Jackson v. Ward

• Decision Date: 14 March 1927
• Docket Number: 25930
• Citation: 292 S.W. 7
• Parties: JACKSON v. WARD et al
• Court: Missouri Supreme Court

292 S.W. 7

JACKSON v. WARD et al

No. 25930

Supreme Court of Missouri, Second Division

March 14, 1927

Joseph S. Rust, J. P. Gilmer, James B. Burke, and Grover Tipton & Graves, all of Kansas City, for appellants.

Paxton O'Reilly & Paxton, of Independence, for respondent.

OPINION

HIGBEE, C.

This is an action in the circuit court of Jackson county to quiet title to certain tracts of land bordering on the south side of the Missouri river. The petition was filed November 14 1922. It was tried to the court by agreement as an equity case, resulting in a finding of the issues for the plaintiff. Judgment was rendered in accordance with the prayer of the petition, and the defendants appealed.

The petition alleges that the plaintiff is the owner in fee of the southwest fractional quarter of section 19, containing about 12 acres, the northwest quarter of the northwest quarter and the fractional northeast quarter of the northwest quarter of section 30, township 51, range 30, containing about 10 acres and all accretions thereto, in Jackson county. The petition also describes other tracts. It avers that plaintiff is in possession of all of the land except a tract of less than one acre, situate upon the line between sections 19 and 30, upon which the defendants have recently intruded and erected a cheap cabin, and that defendants claim to be the owners of all the land described in the petition. The prayer is that the court ascertain, determine, and adjudge the estate and interests of the parties severally, etc. The answer admits that the defendants claim title, and prays judgment accordingly.

Laura A. Ward Curtis, one of the defendants, by her separate answer disclaimed any interest in the lands. The reply denies that defendants have any interest in the land; avers that plaintiff and his predecessors in title have had adverse possession of the land continuously since the year 1881 pleads the 10 and 30 year statutes of limitation; and avers that no action or proceeding was ever filed against plaintiff or his predecessor in title; that 'plaintiff's father, under whom plaintiff claims, relying upon the nonaction of defendants and their said ancestors, in 1906 purchased from the heirs of James M. (Hoose) Bledsoe, the southwest fractional quarter of said section 19 and in 1898 from Benjamin Thorp, the then apparent owner, the northwest and northeast fractional quarters of the northwest quarter of said section 30, and paid large sums of money therefor. Wherefore defendants and their ancestors, having lulled those under whom plaintiff claims into a sense of security, are now estopped to assert any title against plaintiff, and plaintiff prays for a decree as described in the petition.'

Appellants' statement is substantially as follows:

'The suit is in the nature of a suit to quiet title, and by agreement was tried as an equity case. It involves the title to two separate tracts of land in Jackson county, Mo., the first a portion of section 30, township 51, range 30, and accretions, and the second a part of section 19, township 31, range 50, and accretions.

'The land involved in section 30 is a triangular piece of land, containing between 4 and 5 acres of land. The title to this tract is admitted in Joel Bateman, under whom both parties claim.

'In 1880 Bateman coveyed this property by deed to W. D. Ward, the husband and father of the defendants, and the title remains in them, unless it has been divested. Plaintiff's title rests on a deed by Bateman to one Texas Reynolds, dated October 5, 1883, in which deed the description of the property conveyed is: 'All 101/2 acres more or less of N. E. Frac. qr. of N. W. frac. qr. of Sec. 30 Twp. 51 R. 30; * * * all lying north and west of Little Blue.'

'All of the N. E. 1/4 of the N. W. 1/4 of section 30 is north and west of the Little Blue.

'The question before the court is whether plaintiff's title, based on the above Texas Reynolds deed of 1883 (which deed defendants contend is void for the above uncertain description), is superior to defendants' title based on the unrecorded deed from Joel Bateman in 1880. This is a suit to quiet title, and the burden is on plaintiff to prove the better of the two respective titles.

'Defendants' title to the property in section 19 comes from the deed by Joel Bateman executed in 1880. The tract involved here is in the southwest fractional quarter of the southwest fractional quarter, section 19, township 31, range 50. This also is a triangular piece of land containing something over 12 acres. Plaintiffs have no title from Joel Bateman to this tract of land, their title being based on a deed from one Hoose Bledsoe, who went on the land in about 1880 without any claim to title, and remained on the land a number of years under the documentary and oral evidence as a tenant of defendants.

'The question before this court is the question of plaintiff's burden to prove title based upon the Hoose Bledsoe deed (Bledsoe never even having color of title) as against defendants' deed and the documentary and oral evidence that Hoose Bledsoe was a tenant of defendants.'

The controversy is thus restricted to the two tracts mentioned in appellants' statement, which may be referred to as the 5 and 12 acre tracts.

Plaintiff showed a clear record title to the northwest quarter of the northwest quarter of section 30, beginning with a conveyance from James Dinning, the patentee of the tract, and by mesne conveyances to Benjamin Thorp, who, with his wife, by deed dated September 22, 1898, conveyed the 'N. W. 1/4 of the N. W. 1/4 of section 30,' and 'all of the northeast fractional 1/4 of the N. W. 1/4 of Sec. 30, Twp. 51, Range 30, containing 10 acres more or less,' to John P. Jackson, by warranty deed for the expressed consideration of $ 8,000. This conveyance included 228 acres, more or less. All of the conveyances in this chain of title were promptly recorded. John P. Jackson devised all of his property to the plaintiff, his only child.

It is agreed that Joel Bateman was the common source of title to the 5-acre tract. In the conveyances this tract is described as containing 10 or 101/2 acres, but its area had been so reduced by floods that in 1881 it is said to have contained less than 5 acres. The record shows this tract was conveyed by George W. Birhle, by deed dated February 20, 1872, to Joel P. Bateman, and by Bateman and his wife, by deed dated October 5, 1883, to Texas Reynolds, describing the tract as 'all 101/2 acres more or less of N. E. frac. qr. of N. W. frac. qr. of Sec. 30, Twp. 51, R. 30 -- all lying north and west of the Little Blue.' This deed was recorded November 8, 1883. Reynolds conveyed this tract to Benjamin Thorp by deed dated November 26, 1887, recorded December 9, 1887, describing it as 'all of the northeast fractional 1/4 of the northwest fractional 1/4 of section 30, township 51, range 30, containing 10 acres more or less,' and Thorp conveyed it to John P. Jackson as above stated.

It appears that the fractional tract in section 19 lying south of the Missouri river was patented to William Hains in 1840, and that he disappeared about the year 1850, probably going to California, and was never heard from thereafter. This tract was known as a lost 40, and was in a wild and unimproved state. In 1879, before W. D. Ward came to the neighborhood, James M. (Hoose) Bledsoe, built a house on this land, cleared, fenced, and put it into cultivation, paid taxes on it, and continued to occupy it with his family, cultivate, and claim it as his property, until he died on March 12, 1900, after which his widow, Mrs. Casinda Bledsoe, and children continued to occupy and cultivate it until September 8, 1906, when Mrs. Casinda Bledsoe and her adult children conveyed the tract to John P. Jackson for the consideration of $ 600, and, after the death of John P. Jackson, the other children of Casinda Bledsoe conveyed their interests in the tract to the plaintiff. John P. Jackson continued in the open, adverse possession of the land in controversy from the date of his purchase, by his tenant, Abe Koger, until his (Jackson's) death in 1918, and such possession was continued by his son, the plaintiff, by his tenants, until in July, 1920, when Mrs. Virginia A. Ward made an unlawful entry upon, and built a small cabin on, this tract in section 19, in a field where Jesse Koger, as plaintiff's tenant, had raised a crop of wheat, then partly in shock. At the instance of the plaintiff, an action of unlawful detainer was commenced by his tenant, Jesse Koger, against Mrs. Ward, resulting in a judgment of ouster against her in the circuit court of Jackson county. The instructions given on the trial authorized the jury to find the issues for the plaintiff Koger if they found from the evidence that he was in the actual possession of the land as the tenant of Jackson at the time of Mrs. Ward's entry. This judgment was affirmed on appeal. See Koger v. Ward (Mo. App.) 243 S.W. 413. Mrs. Ward thereupon built a cabin partly on the 12-acre tract, extending over the section line, in which she and her children took up their abode. This action was then commenced to determine title.

The material evidence pertinent to the issues is as follows:

Abe Koger, a witness for the plaintiff, testified:

'I am 65 years old. I have known and been right around this Jackson farm since 1879. William D. Ward was not on this land (referring to the five acre tract) in 1879. Texas Reynolds was on this land. He lived at a log house down below where Ward built the store in the fall of 1880. The store was about 18x26. There were no other improvements. Ward sold sugar coffee, and flour. I was working for Texas Reynolds by the month on the same tract. He had it rented from Bateman. There was high water in ...