Harwood v. Tracy

• Decision Date: 16 December 1893
• Citation: 24 S.W. 214,118 Mo. 631
• Parties: Harwood v. Tracy, Appellant
• Court: Missouri Supreme Court

24 S.W. 214

118 Mo. 631

Harwood v. Tracy, Appellant

Supreme Court of Missouri, Second Division

December 16, 1893

Appeal from Clinton Circuit Court. -- Hon. James M. Sandusky, Judge.

Reversed and remanded.

Thomas E. Turney for appellant.

(1) The court erred in admitting in evidence the record of the county court to prove the appointment of Baubie and the facts authorizing his appointment. 1 Wharton on Evidence [1 Ed.] page and section 639; Haile v. Palmer, 5 Mo. 403; Lathrop v. Baubie, 106 Mo. 470. (2) Unless the deed to McDaniel and the entry in the county court records rest in Baubie the legal title to the northwest quarter and west half of the northeast quarter, of section 23, township 57, of range 30, the judgment is for the wrong party. The deed vests the legal title in the beneficiaries and only gives to McDaniel and his successors authority to sell and convey lots and out lots in the name of the "Cameron Town Company;" Ellis v. Fisher, 65 Am. Dec. 52; Coulter v. Robinson. 57 Am. Dec. 168; Hooberry v Harding, 3 Coop. Ch. 680; Kay v. Scates, 78 Am Dec. 389; Pugh v. Hayes, 113 Mo. 424; Revised Statutes, 1855, sec. 1, p. 354. (3) The land sued for is neither a lot nor out lot. The authority to sell land not laid off into lots or out lots is given by a distinct provision in the deed; and is dependent upon the conditions enumerated in the provisions. None of them were complied with. (4) The decision in the case of Lathrop v. Baubie, 106 Mo. 470 is an anthority for the positions assumed herein.

Harwood & Miller for respondent.

(1) The appointment of Baubie by the county court was in strict conformity with the power contained in the trust deed and was not against any principle of public policy. (2) A stranger cannot attack such appointment in a collateral proceeding. (3) The fact that a part of the owners of the land upon which the town of Cameron was laid out and platted, sold their interest to Croysdale constitutes no defense to this suit. (4) The defendant admits that Samuel and McCorkle are the common source of title. Plaintiff, having shown title emanating from the common source, is entitled to recover, unless defendant shows a better title from the common source. Miller v. Hardin, 64 Mo. 545. (5) It is an established principle that in ejectment suits where both litigants claim title through the same third party, it is sufficient for the plaintiff to deduce title from the common source. Brown v. Brown, 45 Mo. 412; Fellows v. Wise, 49 Mo. 350; Bank v. Maynard, 51 Mo. 548; Holland v. Adair, 55 Mo. 40; Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

Ejectment for an unnumbered tract or square of land in the city of Cameron, Clinton county, Missouri, bounded on the east by Cherry street, on the south by North street, on the west by Pine street, and on the north by Second street.

Plaintiff deraigned title as follows: It was admitted that Edward M. Samuel and Samuel McCorkle are the common source of title. The city of Cameron is laid out on a part of a tract of land, consisting of two hundred and forty acres, owned by said Samuel and McCorkle. On the third day of April, 1855, said Samuel and McCorkle and their wives made and delivered to William G. McDaniel, their deed, by which they constituted him trustee, for the said Samuel and McCorkle, and Blair H. Matthews, George M. Smith and Michael F. Tiernan, to hold said lands for the use, benefit and profit of said parties in the following proportions, viz., for E. M. Samuel one-third, for Samuel McCorkle one-third, and for said Matthews, Smith and Tiernan one-third. After reciting it was their intention to lay off and establish a town on said real estate, and to avoid any difficulty, trouble or expense in the sale or conveyance of said real estate or any part thereof, they constituted said McDaniel (after he should accept said trust in writing and execute a bond for his faithful performance of his duties) to sell and convey all town and out lots that may be laid off on said real estate and receive the purchase money therefor, which town should be known as "Cameron" and all his deeds so made should be made in the name of the "Cameron Town Company."

Provision is made for his successor in said trust in the following words: "In the event of the death or removal from the county of Clinton to a place, which, in the judgment of a majority of the members, and interests of said company, would be too remote for said trustee to attend to the duties of his trust, or in case of his resignation, or if, from any other cause, said trustee or his successor or successors should in the opinion of a majority of the members of said company, in interest, become disqualified for the performance of his duties as such trustee, the county court of Clinton county, Missouri, may, and is hereby requested, upon the application of any one member of the company to appoint a prudent, sober, responsible and discreet man, as his successor, who, when he shall have agreed in writing, properly acknowledged and recorded, faithfully to execute this trust, and shall have given bond with good and sufficient security, to be approved by said court, in the sum of $ 5,000 with the conditions contained in the bond of the trustee hereby appointed as aforesaid, shall have all the rights, privileges, powers, and emoluments which are hereby conferred on the said William G. McDaniel, so that there shall never be any interruption, or hindrance or delay in the sale or conveyance of the property hereby conveyed in this trust. If the county court of Clinton aforesaid refuse or fail to execute the request here made at any time, a majority of the company in interest, or the executors, or the administrators or such as may not be dead, may, in person, or by agents, or by proxy, duly authorized in writing, select a trustee on the above named conditions."

This deed was read in evidence without objection, and plaintiff then offered the following extract from the records of the county court of Clinton county:

"In the county court of Clinton county, Missouri, Monday, September 1, 1856. Court met pursuant to adjournment, all the judges being present. The following, among other proceedings, were had, to-wit: William G. McDaniel, trustee for the Cameron Town Company, having resigned his trust as such trustee, and Edward M. Samuel, Samuel McCorkle and others, members of said Cameron Town Company, have filed in court here their written request that the court should appoint Albert T. Baubie as his successor. Therefore, it is ordered by the court that the said Albert T. Baubie be, and he is hereby, appointed trustee of the said Cameron Town Company, in place of the said William G. McDaniel. And, therefore, the said Albert T. Baubie files his acceptance in writing, and agrees faithfully to execute said trust, and also further files his bond as such trustee, which said bond is approved by the court."

To the introduction of this record, defendant duly objected because incompetent, immaterial and irrelevant, which objections the court overruled and permitted it to be read, and defendant duly excepted.

Plaintiff then read in evidence a deed from said Baubie, as trustee of Cameron Town Company, to plaintiff, of date January 15, 1886, conveying the land in suit to plaintiff. Defendant admitted his possession and plaintiff rested.

Thereupon, defendant requested the court to declare the law to be that, under the plaintiff's evidence, the plaintiff could not recover, which instruction the court refused to give and defendant excepted.

Defendant then introduced various deeds from the cestui que trust to their interests in the lands, which tended to show that all the title had been conveyed to William E. Croysdale, E. M. Samuel and M. F. Tiernan, prior to and on December 4, 1858.

On the twelfth of May 1859, William E. Croysdale and wife, E. M. Samuel and wife, and M. F. Tiernan and wife, executed, acknowledged and filed in the proper office a plat of the town of Cameron. The plat lays off into lots, out lots and blocks, the two hundred and forty acres of land, but the land in suit is not designated as a block, nor as a lot, or out lot, and it is not described in the plat in any way. The defendant introduced in evidence a deed from Harlow B. Fales and wife, conveying to Willis H. and Robert Kerns, the land in controversy, and a deed from Willis H. and Robert Kerns conveying the land in controversy to the defendant. The first is dated September 29, 1883, and the last is dated July 21, 1885, the consideration being $ 400.

Defendant at the conclusion of all the evidence again prayed the court to declare the law to be that under the pleadings and evidence the finding must be for defendant, which the court refused, and defendant duly excepted. Judgment was rendered for plaintiff, and defendant appeals.

The defendant, in his motion for new trial, and his assignments of error in this court, complains of the action of the circuit court, in admitting the record entry of the county court of Clinton and in refusing to declare that it constituted no valid link in the chain of legal title from the common source of title to plaintiff.

He also insists that as the tract in dispute was not designated as a block, lot or...