Hill v. Arnold

• Decision Date: 25 May 1915
• Docket Number: No. 17092.,17092.
• Parties: HILL et al. v. ARNOLD et al.
• Court: Missouri Supreme Court

177 S.W. 343

HILL et al. v. ARNOLD et al.

No. 17092.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Margaret M. Hill and others against Mary G. Arnold and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

This is a suit in ejectment to recover the possession of the following described property: Commencing 971/3 poles north of the southeast corner of the S. W. ¼ of section 14, township 29, range 22; thence west 12 poles; thence north 131/3 poles; thence east 12 poles; thence south 131/3 poles to the beginning, excepting and reserving a strip of ground 3% rods in width across the north side and a strip of ground 40 feet in width across the south side thereof, situate in the city of Springfield, Greene county, Mo. Trial was had in the circuit court of Greene county, Mo., resulting in a judgment in favor of the plaintiffs. Defendants have duly perfected an appeal to this court.

Henry Caldwell is the common source of title. The evidence concerning plaintiffs' paper title was substantially as follows: July 5, 1889, said Caldwell executed a deed of trust on this property to secure a note for $154.50. John L. Mooney was the beneficiary in this deed of trust. Said deed of trust was foreclosed by sale by the trustee in said deed of trust on the 9th day of June, 1892. Maria C. Mooney became the purchaser of the property at the trustee's sale for the sum of $350, and the trustee made a deed to her, conveying the premises, on the 27th day of May, 1893. Later said Maria C. Mooney died testate, and by the terms of her will, which was probated on January 13, 1906, all of her real estate was devised to John L. Mooney. Said John L. Mooney died about four years prior to the institution of this suit, and the plaintiffs herein are his only heirs at law.

The evidence concerning defendants' paper title was substantially as follows: On February 14, 1883, said Caldwell, the common source of title, executed a deed of trust on this property to secure a note in the sum of $35 made payable to F. T. Mills. This deed of trust was never foreclosed, but appears to have been canceled by a decree entered in the circuit court of Greene county, Mo., May 18, 1889, in a suit wherein Henry Caldwell was plaintiff and F. T. Mills, Mahala C. Wright, and C. C. Wright were defendants. The decree in that case is in words and figures as follows:

"Comes now the said plaintiff, by his attorneys, Thrasher, White & McCammon, and the defendant F. T. Mills having appeared to the petition, by his attorneys, Boyd and Delaney, and the defendants Mahala C. Wright and C. C. Wright having appeared to the petition by their attorney, G. M. Sebree, say nothing farther in bar of the action of plaintiff. Wherefore the plaintiff sought to recover of the defendant by reason of the premises, and the plaintiff's cause of action, being a proceeding to redeem the said premises, described in said petition, from the incumbrance of mortgage, and to take an account between the plaintiff and the defendants, the court upon the hearing of the evidence, produced by the plaintiff, in said cause, and all things being fully seen and heard, the court doth find that the plaintiff, Henry Caldwell was, on the 14th day of February, 1883, the owner of the tract of land, situated in the city of Springfield, in Greene county, and state of Missouri, described as follows, to wit: Beginning ninety-seven and one-third (971/3) poles north of the southeast corner of the southwest quarter of section fourteen (14) of township twenty-nine (29), in range twenty-two (22); thence west twelve (12) poles; thence north thirteen and one-third (131/3) poles; thence east twelve (12) poles; thence south thirteen and one-third (131/3) poles to the beginning, except a strip of ground three and one-third (31/3) rods in width, across the north side, and a strip of ground forty (40) feet across the south side thereof. That said plaintiff, Henry Caldwell, did, on said 14th of February, 1883, execute and deliver' to F. S. Heffernan, trustee for defendant, F. T. Mills, a deed of trust, conveying said tract of land, to secure the payment of a promissory note therein described, the said deed of trust being recorded in the office of the recorder of deeds of Greene county, Missouri, in Book fourteen (14), on page one hundred and eighty-six (186). That there now remains due on said note, the sum of fifteen dollars ($15.00), and that said defendant, Mills, has paid in taxes upon said premises, the sum of ten ($10.00) dollars.

"The court doth further find that the defendant F. T. Mills procured and caused said premises to be sold for taxes, as alleged in plaintiff's petition, and [at] said sale for taxes became the purchaser thereof, receiving a deed to the same from the sheriff of Greene county, which sheriff's deed is recorded in the office of the recorder of deeds for said Greene county, in Book 89, on Page 217; that after said purchase of said land for taxes the said defendant F. T. Mills conveyed the same by quitclaim deed to the defendant Mahala C. Wright. And the court cloth further find that the defendants Mahala C. Wright and C. C. Wright, are in possession of said premises, holding the same under the said quitclaim deed from defendant Mills, which quitclaim deed is recorded in the office of the recorder of deeds for Greene county, in Book 65, on page 631. And the court doth further find that the said defendant Mills was, by the said deed of trust, prevented and precluded from acquiring a tax title to said premises, against his mortgagor, the plaintiff, and the defendants Mahala C. Wright and C. C. Wright took seed premises with notice thereof.

"It is therefore considered by the court, adjudged and decreed, that all title, and interest of the said defendant Mills and the said defendants Mahala C. Wright and C. C. Wright be...