Hendrickson v. Grable

• Decision Date: 12 June 1900
• Citation: 57 S.W. 784,157 Mo. 42
• Parties: HENDRICKSON v. GRABLE.
• Court: Missouri Supreme Court

57 S.W. 784

157 Mo. 42

HENDRICKSON v. GRABLE.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

DOWER — ESTATE OF INHERITANCE — PUBLIC LANDS — ADVERSE POSSESSION — CONTINUOUS HOLDING — APPEAL AND ERROR.

1. The land in question, on which dower is sought to be assigned, was a part of the swamp lands patented to the state by the United States by Act Cong. Sept. 28, 1850, and granted by the state to P. county by Acts 1868-69. Plaintiff's husband claimed title under an entry by a remote grantor in 1854, which was suspended, and no patent issued, and defendant held under deed from him, in which the wife did not relinquish her dower. On conflicting claims between the county and individuals for the swamp lands, the government of the United States, on the opinion of the secretary of the interior that title had passed to the state in 1850, agreed to refund entry fees received to the person entitled thereto. In perfecting such title an early holder executed deed putting the title in defendant, to the satisfaction of the government, who refunded the entrance fees, and the county patented the lands to him as the ultimate assignee of the first entryman. Held, that plaintiff's husband had not an estate of inheritance in the land, out of which her dower could be assigned, since he and his grantors received only the right to be repaid the entrance fee.

2. A claim that land was held adversely from a time prior to the 1st of August, 1866, when limitations against the state were abolished, until 1884, is not sustained by proof that a tenant, in 1864, held under the claimant, but that he did not charge him any rent; that another tenant, in 1866, said he got it of the claimant; that out of a long line of tenants thereafter only two claimed to hold under him (from 1870 to 1873); and that he sowed oats in 1875, — since the possession was not continuous.

3. A finding of fact that title to certain land had not been acquired by adverse possession will not be reviewed on appeal unless manifestly wrong.

Appeal from circuit court, Polk county; Argus Cox, Judge.

Action by Mary A. Hendrickson against D. W. Grable for assignment of dower. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Rechow & Pufahl, for appellant. John D. Abbe, for respondent.

MARSHALL, J.

This is an action by the plaintiff, as the widow of David Hendrickson, for the assignment of dower in the S. W. ¼ of the S. W. ¼ of section 24, township 33, range 23, in Polk county, of which she alleges that her husband was seised of an estate of inheritance in his lifetime. The answer is a general denial. The judgment of the circuit court was for the defendant, and the plaintiff appealed.

This case and the case of this plaintiff against Watson for the assignment of dower in the S. E. ¼ of the S. W. ¼ of the same section, township, and range, were tried together, and it was agreed that all the testimony should apply to both cases as far as pertinent. This method of trying the two cases together has resulted in some confusion, and it is somewhat difficult to separate the testimony, and apply it to the proper case, as the witnesses do not all testify as to both tracts. The two 40 acres lie adjoining, and it is somewhat difficult to determine how far the testimony of adverse possession applies to the one or the other tract or to both. In fact, some of the witnesses refer to the whole quarter section, and do not attempt to distinguish between any fractional part of it. Both parties agree that the land is a part of the swamp lands patented to the state by the act of congress of September 28, 1850, and granted by the state to Polk county by the Acts of 1868 and 1869. The plaintiff traces title in this way: On the 15th of December, 1854, A. B. Cory entered the S. ½ (which includes this land and the Watson land) of the S. W. ¼ of section 24, township 33, range 23, but this entry was "suspended." No patent was issued to Cory, but on December 27, 1855, he deeded the land to John West. On October 17, 1859, John West deeded it to William Starkey. On the 16th of March, 1867, the sheriff sold the land under a judgment against John West and Moses P. Hart, and David Hendrickson became the purchaser. On the 17th of December, 1867, the sheriff sold the title of Moses P. Hart (it does not appear Hart had any title) in the land for taxes, and David Hendrickson became the purchaser. On March 14, 1868, Moses P. Hart deeded the land to David Hendrickson. These conveyances apply to the land here in suit as well as to that involved in the Watson case. On the 1st of June, 1884, David Hendrickson deeded the land involved in this suit to his daughter (by a former marriage), Mary Gardner, but the plaintiff did not join in this conveyance, or relinquish her dower; and on the 8th of March, 1886, Mary Gardner deeded this land to the defendant, Grable. David Hendrickson died in 1895. The county claimed all the swamp lands (this included) under the Acts of 1868 and 1869, and individuals also claimed by virtue of having entered it in the land office as government land. Some time after the passage of the act of 1869 Polk county appointed Snodgrass and Russell to clear up the controversy as to such suspended entries, and to get the United States government to return the entry fee paid to the land office by individuals, have the individuals turn over the money so returned to the county, and the county would then patent the land to the individual who entered it or his assignee. The government of the United States agreed to this, under a ruling of the secretary of the interior that the government had conveyed its title to the state by the act of 1850, and hence had no title to convey, and therefore should refund the entry fees it had received. But it required that the entryman or his assignee should prove a perfect chain of title to the money. In this case Snodgrass and Russell found that the title had passed regularly from Cory down to William Starkey (though how it does not appear in this record except from the testimony of Snodgrass, which contradicts the chain of title shown by the plaintiff as above set out); so they wrote Starkey, who lived in Kansas, and he said he had sold it to Moses P. Hart, but had never made Hart a deed to it because he had not paid all of the purchase price. In addition to the 40 acres here in suit, there were three other 40's in the same shape, and Starkey agreed to make a deed to Hart for the 160 acres for a consideration of $20. Grable paid $5, — the proportionate part for this 40, — and the owners of the other three 40's paid the remainder of the $20; and Starkey made the deed to Hart, but the deed was never delivered to Hart because Grable insisted upon a deed to his part being made to him. At any rate, this put the title in Grable sufficiently to satisfy the government, and Grable relinquished his claim to the government, and the government repaid the entrance fees, and they were turned over to the county, and the county patented the land in suit to Grable, regarding him as the ultimate assignee of Cory. In this way Grable traces title back of Hendrickson, through Starkey, Hart, and West, to Cory, and claims that Hendrickson was not seised of an estate of inheritance in the land during his lifetime, and hence his widow is not entitled to dower. On the other hand, the plaintiff claims title by direct chain from Cory, and, while admitting that Cory's entry was "suspended" in 1854, and that neither he nor his assignees ever received a patent from the United States, and apparently conceding that the title to these lands passed, under the act of congress of September 28, 1850, from the United States to the state of Missouri, and therefore the government of the United States had no title to convey when Cory attempted to enter this as public lands of the United States in 1854, nevertheless claims that Hendrickson acquired title by limitation, because he entered upon the possession of the land in 1865, and before August 1, 1866, the date when, by the General Statutes, the right to...