Graves v. Chapman
| Decision Date | 28 February 1913 |
| Parties | E. W. GRAVES v. STEPHEN M. CHAPMAN et al.; NATIONAL IRON MINING COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.
Affirmed.
Ernest A. Green for appellant.
(1) The court erred in finding and adjudging plaintiff to be the owner of the land in controversy. No competent testimony of any kind whatever was offered by plaintiff to show that the grantor named in the deed dated August 4, 1903, Addison F Burns, under which plaintiff claims, was the same person as either Adam F. Burns, the grantee named in the deed dated May 9, 1873, or Adam T. Burns, the grantee named in the deed dated January 1, 1873. Borders v. Barber, 81 Mo 636; Leslie v. Coal Co., 110 Mo. 31; Bank v Thayer, 184 Mo. 61; Bates v. Bates, 94 Mo.App. 70; Dry Goods Co. v. Mansur, 87 Mo.App. 117; Hendricks v. Calloway, 211 Mo. 558. (2) This being an equity case, the Supreme Court will examine into the evidence offered, and consider its competency and admissibility, regardless of objections or exceptions. Since no competent testimony was offered to prove the identity of plaintiff's grantor, Addison F. Burns, with grantees Adam T. Burns and Adam F. Burns, this court will reverse the judgment notwithstanding the record shows no objection was offered to the incompetent testimony. Gibbs v. Haughowout, 207 Mo. 391; Hanson v. Neal, 215 Mo. 271; Lacks v. Bank, 204 Mo. 479; McKee v. Downing, 224 Mo. 136; Russell v. Sharp, 192 Mo. 291; Lindhorst v. Orphan Asylum, 231 Mo. 389; Harlan v. Moore, 132 Mo. 483; Bush v. Arnold, 50 Mo.App. 8; Davis v. Kline, 96 Mo. 408; Blount v. Spratt, 113 Mo. 48; Warren v. Ritchie, 128 Mo. 311. (3) The court erred in not finding and adjudging that the plaintiff had no right, estate or title in or to any of the premises in controversy herein. The testimony in the case abundantly shows that the deeds constituting plaintiff's chain of title, from the patentee, Samuel Petersberger, were forgeries. Einstein v. Land & Lumber Co., 132 Mo.App. 88; Skinker v. Haagsma, 99 Mo. 208; Lucas v. Land & Cattle Co., 186 Mo. 448; Hunt v. Searcy, 167 Mo. 158; Geer v. Lumber & Mining Co., 134 Mo. 95; Bunch v. Wheeler, 210 Mo. 627; Lacks v. Bank, 204 Mo. 479; Bank v. Nichols, 202 Mo. 320. (4) The court erred in finding against the appellant upon its cross-bill; appellant being in possession of the lands in controversy, its right of possession would entitle it to a decree against plaintiff who has neither title nor possession. Duncan v. Able, 99 Mo. 188; Wheeler v. Land Co., 193 Mo. 291; Longacre v. Longacre, 132 Mo.App. 197; Keith v. Bingham, 100 Mo. 300. (5) The court erred in finding for the plaintiff against the defaulting defendants upon the plaintiff's testimony, because the testimony of plaintiff discloses that plaintiff has neither title to nor possession of the premises in controversy. 5 Cyc. 991, 994; Wheeler v. Land Co., 193 Mo. 291; Gardner v. Robertson, 208 Mo. 605; Richards v. Mining Co., 221 Mo. 149. (6) The dismissal of plaintiff's petition as to this appellant and its co-defendant Isaac Luke, operated as a dismissal of their cross-bill also, and thereupon the court was powerless to render any judgment whatever in favor of the plaintiff, even if the parties did proceed to trial upon the cross-bill. Gray v. Ward, 234 Mo. 296; Hamlin v. Walker, 228 Mo. 611; Lanyon v. Chesney, 209 Mo. 9; Jones v. Moore, 42 Mo. 413; Maginn v. Schmick, 127 Mo.App. 411.
David W. Hill for respondent.
(1) Before the close of plaintiff's case the plaintiff dismissed his petition as to the appellant, thereby exercising a right to which he was clearly entitled and it was error in favor of the appellant for the court to try the case on the alleged cross-bill of the appellant. Sec. 650, R.S. 1899; Gray v. Ward, 234 Mo. 291; Hamlin v. Walker, 228 Mo. 611. (2) The court in trying the case on the cross-bill of the appellant, after the plaintiff had voluntarily dismissed the petition as to the appellant, committed error in favor of the appellant, but for such error the appellant cannot complain. In procuring a trial on the cross-bill the appellant obtained more rights than it was entitled to. R.S. 1909, sec. 2082.
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 Adam T. Burns, alias Adam F. Burns, under section 650, Revised Statutes 1899, now section 2535, Revised Statutes 1909, to ascertain and determine the right, title and interest of the parties to the north half of the northwest quarter of section eleven, and the northwest quarter of the northwest quarter of section twelve, all in township twenty-six, range five, Butler county, Missouri.
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:
1st. The default judgment before mentioned.
2d. 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 eleven; and the northwest quarter of the northwest quarter of section twelve, in township twenty-six north, range five east, in Butler county, Missouri.
3d. Patent from the United States of America to Samuel Petersberger, dated February, 10, 1896, and filed August 18, 1903, and recorded in Book 68, page 324, of the deed records of Butler county, Missouri, conveying all the land in suit.
4th. Warranty deed from Samuel Petersberger to John Milroy, dated November 10, 1862, recorded January 7, 1873, in Book I, page 558, of the deed records of Butler county, Missouri, conveying the northwest quarter of the northwest quarter of section twelve, in suit.
5th. Warranty deed from Samuel Petersberger and wife to Adams T. Burns, dated January 1, 1873, recorded August 30, 1873, in Book J, page 21, of the deed records of Butler county, Missouri, conveying the north half of the northwest quarter of section eleven, in suit.
6th. Warranty deed from John Milroy and wife to Samuel Petersberger, dated October 29, 1872, recorded May 18, 1874, in Book J, page 257, of the deed records of Butler county, Missouri, conveying the northwest quarter of the northwest quarter of section twelve, in suit.
7th. Warranty deed from Samuel Petersberger and wife to John J. Winton, dated February 6, 1873, recorded March 10, 1873, in Book I, page 425, of the deed records of Butler county, Missouri, conveying the northwest quarter of the northwest quarter of section twelve.
8th. Warranty deed from John J. Winton to Abner E. Leonard, dated October 12, 1872, recorded March 26, 1873, in Book I, page 462, of the deed records of Butler county, Missouri, conveying the northwest quarter of the northwest quarter of section twelve, in suit.
9th. Warranty deed from Abner E. Leonard to Adam F. Burns dated May 9, 1873, recorded May 20, 1873, in Book I, page 524, of the deed records of Butler county, Missouri, conveying the land in suit.
10th. Quitclaim deed from Addison F. Burns and wife to E. W. Graves, dated August 4, 1903, recorded August 11, 1903, in Book 63, page 220, of the deed records of Butler county, Missouri, conveying all the land in suit.
11th. 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."
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