Graves v. Chapman

• Decision Date: 24 December 1912
• Citation: 154 S.W. 61,248 Mo. 83
• Parties: GRAVES v. CHAPMAN et al.
• Court: Missouri Supreme Court

154 S.W. 61

248 Mo. 83

GRAVES v. CHAPMAN et al.

Supreme Court of Missouri, Division No. 1.

December 24, 1912.

Rehearing Denied February 28, 1913.

1. APPEAL AND ERROR (§ 1133) — AFFIRMANCE—FAILURE TO FILE ABSTRACT.

Judgment will be affirmed as to appellants who have not filed abstracts of the record and briefs.

2. QUIETING TITLE (§ 45)—TRIAL—DISMISSAL OF PETITION—EFFECT ON CROSS-BILL.

Under Rev. St. 1909, § 2535, providing that upon trial in an action to quiet title, if requested in the pleadings of either party, the court may determine all claims of any of the parties and award complete relief as fully as it could do in any other or different action brought by any of the parties to enforce such claim, a dismissal of the petition in such action would not operate to dismiss the cross-bill.

3. APPEAL AND ERROR (§ 882)—ESTOPPEL TO ALLEGE ERROR.

A party cannot complain of error at trial which was committed at his own request.

4. DISMISSAL AND NONSUIT (§ 42)—DISMISSAL—DISMISSAL OF PETITION.

Defendants, by requesting the court to proceed with the trial on the cross-bill notwithstanding the dismissal of the petition, thereby submitted themselves to the court's jurisdiction so that the dismissal of the petition would not carry the cross-bill with it.

5. APPEAL AND ERROR (§ 1029)—HARMLESS ERROR—PARTY NOT ENTITLED TO SUCCEED.

Any error in adjudging plaintiff to be the owner of land in controversy was not reversible as to a defendant whose own evidence showed that it had no interest in the land.

6. VENDOR AND PURCHASER (§ 212)—SUBSEQUENT PURCHASER FROM VENDOR—TITLE ACQUIRED.

Where the owner of land had previously conveyed it to another by valid conveyance before his purported conveyance to defendant's grantor, defendant acquired no title from his grantor.

7. APPEAL AND ERROR (§ 1029)—HARMLESS ERROR.

In order to require reversal, appellant must show some interest which is adversely affected by the judgment.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by E. W. Graves against S. M. Chapman and others. From a judgment for plaintiff, the National Iron Mining Company appeals. Affirmed.

See, also, 241 Mo. 650, 145 S. W. 464.

The plaintiff instituted this suit in the circuit court of Butler county against S. M. Chapman, Isaac Luke, the National Iron Mining Company, a corporation, J. P. Thomas, Adams T. Burns, Adam F. Burns, and Addison F. Burns, alias Adams T. Burns, alias Adam F. Burns, under section 650, R. S. 1899, now section 2535, R. S. 1909, to ascertain and determine the right, title, and interest of the parties to the north half of the northwest quarter of section 11, and the northwest quarter of the northwest quarter of section 12, all in township 26, range 5, Butler county, Mo. Service was had upon all the defendants, and all except S. M. Chapman, Isaac Luke, J. P. Thomas, and the National Iron Mining Company made default, and in due time judgment by default was rendered against them. The National Iron Mining Company and Isaac Luke filed their separate answer admitting that the former was a corporation and that they claimed to own the land in controversy "in fee simple absolute." They also filed a cross-bill founded upon the same statutes and prayed the court to ascertain and determine the rights, title, and interest of the parties to the same lands, describing them again. The reply was a general denial. The trial began January 24, 1908, and before the plaintiff closed his case, by leave of court, he dismissed the cause as to Isaac Luke and the National Iron Mining Company. The trial proceeded on the answer and cross-bill of Isaac Luke and the National Iron Mining Company, the answer of S. M. Chapman, and the replication of the plaintiff. After seeing and hearing all the evidence introduced, the court took the case under advisement until May 11, 1908, when the court found the issues for the plaintiff and against the defendants Isaac Luke, the National Iron Mining Company, and S. M. Chapman, and rendered judgment accordingly in favor of the plaintiff and against all of the defendants. After moving unsuccessfully for a new trial, the answering defendants and J. P. Thomas appealed the cause to this court.

The evidence introduced by the plaintiff was substantially as follows: (1) The default judgment before mentioned. (2) A certified copy of the original entry from the General Land Office of the United States, showing that Samuel Petersberger, on the 7th day of September, 1857, entered all the land in controversy, viz., the north half of the northwest quarter of section 11, and the northwest quarter of the northwest quarter of section 12, in township 26 north, range 5 east, in Butler county, Mo. (3) Patent from the United States of America to Samuel Petersberger, dated February 10, 1896, and filed August 18, 1903, and recorded in Book 68, p. 324, of the deed records of Butler county, Mo., conveying all the land in suit. (4) Warranty deed from Samuel Petersberger to John Milroy, dated November 10, 1862, recorded January 7, 1873, in Book I, p. 558, of the deed records of Butler county, Mo., conveying the northwest quarter of the northwest quarter of section 12, in suit. (5) Warranty deed from Samuel Petersberger and wife to Adams T. Burns, dated January 1, 1873, recorded August 30, 1873, in Book J, p. 21, of the deed records of Butler county, Mo., conveying the north half of the northwest quarter of section 11, in suit. (6) Warranty deed from John Milroy and wife to Samuel Petersberger, dated October 29, 1872, recorded May 18, 1874, in Book J, p. 257, of the deed records of Butler county, Mo., conveying the northwest quarter of the northwest quarter of section 12, in suit. (7) Warranty deed from Samuel Petersberger and wife to John J. Winton, dated February 6, 1873, recorded March 10, 1873, in Book I, p. 425, of the deed records of Butler county, Mo., conveying the northwest quarter of the northwest quarter of section 12. (8) Warranty deed from John J. Winton to Abner E. Leonard, dated October 12, 1872, recorded March 26, 1873, in Book I, p. 462, of the deed records of Butler county, Mo., conveying the northwest quarter of the northwest quarter of section 12, in suit. (9) Warranty deed from Abner E. Leonard to Adam F. Burns, dated May 9, 1873, recorded May 20, 1873, in Book I, p. 524, of the deed records of Butler county, Mo., conveying the land in suit. (10) Quitclaim deed from Addison F. Burns and wife to E. W. Graves, dated August 4, 1903, recorded August 11, 1903, in Book 63, p. 220, of the deed records of Butler county, Mo., conveying all the land in suit. (11) Over the objection and exceptions of counsel for defendants, the plaintiff then read in evidence the deposition, direct examination, of Addison F. Burns, defendant, showing that Adams T. Burns and Adam F. Burns, mentioned in the foregoing deeds, are one and the same person, otherwise known as Addison F. Burns.

Counsel for plaintiff in his statement of the case in this court quotes the following from the evidence introduced by the defendants, viz.: "Oral evidence introduced by said defendants, Luke and National Iron Mining Company, developed the fact that Isaac Luke went on the lands in suit as a squatter, and that the other defendants, Chapman, Thomas, and National Iron Mining Company, hold under the said Luke; and said testimony also developed the further fact that none of the defendants have any title by adverse possession, or by virtue of any statute of limitations." In order to properly understand this evidence it is necessary to state that the original bill of exceptions in this case was lost or destroyed, and that the one now on file is a substituted bill, which does not purport to set out the evidence as introduced, but states the agreement of the parties as to what the evidence introduced at the trial showed. The plaintiff then rested.

Thereupon counsel for the defendants Isaac Luke and the National Iron Mining Company introduced the following evidence, in support of their cross-bill, viz.: (a) Quitclaim deed from Samuel Petersberger of the county of ______, state of Missouri, party of the first part, to the defendant Isaac Luke, dated November 2, 1900, recorded March 20, 1903, in Book 68, p. 87, of the deed records of Butler county, Mo., conveying all of the land in suit. This deed was duly acknowledged before I. N. Pearce, a notary public of Butler county, Mo., who certifies that the grantor therein was personally known to him to be the person described in and who executed the foregoing instrument. (b) Defendants further offered a general warranty deed from Isaac Luke and wife to the appellant, National Iron Mining Company, dated October 26, 1906, acknowledged on the 7th day of November, 1906, conveying all of the iron ore and all other minerals and mineral substances under the surface of all the land in controversy. Said defendants Luke and the National Iron Mining Company also introduced in evidence a certified copy of the record of the conviction of Addison F. Burns for forgery. This record showed that Addison F. Burns had been convicted in Clarion county, Pa., and sentenced to imprisonment in the penitentiary for a term of 7 years and 6 months, for forgery of a deed to certain land in Dent county, Mo., and also for uttering and passing the same forged deed. Defendants also offered in evidence the second deposition of Addison F. Burns, taken in the former suit of E. W. Graves, plaintiff, and Isaac Luke, defendant. This deposition had been taken on the 3d day of February, 1905, more than two years before this suit was instituted. In this deposition, Addison F. Burns was examined by Mr. S. M. Chapman as attorney for Isaac Luke.

In said deposition, Addison F. Burns testified that he resided in the city of McDonald, Washington county, Pa.; that his father was William Burns; that he and his father had resided in McDonald, Pa., for about seven years; that during the years 1865 and 1866 his father...