Hunter v. Moore

• Decision Date: 29 March 1918
• Docket Number: No. 19192.,19192.
• Parties: HUNTER et al. v. MOORE.
• Court: Missouri Supreme Court

202 S.W. 544

HUNTER et al. v. MOORE.

No. 19192.

Supreme Court of Missouri, Division No. 1.

March 29, 1918.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Action by Charles P. Hunter and others against Louise C. Moore. Judgment for plaintiffs, and defendant appeals. Affirmed. This action was commenced in the circuit court of Reynolds county, Mo., on March 17, 1914, to quiet title to all of the northwest quarter of section 4, in township 29 of range 2 east, containing 160 acres, located in said county. The petition avers that said real estate is not in the possession of any person, but is wild and uncultivated timber land; that defendant claims some title, estate, or interest in said premises, the nature and character of which is based upon a void sheriff's deed, and cannot be further described, except that said claim is adverse and prejudicial to these plaintiffs. The petition concludes with a prayer asking the court to ascertain and determine the title, etc., of said parties. Defendant, in her answer, admits that she claims title to sad land, and denies every other allegation in petition. The answer further alleges that defendant, and those under whom she claims, have been in the adverse possession of said land for more than 10 years, next before the commencement of this action, and she pleads section 1879, R. S. 1909 of Missouri, in bar of this action. She further alleges that plaintiffs, and those under whom they claim title, have, since March, 1880, paid no taxes on said land, were never in possession thereof, and exercised no acts of ownership over same; that during all the period aforesaid defendant and those under whom she claims title have been paying all the taxes assessed against the same; that they have expended large sums of money in making valuable improvements on said land; that they have cleared and fenced some of same, and increased the value of said premises thereby; that said land has increased in value by lapse of time, and by the improvements aforesaid, etc. The plaintiffs are charged with laches in failing to commence this action sooner. The answer alleges that none of the plaintiffs, or any of those under whom they claim, have ever been in possession of said land for 30 consecutive years; that they have paid no taxes thereon during said period; that defendant has been in the lawful possession of said land for more than one year immediately prior to the filing of the petition herein. She thereupon pleads section 1884, R. S. 1909, in bar of this action. The answer concludes with a prayer, asking the court to ascertain and determine the title to the land in question; to decree that the plaintiffs are estopped by reason of said laches, and by reason of the statutes of limitations aforesaid.

It appears from the record that Michael Dougherty entered the land in controversy on October 31, 1863. Through mesne conveyances the title thereto passed to Ann Johnson in July, 1878. Her deed was recorded in Reynolds county the same year. On March 3, 1880, Ann Johnson conveyed said land by warranty deed to Benjamin Hunter, of Allegheny county, ?a., for the expressed consideration of $640. This deed was filed for record in the recorder's office of Reynolds county, Mo.,, on March 17, 1880.

Plaintiffs offered testimony tending to show that they are the heirs and descendants of Benjamin Hunter, deceased, who was a grocery merchant in Traverse township, Grand Traverse county, Mich., during the years 1880 and 1881. Plaintiff Charles P. Hunter, of Oakland, Cal., testified that he is the son of said last-named Benjamin Hunter; that his father owned land in Reynolds county, Mo.; that he had looked carefully for the deed, and could not find it; that his father died at Neodesha, Kan., in February, 1905, and that his mother died in Michigan in July, 1908. Hattie Hunter, of Oklahoma City, Okl., one of the plaintiffs herein, testified that her husband, Benjamin F. Hunter, was the son of above-named Benjamin Hunter; that she and her husband were married in February, 1892; that in 1889 she thought her husband's father was living at Monett, Mo.; that she knew at that time that he had property in Reynolds county, Mo. She testified that she had never paid any taxes in Reynolds county, Mo., on the land in controversy, nor have any of the other parties paid any taxes, so far as she knew; that she has not exercised any acts of ownership over said land; that her husband was administrator of his father's estate; that most all the heirs of Benjamin Hunter lived in the east, and that none of them lived in Missouri, except said Benjamin Hunter and said C. P. Hunter, who lived in Monett a short time; that she was married in 1892; that none of them lived in Missouri after said date; that her husband, as said administrator, had deeds, but she did not know what lands they covered; that she never made any inquiry concerning the land in controversy; that she goes to Kansas City once in a while to see her sister.

The foregoing was substantially the testimony of plaintiffs in the case.

The defendant offered in evidence a mortgage deed to above land, dated December 29, 1880, from Benjamin Hunter (a widower) of Beitner Station, Grand Traverse county, Mich., to John G. Shields, Wm. F. Buckley and James H. Dorode, to secure $571.35 due on or before July 1, 1881, which said mortgage was filed for record in Reynolds county aforesaid on January 4, 1881. Defendant also offered in evidence a sheriff's tax deed for said land to the Wayne Lumber Company, executed in May, 1889. It was sold under a judgment for the taxes of 1886 against John G. Shields, Wm. T. Buckley, James H. Corado, G. S. Brinkerhoof, Z. T. Fulton, and J. M. Bryden, entered in the circuit court of Reynolds county, Mo., on January 28, 1889. The title of said Lumber Company to the land aforesaid passed by mesne conveyances to defendant, who is still the owner of such interest. It does not appear from the record that Benjamin Hunter—the common source of title —ever paid any taxes on said land, nor does the evidence show that he ever took possession of same. Nor does it affirmatively appear from the testimony that any of the plaintiffs, or either of their predecessors in title, ever paid any taxes on said land, or that they ever had possession of same, or attempted to exercise any acts of ownership over it at any time prior to the commencement of this action.

It appears from the tax statement of the collector that said George L. Brinkinhoof paid the taxes on said land for 1882; that Bulton and Bryden paid the taxes thereon for 1885; that the Wayne Lumber Company paid the taxes on said land for the years 1887 to 1895, inclusive; that Moore and Brown paid the taxes on same for the years 1897 to 1906, inclusive; and that defendant paid the taxes on said land for the years 1907 to 1911, inclusive.

S. J. Hawkins testified in behalf of defendant as follows:

"Q. I will ask you if you know whether or not this land has been used by Louise C. Moore, or her grantors, and if so, in what way? A. It has. Q. What for? A. Pasture; and there is also a strip of six or eight acres in the northwest corner, in the shape of a `V,' cleared, and a field occupied by Mr. Biggs. Q. As tenant for Louise C. Moore? A. Yes, sir. Q. I will ask you whether or not there is a fence, or was a fence, around the northwest quarter? A. Yes, sir; there was; there isn't now. Q. How long was that fence around section 4? A. Three or four years before it was cut up. * * * Q. Do you know how long it stayed there? A. Well, it stayed there two or three years."

Witness further testified that the land in question was used as a pasture in connection with the Pinedale farm after it was fenced; that it was used as a pasture 3 or 4 years before it was fenced. He further testified:

"Q. Is Louise C. Moore exercising any acts of ownership over this land? A. Yes, sir; she keeps off trespassers, and pays the taxes, and has had it surveyed. Of course, the part in cultivation was in cultivation when I first had anything to do with it in 1902."

He said Mr. Biggs fenced this land; that he had a lease of same from defendant. The foregoing is substantially all the testimony presented by the record.

The case was tried at the November term, 1914, of the Reynolds circuit court without a jury. The defendant asked, and the court refused, instruction numbered 2, hereafter mentioned. On May 29, 1915, the court found the issues for plaintiffs, adjudged that they were the owners of said land, and that defendant had no interest therein. The latter, in due time, filed her motions for a new trial and in arrest of judgment. Both of said motions were overruled, exceptions duly saved, and the cause appealed by her to this court.

Leslie C. Green, of Texarkana, and Ernest A. Green, of St. Louis, for appellant. Brewster & Brewster, of Ironton, for respondents.

BAILEY, C. (after stating the facts as above).

I. This case was tried before the court without the intervention of a jury. If there was substantial evidence adduced at the...