Givens v. Burton

• Decision Date: 29 February 1916
• Docket Number: No. 17731.,17731.
• Citation: 183 S.W. 617
• Parties: GIVENS v. BURTON.
• Court: Missouri Supreme Court

183 S.W. 617

GIVENS v. BURTON.

No. 17731.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by N. S. Givens against Jesse W. Burton. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

On December 11, 1909, plaintiff filed in the circuit court aforesaid his petition against defendant to quiet title to the undivided one-fourth interest in and to the northeast quarter of the southeast quarter of section 36, in township 59, of range 26; also, three acres out of the southeast corner of the southwest quarter of the northeast quarter of said section, township, and range, described as follows: Commencing at the southeast corner of the southwest quarter of the northeast quarter of said section 36, and running thence north 30 rods; thence west 16 rods; thence south 30 rods; thence 16 rods to the place of beginning. Defendant answered and denied that plaintiff had any interest in the land aforesaid. He admitted that he was in possession, and alleged that he was the owner in fee of said land. The answer alleges that on September 29, 1890, defendant bought from John W. Burton, who was the owner of the undivided one-fourth interest in the land, all his right, title, and interest therein, and paid him the purchase price therefor in full; that, through mistake of the scrivener in writing the deed from John W. Burton and wife to himself, a part of the land which he bought was left out of his deed; that he filed his deed aforesaid for record in said county, on October 1, 1890, and never discovered the mistake aforesaid, until the land was levied upon under an execution as the property of said John W. Burton; that on March 22, 1909, said John W. Burton made him a deed of correction, and recited therein substantially the facts aforesaid, in regard to said purchase; that at the date of the discovery of said error the plaintiff was the owner of a judgment, rendered in a suit of I. H. Crain against John W. Burton; that an execution was issued upon said judgment and levied upon the interest of said John W. Burton in said land; that at the time of the sale of said land under said execution, plaintiff had both actual and constructive notice that defendant claimed to be the owner of said land and that he had bought the same from John W. Burton and had paid him therefor, etc. Plaintiff, in his reply, set up the statute of limitations, section 4272, and claimed that any right of action which defendant may have claimed in respect to said land was barred by the statute, etc. The reply admitted that John W. Burton was formerly the owner of the undivided one-fourth interest in the land aforesaid. The remainder of said reply was a general denial. The case was heard by the court without a jury, on May 6, 1910.

Plaintiff's Evidence. Plaintiff offered in evidence a transcript of the judgment rendered by Wm. G. Lile, a justice of the peace of Union township, in Daviess county, Mo on July 10, 1908, in the case pending before him, in which I. H. Crain was plaintiff and John Burton was defendant, wherein judgment was rendered for said plaintiff in the sum of $117.90 and costs. Said transcript was filed in the office of the clerk of the Daviess circuit court on July 10, 1908. This transcript was objected to by defendant, for the reason that the summons was issued by a justice of the peace in Union township, and was served by the constable of Union township, on the defendant therein in Monroe township. Plaintiff offered in evidence a transcript of the execution issued by the circuit clerk on said transcript of judgment, dated February 25, 1909, also the sheriff's levy, report of sale, etc. The above objection was renewed, and the additional objection made to said evidence, that the execution did not show that any execution was ever issued by the justice of the peace aforesaid, and that a nulla bona return was made thereon. This objection and the preceding one were overruled and an exception saved. Plaintiff also offered in evidence a sheriff's deed in regular form, which was objected to on the ground that the plaintiff herein, who was the grantee in said deed, had full notice of defendant's rights when he bought, and no title passed, etc. Said sheriff's deed does not show that any execution was ever issued by the justice aforesaid. It was admitted in open court that Union and Monroe are adjoining townships.

Defendant's Evidence. Jesse W. Burton, the defendant herein, was sworn as a witness, and testified that he was the son of Lorenzo A. Burton; that his father died in 1886, leaving Sarah A. Grimes, Molly Harris, John W. Burton, and himself as his heirs; that Elizabeth Burton was his widow, and died in May, 1909; that his father was the owner of the land in controversy; that there was an administration on his estate, and he lived on the land up to the time of his death; that his mother continued to live there until she died in 1909, but no dower was set off to her; that his father left no will. Defendant testified that his brother, John W. Burton, was married and lived on the Molly Eads place at the time of trial; that he swapped his brother, John W. Burton, a dun mare and paid him the difference for the land in controversy; that he paid John $40 or $50 and assumed the payment of the note which John owed to a third party; that witness was 18 or 19 years old when this occurred; that his brother John owned a one-fourth interest in the land in controversy, subject to his mother's life estate. He testified that he never discovered the mistake in the description of the land which he bought from his brother John until the plaintiff's judgment was rendered and there was a notice to settle. He then had his brother, John W. Burton, execute to him a deed of correction which is hereafter referred to. Defendant then offered in evidence a quitclaim deed, dated September 29, 1890, from John W. Burton and wife to Jesse W. Burton, conveying the east half of the northwest quarter of the southeast quarter of section 36, township 59, range 26, in Daviess county, Mo., acknowledged before Cleveland McCrary, justice of the peace, on February 29, 1890, and recorded in Book 58, at page 157, on the deed records of said county. Said deed was filed for record October 1, 1890. The expressed consideration in same was $200.

Defendant offered in evidence a general warranty deed of correction, dated March 22, 1909, executed by John W. Burton and wife to Jesse W. Burton, duly acknowledged before J. A. Selby, notary public of Daviess county, aforesaid, on March 22, 1909, and recorded in Book 101, at page 636, on the records of said county, conveying to defendant the north half of the southeast quarter, except 20 acres off of the west end thereof, of section 36, township 59, range 26; also, three acres out of the southeast corner of the southwest quarter of the northeast quarter of said section, township, and range described as follows: Beginning at the southeast corner of the southwest quarter of the northeast quarter, and running thence north 30 rods; thence west 16 rods; thence south 30 rods; thence east 16 rods to the place of beginning. Said deed contains the following recitation:

"This deed is made for the purpose of correcting an error in the description of a former deed between the same parties dated September 29, 1890, and recorded in Book 58 at page 157, on the date of that deed the grantee herein bought from the grantors all of their interest in the land above described and paid the full purchase price therefor and it was intended by said deed to convey their interest in all of the above described land but, through an error of the justice of the peace who drew said deed, part of the land was omitted and this deed is made for the purpose of correcting that error and conveying their interest in all of said land as was intended."

This deed was objected to by plaintiff, for the reason that it is dated after the issuance of the execution and levy thereunder, under which the sale was afterwards made, and through which plaintiff claims title; that said deed is not binding upon plaintiff in any manner. The above objection was overruled, and the deed read in evidence.

J. A. Selby was sworn as a witness on behalf of defendant, and testified that after the recording of defendant's warranty deed last mentioned, and before the sale of the land in controversy to plaintiff, at the April term, 1909, he had a conversation with the plaintiff, in which the following occurred:

"Mr. Givens and I met in the recorder's office, and Nat walked up to me. I think it was in the office where the recorder stays — not in the vault, but in the other room. Nat walked up to me and said, `You fellows think you played hell, don't you?' or something like that. I said, `What do you mean?' He said, `Filing that deed from John W. to Jesse.' That's about the substance of it."

Witness testified that the sale of the land occurred about the first week in April, 1909.

The foregoing was all the testimony introduced at the trial. The defendant, at the conclusion of said evidence, offered a demurrer thereto, which was refused and an exception duly saved. The plaintiff offered no declaration of law. Defendant offered instructions numbered 2, 3, 5, 9, 10, and 13, which were given, and likewise asked instructions numbered 1, 4, 6, 7, 11, 12, 14, and 15, which were refused by the court.

On May 16, 1910, the case was submitted to the court and by the latter taken under advisement. Afterwards, on March 11, 1911, the defendant filed a motion and application to reopen the case on account of newly discovered evidence; that he had since the trial learned that one Elisha Rader would testify, if summoned as a witness, that shortly after the execution of the deed of 1890 aforesaid said John W. Burton stated to said Rader that he had sold defendant all his interest in the lands belonging to...