Hubbard v. Keen

• Decision Date: 02 February 1923
• Docket Number: No. 22839.,22839.
• Parties: HUBBARD et al. v. KEEN ux.
• Court: Missouri Supreme Court

247 S.W. 1000

297 Mo. 29

HUBBARD et al. v. KEEN ux.

No. 22839.

Supreme Court of Missouri, in Banc.

February 2, 1923.

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

Suit to quiet title by Charles A. Hubbard and another against Joseph W. Keen and wife. Judgment for defendants, and plaintiffs appeal. Affirmed.

A. S. Cowden and G. A. Watson, both of Springfield, for appellants.

G. W. Goad and Dan M. Nee, both of Springfield, for respondents.

G. G. Lydy, V. O. Coltrane, Allen & Allen, and Barbour & McDavid, all of Springfield, amid curia).

WALKER, J.

This is a suit brought June, 1920, under section 1970, R. S. 1919, to quiet title to certain land in Greene county and in ejectment. Upon a trial by the court, there was a judgment finding that the title was in the defendants and denying the plaintiffs' right of recovery. From this judgment, they have appealed.

The petition in each of the causes of action pleaded embodies the conventional allegations required by the statute and recognized by our procedure. The answer denies plaintiffs' right to recover, and alleges that the defendants own the land and are in possession of the same; that Joseph Powell was the common source of title; that defendants claim title through Martha E. Powell; that plaintiffs claim through their mother Emily Hubbard, who, in conveying the land with her husband, Walter D. Hubbard, in March, 1868, failed to be examined and to acknowledge the deed separate and apart from her, husband; that the purpose of this deed was to exchange the land for certain lands then owned by Martha E. Powell, which lands have ever since been in the possession of the heirs of Walter D. and Emily Hubbard; that Martha E. Powell and her grantees, including the defendants, have ever since said conveyance been in the possession under claim of ownership of the land now sued for; that since that time the plaintiffs have stood by and have permitted Martha E. Powell and her grantees, including the defendants, to pay taxes and improve the property and to permit same to be sold and conveyed a number of times, and have always disclaimed ownership therein and have ratified and confirmed their mother, Emily Hubbard's, deed and that of her husband, by a deed made by plaintiffs and their father, Walter D. Hubbard, in November, 1898; that plaintiffs are estopped and barred by the statute of limitations ; and that they have failed to file any notice claiming title to said lands as required by the act approved April 10, 1917 (Laws 1917, p. 204), and are barred by reason of said failure.

Defendants pray that plaintiffs be enjoined from taking possession of said land and that they be required to specifically perform the contract made between their mother and Martha E. Powell for the exchange of the lands, or that they restore the 80 acres of land and $400 in money received at the time of said exchange of lands between Martha E. Powell and their mother, Emily Hubbard; that defendants be adjudged to be the owners of the land sued for, and that plaintiffs be barred and estopped from claiming any interest therein. A reply was filed, but it is not preserved.

Plaintiffs are the sons and sole heirs of Emily Hubbard, who died in 1916, and of Walter D. Hubbard, her husband, who died in 1912. When this suit was filed, the plaintiffs were each over 50 years of age. Their mother was the daughter of Joseph Powell, who died testate in 1847, seized of the property in question and other lands, which he devised to his wife for life and in equal shares in remainder in fee to his children Emily, Mary, Maria, and Joseph. The testator's widow died prior to 1866, and his heirs were all of full age and married before any of the deeds herein mentioned were made. These deeds were as follows: December 8 1866, two of the heirs, Joseph and Mary, the latter married to M. J. Hubble, who joined in the deed, conveyed their undivided interest to Walter D. Hubbard, the husband of Emily, and to Nathan P. Murphy, the husband of Maria; March 12, 1868, Maria and her husband, Nathan P. Murphy, conveyed their undivided interest to Emily Hubbard; March 12, 1868, Walter D. Hubbard and his wife, Emily, conveyed said land by warranty deed to Martha E. Powell, the wife of Joseph Powell. The acknowledgment of Emily Hubbard failed to recite that she was examined and acknowledged the deed separate and apart from her husband. November 18, 1868, Joseph Powell and his sister Mary conveyed their undivided interest to Maria Murphy and Emily Hubbard, reciting that their deed was made to correct a former deed (not preserved in the record) of the same land to the same parties. When the conveyance by Emily Hubbard and her husband was made to Martha E. Powell, Emily owned one-half of the land—one-fourth under her father's will and one-fourth under the deed from Nathan P. Murphy to her; Walter D. Hubbard, her husband, owned a one-fourth interest in the land under the deed of December 8, 1866, made to him and Nathan P. Murphy; Maria Murphy owned a one-fourth interest under her father's will, which she had failed to convey on account of a defectively executed deed. After receiving the conveyance of March 12, 1868, from plaintiffs' mother and father, Martha D. Powell and the parties claiming under her took possession of the land, paid taxes on it, improved it, and it was sold and conveyed by them and others who acquired title thereto from time to time, the defendants herein being the present title owners and now in possession of the property. Their title was derived from W. E. Freeman a few years before this suit was filed. Prior thereto W. E. Freeman had obtained a quitclaim deed from Maria Wright, formerly Maria Murphy, to her one-fourth interest in the land. The interest thus acquired, as well as that conveyed by Walter D. Hubbard, is held by defendants independent of the claim of plaintiffs. In 1898 Walter D. Hubbard and the plaintiffs conveyed 110 acres of land, not including the 5 acres here in dispute, to Milton A. and James W. McCluer for a consideration of $1. Their deed contained the following recital:

"This deed is made to ratify and confirm the deed heretofore made by Walter D. Hubbard and his wife to Martha E. Powell, March 13, 1868."

Emily Hubbard, the mother, became insane in 1884, and so continued; the remainder of her life being spent in an asylum, where she died in 1916.

The plaintiff Charles A. Hubbard testified that he had always lived within two miles of the land and had never claimed to own any interest in it. Fe presumed that the land was being sold. He did not tell the defendant's grantor, Freeman, that he claimed no interest in the land, but did tell Freeman that he would procure a quitclaim deed to defendant Keen for nothing. The other plaintiff, Walter P. Hubbard, lived in St. Louis. Freeman sent $50 to him for a quitclaim deed, but he refused to make it, and returned the money. Witness said he knew he had an interest in the land his mother owned, but did not know the land. Freeman testified that ho had a talk with Charles A. Hubbard in April, 1920; that the latter then asserted no title to the land. The defendant :Keen testified that, after he bought the land, he had a talk with Charles A. Hubbard and the latter told him he made no claim to it. Defendants knew nothing about the deed of ratification made by Walter D. Hubbard and his sons in 1898.

Epitomizing the facts relative to the title to this land as disclosed by the foregoing statement, we find that, at the time Emily and Walter D. Hubbard executed the deed to Martha E. Powell, dated March 12, 1868, in controversy in this case, the legal title to the land therein described was held as follows: Emily Hubbard a two-fourths interest, Walter D. Hubbard a one-fourth interest, and Maria L. Murphy a one-fourth interest.

Emily Hubbard acquired her interest as follows: A one-fourth under the will of her father, Joseph Powell and a one-fourth by the deed from Maria L. and Nathan P. Murphy, by the deed of March 12, 1868. This deed conveyed only the interest of Nathan P. Murphy, but failed to convey, on account of a defective acknowledgment, the one-fourth interest of his wife, Maria L. Murphy.

Walter D. Hubbard acquired a one-fourth interest by the deed from Martin J. Hubble and Mary J. Hubble, his wife, and Joseph M. Powell and Martha E. Powell, his wife, to Nathan P....