Hunter v. Weil

• Decision Date: 02 June 1920
• Docket Number: No. 20603.,20603.
• Citation: Hunter v. Weil, 222 S.W. 472 (Mo. 1920)
• Parties: HUNTER v. WEIL et al.
• Court: Missouri Supreme Court

222 S.W. 472

HUNTER v.WEIL et al.

No. 20603.

Supreme Court of Missouri, Division No. 1.

June 2, 1920.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Suit by William Hunter against Houston Weil and another.Judgment for defendants, and plaintiff appeals.Affirmed.

R. L. Ward, of Caruthersville, for appellant.

Wm. Fitch and Oliver, Raithel &Lacy, all of St. Louis, for respondents.

SMALL, C.

I.Suit to quiet title with count in ejectment in usual form for 80 acres of land, to wit, W. ½ of S. W. ¼ of section 32, township 18, range 13, in said county.

The answer is a general denial, except that it admits possession of defendants.Also contains paragraph pleading ten-year statute of limitations.

The trial was by the court without a jury.No instructions were asked or given.The court found for the defendantCunningham Land & Improvement Company; that defendant Weil had no interest, except as tenant of said company; and that plaintiff had no interest or title in the land.Judgment was rendered accordingly, and plaintiff appealed to this court.

Plaintiff had no record title, but claims ownership by adverse possession.Plaintiff claims under deed made to him October 12, 1889, by one William C. Finley, purporting to convey to him a number of tracts of land, aggregating some 700 acres, including the tract sued for.The larger portion of the land described in the Finley deed was in one irregular body extending from the 40-acre tract in the southeast corner of section 20 in a southwesterly direction through section 29 to the land in dispute, which was located in the southwest corner of section 32.The following plat, within the shaded lines, shows this irregular tract.The tract sued for is marked A.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff does not claim that he ever fenced or cleared, deadened the timber on, or in any manner improved the land in question.It was low, wet land, and a portion of it was covered by a lake.It was not cultivated nor fit for cultivation until after the year 1901, when public and private drains were constructed after it was in possession of the defendantCunningham Land & Development Company.The land was part of the swamp land originally conveyed by the United States to the state of Missouri, and by the state of Missouri to Pemiscot county.The county sold it to George W. Bushey on the 14th of May, 1857, who at the time paid the purchase price, but took no patent.Bushey and wife conveyed the land to Robert B. Turner by deed dated May 27, 1858, who in turn conveyed, it to Wyatt Mooring by deed dated March 2, 1859.Mooring died intestate in 1874, leaving a widow and nine children surviving him, without having parted with his title.The record title was in Mooring's heirs prior to the time defendants' possession under deeds from them commenced.

Plaintiff's testimony showed that in the year 1898 his agent sold $200 worth of cottonwood timber off of the land to the Cunningham brothers, who afterwards became the incorporators and owners of the defendant company, Cunningham Land & Improvement Company.It also tended to show that portions of the other land described in the deed from Finley in sections 20and29 were cleared, fenced, and cultivated by plaintiff and his tenants for more than ten years prior to 1901, when the evidence tended to show that the Cunninghams took actual possession of the land in question, cleared a portion of it, and put a small house thereon, and a fence around it, so as to include it within their inclosure of other tracts of adjoining land which they owned.The defendants' evidence further tended to show that the Cunninghams went into possession in 1901, under a contract to purchase the land from one Porter, whose wife was one of the heirs of Wyatt Mooring, and who had acquired the interest or had power to convey the interest of numerous other heirs of said Mooring.When Mooring died in 1874 or 1875, most of his children were married and had children, and some of them died and their children inherited their parents' interest.It does not appear whether all the heirs interested conveyed their title to the Cunninghams, but it does appear that a substantial part of them did.The conveyance from Porter was made to John A. Cunningham August 7, 1902.Defendants subsequently procured other deeds conveying the interest of other Mooring heirs.

The petition in this case was filed June 10, 1910.The undisputed evidence shows that John A. Cunningham and the defendant company were in actual possession and control of the land from 1901 up to and including the day suit was brought; that up to the year 1910, from and including the year 1902, they paid the taxes on the land, and would have paid the taxes in 1910 had not the plaintiff"got ahead of them" in so doing.

Defendants' evidence tended to show that in 1909 there was a division fence built between the plaintiff's property on the north and the property in question, and that the plaintiff paid half the cost of this fence and the Cunningham Company the other half; also that a few years after the Cunninghams took Possession some ditches were built which drained the land in question, as well as some land adjoining the same belonging to the plaintiff, and the plaintiff paid his proportion of the expense for his other land, and the defendant company paid its proportion of the expense for the land in question.But plaintiff denies that he knowingly permitted defendants to pay any part of such expense for the division fence or ditches.There was also evidence on the part of the plaintiff that his tenants on his other land took timber for rails, fences, and firewood, from the part of plaintiff's land that was not cleared.But whether they did so from the particular land in question was not, shown.Plaintiff testified generally that his tenants "used it right along."But what the plaintiff intended to say they used it for, or meant by "right along," was not stated.; Plaintiff also testified that he sold timber to one Strother and one Pinion and authorized them to cut it from his land generally, including the land in question.But it does not appear that either of them ever cut any timber from the land sued for.The evidence does not show that plaintiff commenced clearing the 160 acres of land in the same section 32 immediately north of and adjoining the land in suit until about 1896, a year or two before the Cunninghams cut cottonwood timber off of the land in question.So it is not entirely clear from plaintiff's testimony that he paid the taxes every year from 1889 to 1901.He says that he always included this land in his list to the collector to pay the taxes, and he paid them every year, unless some other person "got ahead" of him and paid the taxes.Plaintiff said: "There were some years that somebody else might have paid the taxes before did."The tax receipts were not put in evidence, except for two or three years.Plaintiff said that he had the receipts in court for all the years since he purchased it, including the years 1902, 1903, and 1904, but it was afterwards admitted that defendantCunningham Company paid the taxes for 1902, 1903, and 1904, and subsequent years to 1910.There was no evidence that plaintiff's predecessor, Finley, ever paid taxes or exercised any acts of ownership over this land.

The defendants, to further sustain their title, introduced a patent from Pemiscot county dated July 1, 1910, and recorded July 2, 1910.This patent recited, in the usual form, that on the 14th of May, 1857, George W. Bushey purchased and made full payment for the land, and that by mesne conveyances said Bushey sold and transferred it to Cunningham Land & Improvement Company, who was then the owner of it and was entitled to a patent therefor; that in consideration of the premises, and in conformity with law, the county of Pemiscot therefore "doth give and grant unto the said Cunningham Land & improvement Company, and their heirs, the land above described," to wit, the land in controversy.This patent was duly executed by Joseph Brasher, the presiding judge of the county court, and countersigned by B. M. Tinsley, the clerk of said court.

II.It is strenuously contended by appella...