Hays v. Pumphrey

• Court: Missouri Supreme Court
• Writing for the Court: WOODSON, J.
• Citation: Hays v. Pumphrey, 226 Mo. 119, 125 S.W. 1109 (Mo. 1910)
• Decision Date: 01 March 1910
• Parties: THOMAS HAYS, WILLIAM STORY and CHARLES ELLENBERGER, Appellants, v. HENRY F. PUMPHREY and L. C. PUMPHREY

125 S.W. 1109

226 Mo. 119

THOMAS HAYS, WILLIAM STORY and CHARLES ELLENBERGER, Appellants, v. HENRY F. PUMPHREY and L. C. PUMPHREY

Supreme Court of Missouri, First Division

March 1, 1910

Appeal from Shannon Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed and remanded (with directions).

Jno. C Brown and Ed. J. Shuck for appellants.

(1) The act transferring the land in controversy from Oregon county to Shannon county was passed with the emergency clause, and was approved and took effect on March 12, 1859. Laws 1859, p 413. (2) The law in 1858, and ever since that date, has required deeds to be recorded in the county where the land conveyed is situated. Hence the record of respondent's deed in Oregon county did not impart notice. R. S. 1855, sec 40, p. 364; same as R. S. 1899, sec. 923; Geer v. Lumber & Mining Co., 134 Mo. 93; Gwynn v. Frazier, 33 Mo. 89. (3) "No instrument in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record." R. S. 1855, sec. 42, p. 364; same as R. S. 1899, sec. 925. (4) The land being unoccupied and the deed to Pumphrey being invalid, there was no reason and no law whereby appellants could attack said deed until the enactment of 650 in 1897, and they instituted this action in less than ten years after that statute was passed. Burkham v. Manewal, 195 Mo. 507; Haarstick v. Gabriel, 200 Mo. 244; Mason v. Crowder, 85 Mo. 532. (5) The thirty-year Statute of Limitation cannot be invoked by respondents who have never been in actual possession. Haarstick v. Gabriel, 200 Mo. 243. (6) Payment of taxes and protecting land against timber thieves were not possession. Neither do they work any estoppel against the true owner. Himmelberger v. McCabe, 220 Mo. 154; Carter v. Hornbeck, 139 Mo. 239; Burkham v. Manewal, 195 Mo. 500. (7) Respondents' grantor, Pumphrey, having failed to record his deed in the proper county, it was invalid as to appellants' grantor; it is not even charged he had any actual notice thereof. Strong v. Whybark, 204 Mo. 341. (8) Appellants' grantor having placed his deed on record, this was all the notice he was required to give to anybody of his title. Bales v. Perry, 51 Mo. 453; Throckmartin v. Pence, 121 Mo. 60; Mylar v. Hughes, 60 Mo. 115; Herman on Estoppel, sec. 968, p. 1092.

OPINION

WOODSON, J.

This suit was instituted in the circuit court of Shannon county, by the plaintiffs against the defendants, under section 650, Revised Statutes 1899, to ascertain and determine title to the north half of section twenty-seven, township twenty-six north, range four west, situate in said county.

The petition was in conventional form and practically followed the language of the statute.

The answer was as follows (formal parts omitted):

"Now this day come 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, Missouri, 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 reason:

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 of said real estate to the plaintiffs' grantor, which had been made a matter of record in the deed records of Shannon county, Missouri, 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 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 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 4, 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 have the defendants been in the possession of the real estate?"

Objected to by the plaintiffs, for the reason it 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 thirty-five 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 ever, at any time, improved the land in controversy? A. I have not.

"Q. Have you ever, at any time, either yourself or by any other person for the defendants, improved any of the land in controversy? A. No.

"Q. This land then is wild and uncultivated timber land? A. Yes. The defendants' possession consists in having parties to look after the land and to keep away trespassers."

This is all the evidence in the case.

I. There are but two questions presented for determination by this record -- the first is, did the subsequently executed warranty deed of Henry Lee, the patentee, to John Vogal dated March 7, 1860, and recorded in Shannon county, November 13, 1873, by virtue of its prior recordation, have the force and effect of...