Kansas City v. Scarritt
| Decision Date | 30 June 1902 |
| Citation | 69 S.W. 283,169 Mo. 471 |
| Parties | KANSAS CITY, Appellant, v. SCARRITT et al |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.
Affirmed.
R. B Middlebrook and John Muckle for appellant.
(1) (a) The court erred in admitting in evidence, over plaintiff's objection, the deed from James B. Davenport to William L. Sublette and eleven other grantees, dated August 17, 1843. That deed is void. Not less than a majority of three commissioners, after having been ordered by the court to execute it, could have made a valid deed. The sale was not reported to the court or confirmed, and Davenport was not empowered or directed to make the deed. McCoy v Ragan, 29 Mo. 365. If there was such an order of court as the deed recites, then it was necessary the sales should be reported to the court, on the oaths of a majority of the commissioners, and if the sale were approved and confirmed the court was then authorized by law to make an order directing the commissioners, or a majority of them, but not less than a majority of them, to execute a conveyance pursuant to the sale and order of the court. R. S. 1835, p. 421, secs. 29, 30; Rorer on Sales (2 Ed.), sec. 399; Freeman on Cotenancy and Partition (2 Ed.), sec. 544; 1 Perry on Trusts (4 Ed.), sec. 294; Wardwell v. McDowell, 31 Ill. 364; Osgood v. Franklin, 2 Johns. Ch. (N. Y.) 1; Peter v. Beverly, 10 Pet. (U. S.) 532; Dailey's Appeal, 87 Pa. St. 487; Morville v. Fowle, 144 Mass. 109; Crowley v. Hicks, 72 Wis. 539. There is no evidence that the heirs of Gabriel Predhomme received any part of the consideration for the sale to Sublette et al., but if there were, that would not make a void deed valid. Campbell v. Gas Co., 84 Mo. 352; Henry v. McKerlie, 78 Mo. 416; Ringo v. Hughes, 72 Mo. 136. (b) It was error for the court to admit in evidence, at the instance of defendants, the reply, verdict, instructions of the court, and judgment, respectively, in the case of John Campbell et al. against the city of Kansas. Whittaker v. Whittaker, 157 Mo. 353. (c) It was error for the court to admit in evidence all the testimony contained in the bill of exceptions in the said Campbell case en masse. 1 Dillon on Mun. Corp. (3 Ed.), sec. 305. (2) The court erred in giving instructions numbered 1 and 2, respectively, because the evidence did not show that defendants were "the owners of the record title to said land," and it does not appear that the dedication of the land for a graveyard, about the year 1847, was made "by its then owners." The defendants have shown no title or interest in themselves, or in the Old Town proprietors other than that, if any, conveyed by said Davenport deed. If that deed were valid in other respects, it does not appear that any of the heirs of Gabriel Predhomme was a party to the suit mentioned in the deed, or that his interest was transferred by said deed. "The question of the legal effect of evidence may be raised at any stage of the trial." Pettis County v. Gibson, 73 Mo. 507. (3) In ejectment, plaintiff may rely on any titles he has, even though such titles be inconsistent. St. Louis Public Schools v. Risley, 28 Mo. 415. The city, in its proprietary capacity, could acquire by adverse possession or exclusive continuous possession for ten years, under claim of ownership, the title in fee to the land in controversy, whether it wanted it for a public square, park, graveyard or for public purposes in general. Stephens v. Murray, 132 Mo. 468; Wood on Limitations, p. 93, sec. 53. The title so acquired would not be divested by subsequent declarations or admissions. 1 Am. and Eng. Ency. Law (2 Ed.), p. 886; Byers v. Shepter (Pa.), 5 Cent. Rep. 293; Bruce v. Washington, 80 Tex. 368; Williams v. Wrenn (Tex.), 30 S.W. 509. Certainly, if defendants had no title to the property, it would not follow that the city's title would not be adverse to defendants even if "the city claimed to hold possession of it as a graveyard." There was evidence that the city's possession since 1847 was always under claim of ownership. (4) A graveyard which is "vacated for graveyard uses" and burials prohibited, and in which burials have ceased, is not a public graveyard, "so long as it contains graves and is known and recognized by the public as a graveyard." The conceded condition of the tract of land in controversy, the uses to which it was put from 1860 to 1870 for open commons, camping-grounds, circuses, residences with outhouses and stables for stock, in addition to its having been vacated for graveyard uses and burials having ceased therein, precludes all idea of a graveyard in legal contemplation. If there was any reversionary interest in the Old Town proprietors, the statute of limitations began to run against them in favor of the city, October 30, 1857, when the tract was "vacated for graveyard uses" and burials prohibited, especially as it is conceded that burials thereupon ceased. Stephens v. Murray, supra; Windt v. Reformed Church, 4 Sandf. Ch. 471; Partridge v. Church, 29 Md. 631; Newark v. Watson, 56 N. J. L. 667; Bradley v. Railroad, 91 Mo. 499; Thomas v. Black, 113 Mo. 66; Dyer v. Winter, 89 Mo. 81; 1 Am. and Eng. Ency. Law (2d Ed.), 809. The land ceased to be a graveyard when the city, by ordinance, forbade other interments therein. Stephens v. Murray, supra; Newark v. Watson, supra; Campbell v. Liverpool (L. R.), 9 Eq. 579; Page v. Symonds, 63 N.H. 19; Sohier v. Church, 109 Mass. 21. (5) It is for the court to determine whether the use of a tract of land as a graveyard has been terminated by law, or when it ceased to be a graveyard, when the facts are undisputed or conceded. In other cases it is a mixed question of law for the court, and fact for the jury, as to when a disused graveyard ceased to be a public graveyard; and the jury should be clearly instructed as to the law -- as to what in legal contemplation constitutes a public graveyard, and what facts and circumstances, when the same appear from the evidence, would show an extinction of that use. That the court did not do. Authorities cited supra. (6) A conveyance of the fee of the ground in controversy to the county "in trust and for the uses therein named, expressed or intended (that is, for use as a public graveyard), and for no other purposes," would convey the fee simple title, absolutely, and leave no reversionary interest in the grantor, unless there was an express provision for a reverter embodied in the deed of conveyance. Stewart v. Egaston, 39 U. S. App. 240; Portland v. Terwilliger, 16 Ore. 465; Rawson v. School district, 7 Allen (Mass.) 128; Field v. Providence, 17 R. I. 803; In re Mercer Home, 162 Pa. St. 232; Barr v. Wells, 24 Pa. St. 86; Curlin v. Campbell, 3 Harris (Pa.) 500; Packard v. Ames, 16 Gray 327; Commissioners Mahoning Co. v. Young, 59 F. 96; Woodworth v. Payne, 74 N.Y. 196.
Scarritt, Griffith & Jones, Wallace & Wallace, John W. Noble, H. A. Loevy and H. F. Simrall for respondents.
(1) This is an ordinary ejectment suit in which the plaintiff must recover, if at all, upon the strength of its own title and right of possession, and not upon the weakness of its adversary's. R. S. 1899, sec. 3053; Finley v Babb, 144 Mo. 403. (2) The plaintiff (Kansas City) claims in this suit to have obtained the legal title to the land in controversy by adverse possession. No record or paper title is claimed by the plaintiff. The question for the trial, therefore, was one of fact for the jury, and the jury found by its verdict that the plaintiff had not proven a title by adverse possession. Wilson v. Taylor, 119 Mo. 631. (3) It is admitted by both parties that the land in controversy was being used by the public as a graveyard (under the dedication of 1847) when the city of Kansas was incorporated in 1853, and that whatever control or possession the city assumed at that time was for the furtherance of such public use. In other words, the city assumed, through its police power, to control and regulate the public use of the ground as trustee for the public for graveyard purposes, and this assumption or claim continued up to, and was vehemently asserted in the case of Campbell v. City, 102 Mo. 326. Under this state of facts, the city can not now claim that its possession was adverse to the owners of the legal title. Whatever possession it had was under the dedication or license of the owners, as long as the ground was used as a graveyard and as long as the city claimed the possession of it as a graveyard. The original possession of the city, held under such a license or dedication, could not be changed into an adverse possession without clear and unequivocal notice to the owners of the legal title. (4) The instructions of the court put the plaintiff's claim of adverse possession to the jury fairly, more favorably indeed than the facts of the case justified -- as there was a complete failure on the part of the plaintiff to show that it had been in the possession of the ground in controversy in any other capacity than as trustee for the public for a graveyard for any period of time before April 21, 1884, the date of the commencement of the suit of Campbell v. City, supra. The city's actual possession was sporadic, occurring only twice; once in 1870, when it fenced the square, which act on its part was not inconsistent with its position as trustee, holding the ground as a graveyard, and once in 1879, after it had removed all the bodies and was in the act of converting the square into a park. The few things done by the city, that its counsel claim constituted "acts of ownership," were done while the square was still a graveyard, as defined by this court, and were not sufficient to even remotely suggest to the owners that the city was laying claim to the title, much less to notify them of such...
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