months ago that it was sold for taxes. She also said that E. L. Gage died intestate. Plaintiffs then introduced a deed from S. D. Cobberly and Catherine E. Cobberly, his wife, by S. D. Cobberly, her attorney in fact, conveying the land in controversy to E. L. Gage, of Alpine, Tex. Then followed the introduction of the record of the tax suit of State ex rel. Collector of Washington County, Mo., against E. L. Gage, begun May 17, 1894, and the order of publication, and the judgment of the circuit court, and the deed made in pursuance of the sale under such judgment, conveying the land to Henry C. Bell, trustee, and a deed from Henry C. Bell to H. J. Cantwell, the defendant, all of which were recorded. Henry C. Bell was introduced as a witness, substantially testifying that he acquired his title to this land by purchase at the sheriff's sale under the tax proceeding, as trustee for himself and others. This was all the testimony on the part of the plaintiffs, and defendant introduced none.

There were no instructions requested, given, or refused, except the one at the close of the plaintiff's case in the nature of a demurrer to the evidence, which was by the court overruled. The cause was submitted to the court and a finding was had for the plaintiffs, and the following judgment was entered of record: "Now, at this day, this cause coming on for trial upon the pleading and proof, come the plaintiff by attorney and the defendant by attorney, and, all matters of law and fact being submitted to the court, the court, having heard the argument of counsel and all the evidence, doth find for the plaintiffs Anna D. Gage and Harriet A. Gage, and against the defendants Harry J. Cantwell and Henry C. Bell. It is therefore ordered, adjudged, and decreed by this court that the fee-simple title and the right to the possession in and to the following described land in Washington county, Mo., is in the said plaintiffs Anna D. Gage and Harriet A. Gage; said lands being described as follows: The east half of the southwest quarter and lots one (1) and two (2) of the northwest quarter of section number five (5), township number thirty five (35), range one east, containing two hundred forty (240) acres of land, more or less—and that the defendants, Harry J. Cantwell and H. C. Bell, have no right, title, or interest in and to said lands or any part thereof, and had not on the 10th day of December, 1901, or at any time since the institution of this suit, and they are hereby debarred from asserting or claiming any right, title, or interest hereafter in and to all or any part of said land. It is further adjudged that plaintiffs recover of and from the defendants all costs, in this behalf expended, for all of which execution may issue." Motions for new trial and in arrest of judgment were filed and by the court overruled, and from the judgment rendered the defendants prosecuted their appeal to this court, and the record is now before us for consideration.

The errors complained of by appellants, as disclosed by the record before us, suggested in the brief of counsel, may thus be briefly stated: (1) That the court erred in finding that E. L. Gage, the grantee in the deed from S. D. Cobberly, was the same E. L. Gage who died in Chicago in 1892, as testified to by Anna D. Gage, his widow; (2) that the testimony as to the title to this land on the part of the plaintiffs was insufficient to authorize and warrant the decree rendered; (3) that under the facts of this case there was no common source of title, and hence it was incumbent upon the plaintiffs to establish their title by proper and legal conveyances from its original source.

We are unable to agree with learned counsel for appellant upon any of the contentions urged in this case. Upon the first proposition we have carefully read in detail the deposition of one of the...