Hedrick v. Atchison, Topeka & Santa Fe Railroad Company

• Decision Date: 27 February 1894
• Citation: 25 S.W. 759,120 Mo. 516
• Parties: Hedrick, Appellant, v. The Atchison, Topeka & Santa Fe Railroad Company et al
• Court: Missouri Supreme Court

25 S.W. 759

120 Mo. 516

Hedrick, Appellant, v. The Atchison, Topeka & Santa Fe Railroad Company et al

Supreme Court of Missouri, Second Division

February 27, 1894

[Copyrighted Material Omitted]

Appeal from Adair Circuit Court. -- Hon. Andrew Ellison, Judge.

Ejectment brought September, 1890, for a strip of land which forms the right of way of the defendant railroad company through the west half of the southeast quarter of section 28, township 61, range 14, in Adair county. The appeal was taken under the provisions of section 2253, Revised Statutes, 1889, only a certified copy of the decree made in this cause, etc., being sent up to this court, which decree was entered in favor of the defendant company and the other defendants, and plaintiff has appealed therefrom.

Plaintiff relies on a patent from the United States for the eighty which includes the litigated land, which patent is dated July 20, 1886. The answer of the defendant company consisted of a general denial, admission of possession, and the following "And defendant further alleges that by the laws and statutes in such cases made and provided, it long prior to the bringing of plaintiff's action acquired good right and title to said premises, and the possession thereof.

"And for another and further defense defendant says plaintiff and those under whom he claims have never been in possession of said premises, or any part thereof, and have never paid any taxes thereon, but defendant and its grantors have been in actual, open, notorious and adverse possession of said premises for more than thirty (30) years next before the filing of plaintiff's petition in this cause, holding and claiming said premises and every part thereof against all persons whomsoever, paying the taxes thereon in good faith and making lasting and valuable improvements thereon.

"And for another and further defense to plaintiff's petition defendant says that on July 25, 1856, one Cavil M. Freeman duly and legally entered the west half of the southeast quarter of section 28, township 61, range 14 (which said tract includes the land described in plaintiff's petition), by laying and locating thereon under the military bounty land act of March 3, 1855, military bounty land warrant 8470, and thereupon received of the register of the land office at Milan, Missouri, at which office the said land was subject to entry, a certificate of such entry.

"That by accident, mistake or oversight, the application of said Freeman failed to describe said land, and placed it in some other range, but that it was the intention of said Freeman to enter said west half hereinbefore described, as it was also the intention of the said register and receiver that he should enter said land, and locate said warrant upon said land, and thereupon J. Seaman, then the register of said land office, issued to him said certificate in which said land was properly described as the west half of the southeast quarter of section 28, township 61, of range 14, and that proper notations of such entry were made and entered upon the tract and plat books of said office, showing the facts of said location and entry; that said Freeman thereupon accepted said certificate from said register, and delivered said land warrant therefor, and entered into the possession of the land so entered, to wit: the said west half of the southeast quarter of section 28, township 61, range 14, and so remained in possession thereof, and paid taxes thereon until the twenty-ninth day of February, 1860, when he by general warranty deed sold and conveyed said premises to one William A. Lane, who entered into the possession thereof and paid the taxes thereon until the fifteenth day of April, 1875, when he by general warranty deed sold and conveyed the same to one William E. Parcells, who thereupon entered into possession and paid the taxes thereon; that by means of regular mesne conveyances the right and title of Parcells was sold and conveyed to John G. Saunders and James G. Wilson, and all of said grantees of said Saunders and said Wilson entered into actual possession of said premises and improved the same in good faith, and paid the taxes thereon until the first of January, 1887, and said Wilson and Saunders by their several conveyances sold the premises described in plaintiff's petition to the Chicago, Santa Fe & California Railway Company of Iowa, which thereupon entered into a possession thereof, and commenced in good faith the construction of its line of railroad over said premises at great expense; that on the seventh day of March, 1887, said Saunders and Wilson in pursuance of their several contracts, conveyed said premises by their several warranty deeds to said railway company under which company defendant by regular conveyances claims to own said premises and the right to the possession thereof, and has in good faith made lasting, permanent and very valuable improvements thereon.

"That said Cavil M. Freeman nor his assigns have ever at any time made any claim upon the land which, by mistake, was described in the application of said Freeman, to locate said land warrant, nor has he nor they at any time ever been in possession of said land, or paid any taxes thereon, but both he and they have at all times held and claimed the land herein in controversy as the land entered and located by the said Freeman at said time and place.

"That on the twentieth day of July, 1886, the plaintiff, with full knowledge and notice of the location of said land warrant and the entry of said land by said Cavil M. Freeman, and the fact of the possession of the said Freeman and his grantees, and also the notations of said tract and plat books in the land office, for the purpose of cheating and defrauding the then owners of said land and their grantors, did fraudulently and willfully cause the notations and entries of the said tract and plat books to be changed and altered, and did fraudulently enter said land, and cause to be issued to himself therefor a patent thereon from the general government, with the view of cheating and defrauding the then owners of said land and their grantors, and to secure the same with the valuable improvements thereon. That afterwards, on the seventh day of January, 1887, he filed said patent for record in the office of the recorder of deeds in Adair county, Missouri, and the same was duly recorded in book 17, at page 469, of the records of said office.

"The defendant is informed and believes that one A. C. Widdicombe, who a long time has been a practicing attorney before the land office at Boonville, Missouri, in which office the records, books and papers of the former office at Milan, Missouri, were then and are now kept, and who is the son-in-law of the plaintiff, was the plaintiff's agent and attorney, and conducted and transacted the business for plaintiff, and secured said patent to be so as aforesaid fraudulently and illegally issued. And this defendant avers that said Widdicombe at the time of making said entry and securing said patent for plaintiff, and long prior thereto, had full knowledge of all the facts and circumstances connected with the entry of said Freeman, and also the knowledge that said land was occupied and owned by the grantees of said Freeman. And defendant is also informed and believes that while said land is entered and patented in plaintiff's name, that the said Widdicombe is the real beneficiary of said transaction, and that he has large, if not the sole pecuniary interest in said land, and is in fact and in truth the real party plaintiff in interest in this action.

"Defendant avers that it and its grantors have by reason of the premises acquired and become possessed of, and in equity and good conscience are entitled to, all the equitable right and title of said premises and every part thereof, and that it would be wholly inequitable and unjust to allow plaintiff to take said premises from them, and that in equity plaintiff is and ought to be held as a mere trustee of the legal title for the use and benefit of defendant, wherefore defendant prays that the plaintiff be declared a trustee for the defendant, and that whatever title he may have, if any, by reason of the said entry and patent, be divested out of the plaintiff and vested in this defendant, and for all other and proper relief, orders and decrees that should in equity and good conscience be given, that are reasonable and right, and for general relief."

The defendants Saunders and Wilson, on their own application were made parties defendant and filed an answer to plaintiff's petition similar in substance and effect to that filed by the defendant company. Plaintiff filed a motion to strike out a portion of the answer of Saunders and Wilson, which it seems was denied, because on the same day, April 28, 1891, that this motion was filed, the plaintiff filed a replication to the answer of said Saunders and Wilson. The answer of the defendant company as found in the abstract of defendants, has been carefully compared with the original, and we have also read the original answer of Wilson and Saunders, as well as the motion by plaintiff to strike out, and his replication to said answer. We sent for the original bill of exceptions and papers in this case, because of the following statement made in a supplemental brief by plaintiff's attorneys, A. C Widdicombe and others, to wit: "The 'additions, alterations, corrections, exceptions and suggestions' offered as an additional abstract by respondent, are not warranted by the record. First. The equitable count in defendant's answer, purporting to be set out in full by respondent, is not verified by the record. Second. No separate answer of defendants Wilson and Saunders, neither in matter nor substance, was filed by either. They...