Garrison v. Taff

• Decision Date: 16 July 1917
• Docket Number: No. 18558.,18558.
• Citation: 197 S.W. 271
• Parties: GARRISON v. TAFF.
• Court: Missouri Supreme Court

197 S.W. 271

GARRISON v. TAFF.

No. 18558.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by E. B. Garrison against John W. Taff. From judgment for defendant, plaintiff appeals. Reversed and remanded.

The petition is in two counts. The first seeks to quiet the title to a certain tract of land in Texas county, Mo., and the second count is one in ejectment involving the same land. The answer admits that defendant is in possession of and claims title to the land, pleads both the 10 and 31 year statutes of limitations, and also contains a plea of laches. Trial was had before the circuit court of Texas county, without a jury, resulting in a judgment in favor of the defendant. Thereupon plaintiff duly appealed.

The substantial evidence may be summarized as follows:

It is admitted that Buckner Garrison is the common source of title. He died, about 1882, the owner of a section of land including the land here involved. Said Buckner Garrison left surviving him a widow and 11 children. One of the surviving children is the plaintiff in this action. Some time after the death of Buckner Garrison, partition of his land was had among the heirs, and the tract here involved was set off as plaintiff's share in said estate. The partition decree by which the land was so divided is set forth in the abstract, but the date of the same is not shown. About the year 1881 or 1882, plaintiff, together with his wife, Nan Garrison, and five or six children, moved from Texas county to the state of Arkansas. A few months later plaintiff sent his wife and children back to Texas county, Mo.; the plaintiff going to Arizona, and later to New Mexico. Plaintiff did not return to Missouri until about 33 years later, which was a year before this suit was instituted. This suit was instituted January 25, 1913.

After plaintiff's share in his father's land was set aside in the partition proceeding, plaintiff's wife and children moved onto the same. The neighbors constructed a house on the land for the wife and children, who occupied the place until 4 or 5 years before this suit was instituted. About 4 or 5 years before this suit was brought, plaintiff's wife and all of his children, except two, conveyed, for a small consideration, by quitclaim deeds, their interest in this land to one Charles Kirkham, who, in turn, conveyed to the defendant Taff. After plaintiff went West, he was not heard from for 5 or 6 years. At that time plaintiff's brother wrote him a letter, informing him of his father's death, and that the land had been divided, and his portion set off for him, and that the neighbors had built his wife a house on the land, and that plaintiff's wife and children were living on the land. Plaintiff's brother also wrote plaintiff that his share of the cost of administering upon his father's estate was $25.40. Plaintiff later sent this sum of money to pay his portion of the cost of administration.

Plaintiff also testified that he sent money, at different times, to his wife, and that some of it came back undelivered; that he once received a letter from his wife, and received other letters from his brothers and one of his sons; that in 1892 his son Curliss Garrison wrote him a letter, inclosing a quitclaim deed to the land in question, requesting him to sign and return the deed. Plaintiff testified that he thought his wife and children were living on the land and making their living off of the land, and that he did not know that the defendant, or any one else, was claiming the land until about a year before he came back to Missouri, at which time he received a letter from one of his brothers informing him of the situation.

The evidence is not very definite as to dates, but, as we read the testimony, there was a period of 5 or 6 years immediately prior to the time that plaintiff's wife and children made quitclaim deeds to the land, during which time none of plaintiff's family had received any information from the plaintiff, and they did not know whether he was dead or alive. After defendant Taff went into possession of the land, and in 1909, he brought a suit to partition this land, joining as defendants Moses Garrison and Caleb Garrison, the two of plaintiff's children who had not theretofore signed quitclaim deeds to their interest in the land. In his petition in the partition suit Taff alleged:

"That one Ed Garrison [plaintiff herein] died seised of the fee-simple title to said land about the year 189_, leaving as his sole and only heirs at law his widow, Nan Garrison, and the following children, to wit: [Then follows the names of the children.] Plaintiff states that he has purchased the interest of all of the heirs, above named, except Caleb Garrison and Moses Garrison, and is now the fee-simple owner thereof, and that the said Caleb Garrison and Moses Garrison are still the owners of their undivided interest as heirs at law of Ed Garrison, deceased, in said real estate." (Italics ours.)

The court entered a decree in the partition suit, finding that Edward Garrison (plaintiff herein) died seised of the fee-simple title to the land involved, and that said Taff had become the owner of all of the interest in said land, except the interest of the two children named as defendants in said partition suit. It was found that the land could not be partitioned in kind, and it was ordered sold. Sale was had, and Mr. Taff became the purchaser for the sum of $600. Plaintiff knew nothing about this partition proceeding until about a year before he returned to Missouri.

One of plaintiff's brothers testified in this case that about the time Mr. Taff brought the partition suit the witness had a talk with Mr. Taff, in which he informed Taff that it had been 5 or 6 years since he had heard from his brother Ed. Mr. Taff told him that one of plaintiff's sons claimed that plaintiff was going to be at Houston, but that he did not believe it. Taff told the witness that he thought plaintiff was dead. The witness told Taff that he did not know, but that, if his brother was alive and Taff should buy the land, he would get nothing. Later, after the partition sale was had, the witness saw Taff, and Taff slapped him on the shoulder and said: "See how slick I got that land; I told you I would get it." The witness replied: "Mr. Taff, I don't know that you have got it yet." This witness later located his brother in Roswell, N. M., and wrote him about the partition suit and about the situation as to the land.

Frank Cunningham testified, for the plaintiff, that plaintiff's wife and children about 15 years ago tried to sell him the land, and that he inquired of plaintiff's brother about the situation, and was told that plaintiff might be alive, and might come back and take the land. The witness then refused to buy the land, and he informed Mr. Taff of the above facts. One of defendant's witnesses testified that the land always went by the name of the plaintiff's wife, and was known as the "Nan Strip." The witness did not know whether plaintiff's wife claimed to own the land or not. Another witness for the defendant testified that it was known as the "Nan Strip," and that the children "claimed possession" up until the time that Mr. Taff got it, and that "Nan and the boys claimed that the land was theirs." On further examination of this witness, he testified that he never heard the children say anything about the land "in the event their father was dead"; that one of the boys claimed that he had a deed to it about 4 years before this trial. The witness further said that he supposed that the widow claimed an interest in it "as the widow of Ed Garrison," and that he supposed the children "only claimed the land in the event their father was dead." The testimony does not show when these different claims...