Hays v. Pumphrey

• Decision Date: 01 March 1910
• Citation: 226 Mo. 119,125 S.W. 1109
• Parties: HAYS et al. v. PUMPHREY et al.
• Court: Missouri Supreme Court

125 S.W. 1109

226 Mo. 119

HAYS et al. v. PUMPHREY et al.

Supreme Court of Missouri. Division No. 1.

March 1, 1910.

1. VENDOR AND PURCHASER (§ 233) — SUBSEQUENT BONA FIDE PURCHASER.

Under Rev. St. 1899, § 925 (Ann. St. 1906, p. 847), providing that no written instrument shall be valid except as between the parties and such as have actual notice until the same is deposited for record, a grantee for a valuable consideration and without notice who first records his deed takes the title as against a prior grantee of the same land.

2. VENDOR AND PURCHASER (§ 231) — SUBSEQUENT BONA FIDE PURCHASER — RECORD AS NOTICE.

The record of a deed to land imparts notice to subsequent purchasers only when the deed is recorded in the county where the land is situated.

3. ADVERSE POSSESSION (§ 114) — SUFFICIENCY OF EVIDENCE.

Evidence held insufficient to show adverse possession by defendants of wild and uncultivated land.

4. ADVERSE POSSESSION (§ 88) — SUFFICIENCY — PAYMENT OF TAXES.

A stranger to the title of land cannot acquire title by adverse possession merely by his payment of taxes thereon for the time required under the statute of limitations.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by Thomas Hays and others against Henry F. Pumphrey and another. Defendants had judgment, and plaintiffs appeal. Reversed, with directions.

This suit was instituted in the circuit court of Shannon county by the plaintiffs against the defendants, under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to ascertain and determine title to the N. ½ of section 27, township 26 N., range 4 W., situate in said county. The petition was in conventional form, and practically followed the language of the statute. And the answer was as follows (formal parts omitted): "Now this day comes Henry F. Pumphrey and L. C. Pumphrey, and for their answer admit that they own and claim title to the land described in plaintiffs' petition, and for further answer deny each and every other allegation there contained, and, having answered, ask to be discharged with their costs in this action." A trial was had before the court without the intervention of a jury, which resulted in a decree perfecting the title to said land in defendants. After moving unsuccessfully for a new trial, and saving all proper exceptions, plaintiffs duly appealed the cause to this court.

At the trial it was admitted by the parties to the cause that the real estate involved was on February 3, 1859, patented by the United States to one Henry Lee. The plaintiffs then offered and read in evidence a general warranty deed from the patentee, Henry Lee, to John Vogal, conveying the land in controversy, dated March 7, 1860, consideration $400, and recorded in said Shannon county on the 13th day of November, 1873. The plaintiffs then read in evidence a deed from the said John Vogal and Jane Vogal, his wife, conveying all the land in controversy to William Burns, dated the 5th day of September 1874, and duly recorded in Shannon county, state of Missouri. The plaintiffs next read in evidence a deed from the said William Burns and Mary Jane Burns, his wife, to these plaintiffs, William Story, Thomas Hays, and Charles Ellenberger, dated October 4, 1876, and recorded November 11, 1876, in the deed records of Shannon county. The plaintiffs here rest their case. The defendants to sustain the issues on their part offered to read in evidence Book K at page 245 of the Deed Records of Shannon county, Mo., being the record of a warranty deed from the patentee, Henry Lee, to William F. Pumphrey, dated November 10, 1858, purporting to convey the land in question in consideration of $320 paid.

The plaintiffs objected to the introduction of the deed offered in evidence for the reasons: First. Because the deed offered in evidence purports to convey land in Oregon county. Second. Because the deed offered in evidence was recorded in Oregon county. Third. Because the deed offered in evidence was recorded in Oregon county, and the record of a deed recorded in Oregon county is no notice to a party buying real estate in Shannon county, and the plaintiffs further object to the introduction of the deed offered in evidence for the reason that the grantor in said deed had heretofore executed a conveyance to said real estate to the plaintiffs' grantor, which had been made a matter of record in the deed records of Shannon county, Mo., prior to the recording of the deed offered in evidence, which objection was by the court overruled, and said deed was admitted in evidence, to which action of the court in overruling the plaintiffs' objection and in admitting said deed the plaintiffs then and there excepted. Said deed was a general warranty deed, duly acknowledged December 10, 1858, and recorded May 31, 1859, in the office of the recorder of deeds of Oregon county. Said deed was also filed for record in Shannon county July 21, 1874, at 4 o'clock p. m., and recorded on July 22, 1874. It was admitted by both the plaintiffs and the defendants that the land described in the deed offered and read in evidence and the land involved in this controversy was a part of Shannon county at the time of the filing of said deed for record in Oregon county, May 31, 1859, and has been a part of said Shannon county ever since the 12th day of March, 1859. The defendants next offered in evidence Deed Record N, at page 150, being the record of a deed, dated February 1, 1876, from or purporting to convey the interest of William F. Pumphrey and wife in and to the same land to Henry F. Pumphrey and L. C. Pumphrey. The plaintiffs objected to the deed offered in evidence, for the reasons that the deed purports to convey the interests of William F. Pumphrey and wife, whose grantor had heretofore conveyed said real estate to the plaintiffs' grantor, and the deed had been made a matter of record in the deed records of Shannon county. The court overruled the objection, and the deed was admitted, to all of which plaintiffs excepted. Said deed was a general warranty deed, duly acknowledged and recorded in the office of the recorder of deeds of Oregon county November 13, 1876. This deed also bore the additional filing mark, "Filed and recorded December 4th, 1876, at 4 o'clock p. m., John M. Dougherty, Recorder." The defendants, to sustain the issues on their part, introduced as a witness Henry Pumphrey, who testified as follows: "Q. You are one of the defendants, are you not? A. I am. Q. State who has the possession of the land in controversy? (Objected to by plaintiffs, for the reason that the question elicits or requires only the opinion of the witness, which objection of the plaintiffs was by the court overruled, to which action of the court in overruling the plaintiffs' objection the plaintiffs then and there excepted.) A. The defendants are in the possession of the land in controversy. Q. How long has the defendants been in the possession of the real estate? (Objected to by the plaintiffs, for the reason requires and the answer could be nothing more nor less than the opinion of the witness, which objection was by the court overruled, to which action of the court in overruling the plaintiffs' objection plaintiffs then and there excepted.) A. The defendants have been in possession of the land in controversy for about 35 years. Q. State the years that yourself and your grantors have paid the taxes on the land in controversy? (Objected to by the plaintiffs for the reason that the witness, first, cannot testify as to the acts of his grantors; second, because it is not the best evidence; third, because the defendants have not as yet accounted for the loss of the tax receipts, which objection was by the court overruled, to which action of the court in overruling the plaintiffs' objection the plaintiffs then and there excepted.) A. Myself and my grantors have paid the taxes since 1858." Witness cross-examined by plaintiff: "Q. Have you...