Hartwell v. Parks

• Decision Date: 29 February 1912
• Parties: HARTWELL et al. v. PARKS.
• Court: Missouri Supreme Court

144 S.W. 793

240 Mo. 537

HARTWELL et al. v. PARKS.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

1. EVIDENCE (§ 53) — ANCIENT TRANSACTIONS.

From necessity strict rules of evidence must be relaxed in support of ancient and dim transactions.

2. EVIDENCE (§ 69)—PRESUMPTIONS.

All acts are presumed to have been lawfully and duly performed until the contrary is proved.

3. EVIDENCE (§ 69)—PRESUMPTIONS.

When things have been done which could not be legally done unless preceded by the doing of other things, the law will presume that such antecedent things were also done.

4. WILLS (§ 418)—PROBATE—PRESUMPTIONS.

Where a will appears of record, but its probate cannot be proved owing to the destruction of the records by fire, its probate will be presumed, since it could not be legally recorded until it had been probated.

5. RECORDS (§ 19)—DEFECTS—EFFECT.

In a set of abstract books, which by statute had been made evidence of title to land after the destruction of the official records by fire, there appeared opposite various tracts of land owned by a testator an abstract of a will from him to his wife "conveying all lands in P. county." This abstract did not appear opposite the record of a tract in P. county, the title to which was in dispute, but which the testator owned at the time of his death. Held, that those claiming under the wife had title to the tract; it not appearing that any one had been misled by the omission of the abstract opposite the record of that tract, and the abstract opposite other tracts showing that this tract was covered by the will.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Action by H. R. Hartwell and others against Maria Parks. From a judgment for defendant, plaintiffs appeal. Affirmed.

McKay & Corbett, for appellants. Faris & Oliver, for respondent.

LAMM, J.

Suit brought in Pemiscot circuit court in 1907 under old section 650 (now 2535, R. S. 1909) to determine title to the N. E. ¼ section 36, township 20, range 12, Pemiscot county. From a decree for defendant, plaintiffs come up.

The common source of title, Alexander Barnes, died in 1869, a resident of Pemiscot, leaving Agnes, his widow, and no children, and seised in fee of many parcels of land situate here and there in that county— among them, that in dispute. Some of plaintiffs are the half-brothers and half-sisters of Alexander. Others are the descendants of those dead. Defendant holds, if at all, under the will of John C. Parks, deceased, duly probated. Agnes, relict of Alexander, intermarried with one Cropper. John C. Parks held under a conveyance executed in 1902 by Agnes (now dead) and her said second spouse, and duly spread of record. Agnes, in turn, held an estate (that has fallen in) as common-law dowress, or as owner in fee under the will of her first spouse.

The issue here is sharp and single. If Alexander died testate and his will devised the land to his widow, as asserted by defendant, then defendant's title is good by devises and mesne conveyances. Contra, if he died intestate as to this land, or if his will did not operate to devise it to her, then, subject to her dower, the title by descent cast vested, eo instante, on Alexander's death in his half-brothers and half-sisters and (Agnes' dower having lapsed) now rests in them and the descendants of those dead, to wit, plaintiffs. In that view of it, they hold a good title unless the 30-year statute of limitation bars action and vests title in defendant, or unless there is laches in the way.

The petition alleges, and the answer denies, that the land is wild and uncultivated timber land, not in the possession of any one. The proofs show that it is fenced, partly cleared and cultivated, and has been in defendant's possession since the death of her husband in 1905. Prior to that it had been in possession of her husband since the date of his deed in 1902. The petition alleges plaintiffs have a fee-simple title and that defendant makes a claim (adverse and prejudicial to them) of some right, title, estate, or interest, the nature and character of which is unknown to plaintiffs. By answer defendant admits such adverse claim, alleges she is the owner in fee, denies plaintiffs' ownership, and avers that for "many years" by and through her tenants and grantors she is and has been in actual possession. The proof tends to show that Agnes at the time of her husband's death, and until she conveyed, claimed to own the land; that most of plaintiffs lived for a generation or so near the land; that plaintiffs knew of her claim of ownership and assertion of title under her husband's will from the outset and never asserted any title or claim until a few months before the 3d day of October, 1907, when they had an abstract of title made (which, they claim, disclosed their ownership), and thereupon on said date brought this suit; that the title emanated from the general government in 1850; that the land was swamp land; that it was patented by Pemiscot county to Alexander Barnes in 1858; that during his lifetime he paid the taxes thereon; that since his death his widow, and after her those claiming under her, paid the taxes to this time; that plaintiffs paid no taxes and were never in possession; and that at a certain unnamed time those records of Pemiscot county that did not go up in smoke and flame were reduced to ashes.

It is agreed that a certain set of abstract books, known as "Carleton's Abstracts," became by legislative enactment and orders of the circuit and county court evidence of land titles in that county. The proof also shows, as said, that Alexander Barnes owned a great many scattered tracts of land in Pemiscot, that Carleton's Abstracts show the following entry anent the will of Alexander Barnes, to wit, "Alexander Barnes to Agnes Barnes, conveying all lands in Pemiscot county, headed consideration, love and affection. Instrument, last will, dated September 10, 1869, filed July 8, 1871, recorded Book D, page 9." That entry appears on those abstract books opposite every other tract of land of which Barnes died seised, but not opposite the tract in question. Defendant, to further sustain the issues on her side, put in parol testimony from an old citizen, Mr. Wells, a witness to the will of Alexander Barnes. It is shown thereby that Carleton wrote the will, and that it was signed by Carleton, Keyser, and Wells as witnesses. Mr. Wells remembered that the will left all of testator's real estate, "his entire holding," to Agnes, his wife; that testator left a small sum to "his preacher" who lived in New Orleans, say, $25, and his land he willed to his wife. Mr. Wells did not remember appearing at the probating of the will.

On such record, the questions are: First. Is the absence of the entry showing the recording of a will, with a minute of its terms, opposite or in connection with the land in question on Carleton's Abstracts, fatal to defendant's title? Second. The entry being silent about a probate of Alexander's will, is that silence a fatal flaw in defendant's title? Third. The title having emanated from the government in 1850, and Alexander having become patentee in 1858, and he and his widow and her grantees having paid all taxes since 1858, and the present defendant being in actual possession for more than one year before the institution of this suit, and plaintiffs having paid no taxes for over 30 years and never having been in possession—on such premises, we say, does the 30-year statute of limitation run in favor of defendant? (And herein of the question: Is it necessary to plead the 30-year statute of limitation in a suit under old section 650?) Fourth. In any event, is there laches precluding recovery on the part of plaintiffs? (And herein of the question: Is laches a defense that must be pleaded to be effective?)

It is obvious that if the first two asking propositions be ruled in favor of defendant, plaintiffs' case breaks at that point, the land is hers, and the judgment stands for affirmance. In that view of it, the last two will not be reached. We are of opinion they should be so ruled, and that the trial court solved its problem in good form and according to rule. This, because:

(a) What we have to say on the concrete case may appropriately follow some general pertinent and controlling propositions. Thus: From the very necessity of things, the strict rules of evidence must be relaxed in support of ancient and dim transactions. "There is a time when the rules of evidence must be relaxed. We cannot summon witnesses from the grave, rake memory from its ashes, and give freshness and vigor to the dull and torpid brain." Per Agnew, J., in Richards v. Elwell, 48 Pa., loc. cit. 367. Experience, says the wise Latin, is mistress of things (Magistra rerum experientia). We learn from the school of that mistress that, when records of land titles are in ashes, witnesses to wills dead, scattered to the four winds, or their memories are dull and dim with age, and the transactions in judgment are ancient, the affairs of mankind would fall into an inextricable confusion heading to dismay and evil if the rules of evidence were not relaxed and if the law did not delight in applying certain kindly and convenient presumptions based on common experience and observation. Under such circumstances, as said by Chief Justice Fuller, in Hammond v. Hopkins, 143 U. S., loc. cit. 274, 12 Sup. Ct. 435, 36 L. Ed. 134, "the hour glass must supply the ravages of the scythe." One of the precepts of the law is: What ought to be done is easily presumed. Another is: Presumptions arise from what generally happens. Post v. Pearsall, 22 Wend. (N. Y.) loc. cit. 475 et seq. We may borrow a little with profit from that case, viz.: "The presumption of a fact is the conclusion drawn in the silence of all positive proof, from such existing circumstances as common experience shews ordinarily to accompany or follow the fact presumed. One of the greatest of modern...