Hall v. Lavat
| Decision Date | 31 December 1923 |
| Citation | 257 S.W. 108,301 Mo. 675 |
| Parties | LIZZFE H. HALL et al. v. M. J. LAVAT, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carter Circuit Court; Hon. E. P. Dorris, Judge.
Affirmed.
J W. Chilton for appellant.
(1) Where one claims land by adverse possession and limitation the question of fact as to his actual possession, and of its continuity for the requisite period of time, as well as actual possession of those under whom he claims, and the character of such possession, are questions of fact to be determined by the triers of fact in the case. If before a jury the jury determines the facts, under instructions of the court. If a jury is waived, the judge becomes the trier of the facts, and in either case the parties, or either of them has a right to a determination or finding of the facts in the case. It is always reversible error for the court to take from the jury its function of deciding the facts of a case by instructions which do not declare the law; so likewise is it error for a trial judge to take from himself the function of passing upon the facts of a case through an erroneous conception of the law. Cousins v. White, 246 Mo 296, 307; Crossett v. Farrell, 209 Mo. 704, 707; Barth v. Railroad, 142 Mo. 548; Farrar v. Heinrich, 86 Mo. 529. (2) One in actual possession of land as the agent or tenant of another cannot convert his occupancy of such land into an adverse tenancy by attornment to a stranger or third person. Sec. 6882, R. S. 1919; Farrar v. Heinrich, 86 Mo. 521, 531; McCartney v. Auer, 50 Mo. 395, 396; Merchants Bank v. Clavin, 60 Mo. 562. (3) After title has been vested in a claimant by limitation the mere recognition by the owner by limitation of the former owner's title, or the waiving of the Statute of Limitations, will not re-vest title in the former owner. Allen v. Mansfield, 82 Mo. 688, 694.
J. L. Huett and O. L. Munger for respondents.
Suit to quiet title to the southeast quarter of Section 14, Township 25, Range 3 East, in Carter County. The only question in the case on this appeal is whether there was any evidence tending to prove that defendant, M. J. Lavat, had title thereto by virtue of the ten-year Statute of Limitations. It was admitted at the trial that the plaintiffs had the record legal title under patent from the United States.
The evidence of the claim and possession of defendant was as follows: On March 26, 1907, he agreed to make a loan on said property to the Homestead Orchard Company, provided it perfected its title thereto to the satisfaction of his attorney. At the time the agreement was made on March 26, 1907, the Homestead Orchard Company had no deed or title to the property. But defendant offered deeds relating to said property, as follows: Quit-claim deed from Cornelia E. Bull and others to R. J. Winsor, dated October 14, 1907, recorded February 1, 1908; warranty deed from Rebecca J. Winsor and husband, William S., to Homestead Orchard Company, dated October 19, 1907, recorded February 1, 1908; deed of trust from said Homestead Company to Boaz, trustee for M. J. Lavat, appellant, dated February 15, 1908, recorded March 7, 1908, to secure note of said company to said Lavat for $ 4,000; second deed of trust by said company to Calfee, trustee, for said Lavat, dated March 2, 1909, recorded March 12, 1909, to secure another note to him made by said company for $ 2000; sheriff's deed in foreclosure of said last-mentioned deed of trust, conveying the interest of William S. Winsor and George Layman, trustees of said Orchard Company, and the interest of said Orchard Company to said Lavat, dated October 29, 1919, recorded November 8, 1919; a deed from said Orchard Company to Western Tie & Timber Company, dated October 13, 1910, recorded October 20, 1910, purporting to convey the timber on said land.
Appellant Lavat testified: He made the loan secured by said deeds of trust in good faith, believing that the title was vested in said Homestead Orchard Company. Including the land in controversy, said deeds of trust conveyed about 880 acres of land. He bought it in under foreclosure of his second deed of trust after William S. Winsor, who was president of said Orchard Company during its legal existence, and trustee for it under the statute afterwards, had left the country. On October 28, 1919, he took possession and has remained in possession ever since, living upon and cultivating the land. Cross-examination: He had no possession before said October 28, 1919, when he bought the property in under foreclosure of his second deed of trust. Before that, William S. Winsor had been in possession -- he was an officer of said Orchard Company -- president. Witness claimed title under said Winsor as a representative of said Orchard Company. The company was composed of three stockholders, George Guthrie and Rebecca Winsor, wife of said W. S. Winsor, and said W. S. Winsor. He thought W. S. Winsor looked after and transacted all the business for said Orchard Company.
R. J. Shoat testified for defendant: He rented the whole 880 acres, including the quarter section in controversy, from appellant Lavat about the time Lavat got his sheriff's deed in October, 1919. He occupied and cultivated the land or had it cultivated. From about 1901 to about 1907 his father cultivated about fifteen acres of the land in suit. After October 14, 1907, his father did not cultivate the land any more, but Winsor cultivated it at one time, and when Winsor did not cultivate it, he had it done. Winsor also fenced it. Witness worked for Winsor in the year 1909 and cultivated the land for him. Could not say whether Winsor cultivated it every year from the time Winsor bought it up to the time Lavat bought it, but it was in Winsor's possession. Winsor lived there on the adjoining property. Winsor left along in 1918. After Winsor left, William Davis occupied it. Davis was there just a few months from early part of the spring, and left in the fall; he made a crop. After Davis left, witness took possession; that was about three years ago. The Homestead Company was known at that time, Winsor represented that company. Witness was employed for the company through him. The fences have been kept up around the place since Winsor took possession in the fall of 1907. " Witness had been in possession for the last three years. For the last two years he claimed under appellant, Lavat. Prior to that time, he claimed under Jim McGhee. McGhee did not claim to own the land. Three parties had been in possession of the land, Winsor, William Davis and the witness. Witness first came into possession about the first of November, 1918. He got a permit to move on from Jim McGhee. He went there under McGhee, but McGhee told him he had no title and no right to give possession. He said he had no authority over the place.
Plaintiffs' testimony in rebuttal:
Garry H. Yount testified: He was an attorney at law. Knew W. S. Winsor and five or six years ago represented plaintiffs, Lizzie H. Hall and Addison Husted. At that time had a conversation with William S. Winsor with reference to Winsor taking a lease for the property from the plaintiffs. Witness wrote the lease, it was executed and dated the first day of September, 1917. He signed the lease as agent for Mrs. Hall and Mr. Husted and mailed it to Winsor. Discussed the matter with Winsor before he wrote the lease and after Winsor had signed it and returned it to him. Winsor was then in charge of the Homestead Company. He told witness that a year or two prior to the date of the lease he intended to buy a quarter-section owned by other parties of the same name and a different branch of the family of Husted, and he thought he was getting title to the other tract. Witness wrote and got the lease signed for Mrs. Hall and Mr. Husted, the plaintiffs.
The lease to Winsor and signed by him and plaintiffs, through witness as their agent, was as follows:
Cross-examination: The Homestead Orchard Company was an incorporated company under the laws of Missouri. It lost its charter about 1913 or 1915 through failure to...
To continue reading
Request your trial