Hickman v. Link
| Decision Date | 04 February 1889 |
| Citation | 10 S.W. 600,97 Mo. 482 |
| Parties | Hickman v. Link et al., Appellants |
| Court | Missouri Supreme Court |
[Copyrighted Material Omitted]
Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.
Reversed and remanded.
A. McElhinney for appellants.
(1) The proceeding in the case of Walker v. Bacon, read in evidence, gave color of title to the claim of Ann McCourtney, and the judgment gave her title to the entire tract described in the petition therein as against Goodwin and those holding under him. Martin v. Bonsack, 61 Mo. 556; Crispen v. Hannovan, 50 Mo. 536; Bradstreet v. Huntingdon, 5 Pet. 440; Blight's Lessee v. Rochester, 7 Wheat. 535; Society v. Town, 4 Pet. 480; Hine v. Robinson, 57 Maine, 324; Stearns v. Hendersass, 9 Cush. 497; Wash. on Real Property, (4 Ed.) top p. 137, pp. 124 and 137; Bell v. Longworth, 6 Ind. 272; Fugate v. Pierce, 73 Mo. 538. (2) The attempted purchase by Link and Howell of Goodwin's claim, or outstanding title to the premises, was contrary to public policy, a gross abuse of the marital relation existing between them and their wives, and is absolutely void as to the claim of Mary I. Link as heir of Ann McCourtney. Young v. Adams, 14 B. Mon. 127; Stump v. Finklay, 2 Rawle, 174; Swisshelm's Appeal, 56 Pa. St. 474; 2 Johns. Ch. 252; Varney v. Stevens, 22 Maine, 331; Van Epps v. Van Epps, 9 Paige, 237; Dickens v. Codwise, 1 Sand. Ch. 214; Michael v. Girod, 4 How. (U. S.) 502; Grumley v. Webb, 44 Mo. 444; Thornton v. Irwin, 43 Mo. 155; Hill on Trustees, (4 Am. Ed.) top p. 258.
Crews & Booth for respondent.
(1) Ann McCourtney never had color of title to the land in controversy. To give color of title there must be something in the nature of an acquisition of title from a preceding real or supposed owner. And whatever this may be it must be of such a character as to afford a basis for a bona-fide claim of ownership of such title. City v. Gorman, 29 Mo. 593; Fugate v. Pierce, 49 Mo. 441; Crispen v. Hannovan, 50 Mo. 536; Rannels v. Rannels, 52 Mo. 108; Mylar v. Hughes, 60 Mo. 105; Hamilton v. Boggess, 63 Mo. 233; Hughes v. Israel, 73 Mo. 538; Gaines v. Saunders, 87 Mo. 557; Wright v. Mattison, 18 How. 50. (2) It is immaterial whether said Ann had or had not color of title to the east half of said 480 arpents. But as to said east half her husband died seized of it. It constituted his mansion house and messuage belonging thereto. Possession thereof passed to her as his widow, and the continuance of such possession could give her no title. Salmons v. Davis, 29 Mo. 176; Brown v. Moore, 74 Mo. 633; Keith v. Keith, 80 Mo. 125; Roberts v. Nelson, 87 Mo. 229. (3) Whether plaintiff or defendant prevail, no title is transferred by an action of ejectment. Kimmel v. Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493. (4) Ann McCourtney never had actual possession of the west half of the 480 arpents. If she had color of title to the 480 arpents, still, as her actual possession was confined to the east half, such actual possession was not adverse to Goodwin's title to the west half. Leeper v. Baker, 68 Mo. 400; Tayon v. Ladew, 33 Mo. 205; Schultz v. Lindell, 30 Mo. 310. (5) The claim that the interest Link acquired by the deed from Goodwin enured to his wife is without merit. Mrs. Link paid no part of the purchase money. At the time of the purchase she had neither possession nor shadow of legal or equitable title. There was neither evidence nor pretense that plaintiff took the title of Link with notice of any equitable right. (6) If Mrs. Link had any equitable right, it was not available as a defense, because not pleaded. Russell v. Whitely, 59 Mo. 196.
OPINION
This is an action of ejectment for certain parcels of land which constitute a part of 245 acres of a larger tract of 480 arpents. Mary I. Link is the real defendant.
John McCourtney owned the 480 arpents, and in 1822, conveyed the same to his son, Martin McCourtney, who conveyed the 245 acres to Henry H. Goodwin by deed dated January 21, 1841. Martin McCourtney died in 1852, leaving a widow, Ann McCourtney, and four children. The evidence tends to show that the two boys died without descendants. The daughters, Mary I. and Sarah, were married, the former to Geo. W. Link and the latter to Howell. The widow had actual possession of the part of the land not sold to Goodwin, from the death of her husband to 1866, at which date she died.
Thereafter, and in 1867, Geo. W. Link and Howell procured a quit-claim deed from Goodwin to the 245 acres; and in 1872 they made a division of the land between themselves. The land in suit is a part of that quit-claimed by Howell to Link. In 1876, Link made a deed of trust on his part to secure debts which he owed to the plaintiff and others, and the plaintiff purchased the land at a sale under this deed of trust. He, at a subsequent date, purchased the same land at a sale under an execution on a judgment against Link. The defendant was not a party to the deed of trust, nor to the division of the land between Howell and Geo. W. Link.
In a suit of partition between the heirs of Sarah Howell and the defendant, commenced in 1878, one-half of the 480 arpents was set off to Mary I. Link; before the commencement of this suit she was divorced from Geo. W. Link because of his fault. When Goodwin purchased the 245 acres in 1841, he gave Martin McCourtney two notes of five hundred dollars each, for part of the purchase price of the land; and the evidence tends to show that he then, or about that date, took possession of the land purchased by him. Sloan and Krepps claimed to have acquired the 480 arpents under an execution sale against John McCourtney; and Sloan set up this claim against both Martin McCourtney and Goodwin, and much litigation ensued down to the death of Martin McCourtney in 1852. Soon thereafter, and in 1853, Sloan and the heirs of Krepps commenced another suit in ejectment against Bacon, the tenant of Ann McCourtney, and to which she was a defendant, for the possession of the whole 480 arpents. Goodwin was not then nor thereafter in possession of the 245 acres. The defendants in that case set up the statute of limitations as a defense and on the trial the plaintiff took a non-suit, which judgment was affirmed in this court in 1862.
Geo. W. Link, whose deposition was taken by plaintiff, but read by the defendants, says the old notes were not paid up on account of a suit by Sloan; that they run out of date and were never paid; that he got possession of them and gave them to Goodwin; that he and Howell gave these old notes and five or six hundred dollars to Goodwin for the quit-claim deed; and that he went to Shelby county, where Goodwin resided, and got the deed. The evidence before recited tends strongly to show that Goodwin had abandoned his purchase of the 245 acres, even before the death of Martin McCourtney. It was admitted on the trial that Ann McCourtney never had actual possession of the 245 acres or any part thereof, though she resided on the enclosed portion of the 480 arpents not by her husband sold to Goodwin, and she claimed to own the whole 480 arpents down to the date of her death, a period of some thirteen or fourteen years.
1. We deem it unnecessary to recite the instructions given and refused. It is sufficient to say that the court refused all that were asked by the defendant, and gave a number at the request of the plaintiff. The theory of the defendant's refused instructions is, that the record in the ejectment suit of Sloan and others against Ann McCourtney and Bacon, her tenant, gave her color of title to the 480 arpents, that she acquired the title to the whole by the statute of limitations, and at her death the property descended to her heirs. The theory of the plaintiff's instructions is, that even if the record in that ejectment suit does constitute color of title, still defendant must fail in this defense because Ann McCourtney had no actual possession of any part of the 245 acres sold to Goodwin. Since Ann McCourtney did not have actual possession of the 245 acres it must be shown that she had color of title to the larger tract in order to give her constructive possession of the part sold to Goodwin. Much is said in the books as to what will and what will not constitute color of title, and many of the cases are exceptional in their character. Generally, it may be said that any writing which purports to convey the title to land by appropriate words of transfer, and describes the land, is color of title, though the writing is invalid, actually void, and conveys no title. Fugate v. Pierce, 49 Mo. 441; Hamilton v. Boggess, 63 Mo. 233. But the judgment in the action of ejectment upon the nonsuit taken by the plaintiffs in that suit does not give or even purport to give title. Ann McCourtney did not go into possession of any part of the large tract of 480 arpents under or by virtue of that judgment. She was in actual possession of the part not sold by her husband to Goodwin, when that suit was commenced, claiming the whole. The record in the ejectment suit is good evidence to show that she made claim to the whole. She asserted possession of the whole and defended that possession for a period of eight or nine years in the different courts, and this act was an act of ownership, on her part, and the record in that case is good proof of that act, but it cannot be regarded as color of title.
Her claim to the 245 acres is based upon the ground that Goodwin failed or refused to pay the purchase price and abandoned his possession, and she resumed the claim of ownership of her late husband. When one quits possession the seizin of the owner is restored. Here it is true Goodwin was still the owner; but we conclude that where a vendor sells a...
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