Jones v. Kirk

• Decision Date: 16 March 1917
• Docket Number: No. 17966.,17966.
• Citation: 194 S.W. 44,270 Mo. 408
• Parties: JONES v. KIRK et al.
• Court: Missouri Supreme Court

194 S.W. 44

270 Mo. 408

JONES v. KIRK et al.

No. 17966.

Supreme Court of Missouri, Division No. 2.

March 16, 1917.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Lillie A. Jones against James A. Kirk and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The petition is in two counts, one in ejectment, and one seeking partition. The land involved in the ejectment count is an undivided one-ninth interest in the southeast quarter of the northeast quarter of section 33, township 28, range 32, Jasper county, Mo. The answer is a general denial, a plea of the statute of limitations, and a separate count seeking, by way of affirmative relief, to establish a lost deed alleged to have been executed in 1860 by Juliette K. Davis and husband (plaintiff claims under said Juliette K. Davis as heir) to Benjamin C. Webb, conveying an undivided one-ninth interest of the land in dispute. Trial was had before the court, without a jury, resulting in a judgment in favor of the defendant establishing said lost deed. Plaintiff has duly appealed.

Upon the trial the following admissions were made, to wit: Elijah C. Webb was the common source of title, and died intestate in Jasper county in 1859. He left surviving him nine heirs at law, including Juliette K. Davis and Benjamin C. Webb. It was also admitted at the trial that defendant Kirk, by proper conveyances, had acquired the title of all of the Elijah C. Webb heirs, except that of said Juliette K. Davis. On March 8, 1867, Benjamin C. Webb and wife (the alleged grantees in said lost deed and one of the nine heirs as aforesaid) executed a quitclaim deed to one John S. McBride, whereby they undertook to convey an undivided two-ninths interest of this land. About the same date, by other conveyances, said John S. McBride acquired the record title to the remaining seven-ninths interest in said land from the other seven heirs at law of the said Elijah C. Webb, deceased, and from that time on said John S. McBride and his successors in title have executed conveyances purporting to pass the entire title and interest in this land. It was further admitted that defendant Kirk and those under whom he claims have been in the actual, peaceable, open, and notorious possession of the land in question since 1867, claiming to own the entire interest therein and to have paid all taxes on said land since that date.

Plaintiff introduced evidence tending to show that she is the daughter of Juliette K. Davis, and that her mother died in August, 1864, and left surviving her her husband, William P. Davis, the plaintiff, and two other children. The two other children died in the years 1877 and 1879, respectively. Plaintiff was married in 1874 to Thomas H. Jones, who died on December 21, 1908. Plaintiff's father, William P. Davis, remarried twice after the death of plaintiff's mother. There were no children born of the second marriage. There was one child born of the third marriage, William Clyde Davis, born in 1886, who is still living. Plaintiff's father died on June 3, 1906. This suit was instituted October 28, 1909.

The evidence upon the part of the defendants was substantially as follows:

Eliza J. Chinn, by deposition, testified: That she was 81 years old, and that in 1850 she married Ben C. Webb (the alleged grantee in the lost deed), and that her said (first) husband died in the year 1888. The witness was acquainted with Juliette Catherine Davis, daughter of Elijah C. Webb, and remembered a "transaction of Mrs. Davis and her husband disposing of their interest in the Elijah C. Webb estate." "It was in '60; the spring of '60." That "Mr. Davis and his wife and a justice of the peace came to our house to sign it." The justice "lived in this county, somewhere, I suppose. I don't remember just where he lived; Wm. Davis and his wife had him come down there." That Mr. Webb wrote the deed first, and Wm. Davis and his wife signed the instrument. That Ben C. Webb was buying the land. "I can't give you the numbers or describe the land to you at all, but it was the land; I don't know who owns it now; McBride's old place it used to be. * * * No, sir; I don't know; I could not tell you the number of acres in it." That Mr. and Mrs. Davis signed the deed that her husband had written. "The deed was burned in time of the war, and they say it was never recorded. I suppose it was. They say it don't show, but our deeds were all burned in time of the war." "Mr. Webb had the deed there the day after Mr. and Mrs. Davis signed the deed, and the justice signed the acknowledgment." That it was kept in the house until the war broke out when it was hidden in the field under a pile of rocks "in a tin box and a wooden box over that. * * * Some boys found them and brought them to us. I was away from home when the house burnt. They had been brought to the house, but had never been put away any more. I was sick, and they moved me to my mother's; I wasn't there when the house was burned, but everything was burned the time they were through burning houses there, the time old man Hatcher and Jessie Ferry was killed." The house was burned in 1863. The witness further testified: That her husband paid for this land with stock, "two yoke of work cattle, some milk cows, some young heifers, and a couple of young mares." That James Johnson, the boy who worked for Mr. Davis at that time, came and took the stock to Mr. Davis' home the next morning. That the land that day purchased by witness' husband was included in the land that she and her husband afterwards sold to John S. McBride. That shortly after this transaction Mr. and Mrs. Davis bought land "over west of here; somewhere west of town." After this time the witness' husband claimed to own the land, and Juliette K. Davis "never claimed it after she sold it, of course."

J. M. Johnson, by deposition, testified: That he was 67 years old, and was born and raised in Jasper county. That he was acquainted with William P. Davis and his wife. That he lived about 3½ miles from the Webb homestead, and was acquainted with Elijah C. Webb and Benjamin C. Webb. That he worked for William P. Davis in 1859 and '60. That he remembered "a transaction concerning the sale of the interest in the Elijah C. Webb estate between Webb and Davis," and "was working there when the trade was made." That the witness and Mr. and Mrs. Davis went to Ben Webb's place one evening, and stayed over night, and in the morning they wrote the instrument (the witness used the word "deed," but the court struck out the character of the instrument). That Mr. Webb wrote the instrument "on his own table," and "after he got it written he read it over and called me as a witness; then he handed it to Mr. Davis, and he read it over." "Mr. Davis was making the deed to Mr. Webb." That "after the instrument was read over, we went out into the lot and took out the cattle, and drove them home." "Mr. and Mrs. Davis drove them down to Mr. Davis' home." On cross-examination this witness testified that there was no one else in the house to witness the deed except the witness Benjamin C. Webb and William P. Davis, and that William P. Davis did not sign the deed that morning. The witness further stated that he was not there the next day "when him and his wife signed it up." The witness was not there when the deed was signed, but stated that he took care of the stock until they came back, and they said that they had signed it. The witness did not read the paper the morning that he was there; stating, "I aint got much education, and they read it over to me." "Yes, they called on me to witness the deed. They took the cattle over that morning, two yoke of cattle, two cows,, and two yearling heifers, to William...