Keaton v. Hamilton

• Citation: 277 Mo. 540,211 S.W. 29
• Decision Date: 28 March 1919
• Docket Number: No. 19230.,19230.
• Parties: KEATON v. HAMILTON et al.
• Court: Missouri Supreme Court

211 S.W. 29

277 Mo. 540

KEATON v. HAMILTON et al.

No. 19230.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Appeal from Circuit Court, New Madrid County; Frank Kelly, Judge.

Suit by W. C. Keaton against Paul Hamilton and others. From judgment for defendants, plaintiff appeals. Affirmed.

Brewer & Riley, of New Madrid, for appellant.

Brown & Gallivan, of New Madrid, for respondents.

BLAIR, P. J.

Keaton appeals from an adverse judgment in a suit he brought under section 2535, R. S. 1909, to quiet title to that part of section 20, township 24, range 13, lying west of Little river. The answer avers respondents own the land, pleads the 10 and 31 year statutes of limitation and laches, and prays to have the title quieted. The judgment quiets the title in respondents.

The question presented is whether there is substantial evidence warranting a finding for respondents. The land involved was patented to the state under the Swamp Land Act of September 28, 1850, and passed to Stoddard county under the act of the General Assembly of 1851. The abstract shows Stoddard county conveyed to Starrs May 1, 1869, and the record title passed by mesne conveyances to appellant, who, in 1909, bought from the heirs of Burns, who acquired title in 1870 and died in 1893.

Respondents introduced in evidence a patent by the state to New Madrid county, dated 1875, patent from New Madrid county to Himmelberger, dated 1899, and deeds whereby Himmelberger's title, if any, to the land in suit and the east fractional half of section 19, township 24, range 13, passed to respondents in the proportions set forth in the judgment. Respondents also offered in evidence a sheriff's deed under sale for taxes of 1888, 1889, 1890, 1891, and 1892. The petition in the tax suit was filed and order of publication made November 22, 1893, against Burns, through whom appellant claims. It appears that Burns died December 16, 1893. There is evidence that the first two or three publications of the order described the wrong land, and that the order itself originally called for the wrong township, but that there had been an erasure and correction. The judgment description was not free from suspicion. Counsel for respondents did not claim the tax deed was valid, but stated it was offered "for the purpose of showing good faith * * * and as color of title."

In 1898 William Crumpecker, a tenant of respondents' grantors, cleared and fenced a tract of 20 or 30 acres on the east side of the east fractional half of section 19, and occupied and cultivated it during 1898 and 1899. This inclosure included a small strip of the land in suit. Other tenants occupied this parcel and cultivated it, or most of it, until 1903. Between 1903 and 1907 it does not appear that any one was in the actual occupancy of the inclosure. In 1907 another tenant went into possession, and was followed by Isaac Tippy. In 1907 two boys named Robinson built a small house or "shack" on section 20 and occupied it for a time not very definitely shown. They were trappers, and did not occupy as tenants, except for one month, February, 1908.

Besides inclosing and clearing the tract above mentioned, Crumpecker cut from the land in suit rails, posts, firewood, and logs, out of which he built the house he erected on the clearing, and respondents' grantors sold off all the timber on the land in suit and the east fractional half of section 19. Some drainage ditches were dug and a levee repaired (by respondents' grantors), which protected the land in suit. From 1894 down to the trial those under whom respondents claim paid all the taxes, and those under whom appellant claims paid no taxes. There was other testimony concerning the nonpayment of taxes prior to 1894.

I. The land in dispute was in Stoddard county in 1869, and that county had the power to convey. The change of boundary whereby the land became a part of New Madrid county did not occur until 1872. This court has so decided with respect to land in the same situation. Keaton v. Hamilton, 264 Mo. 564, 175 S. W. 967. The record shows a deed from Stoddard county, by Special Commissioner Alfred Eltzroth, to Starrs in 1869. Appellant's record title from Starrs seems not to have been attacked in the trial court and is not assailed here.

II. Respondents offered a patent from the state to New Madrid county, dated in 1875, and certain proceedings of the county court between December, 1888, and May, 1899, and a patent from the county to Himmelberger in the last-mentioned year. Hamilton, Wiles, and Richard, by mesne conveyances, acquired the Himmelberger claim. So far as this record is concerned, it may be conceded Himmelberger got no title to any part of section 20 by the patent of 1899, since that section west of Little river had passed into private ownership in 1869, and New Madrid county had no title to convey.

III. The tax deed of 1894 was offered solely as color of title. Respondents did not offer it as conveying any title to their grantors. Under a recent decision, a judgment against one who dies before verdict is void. Cole v. Parker-Washington, 207 S. W. 749.

IV. There is no substantial evidence that there was any actual possession of any of the land in either section 20 or section 19 for 10 consecutive years. Crumpecker was in possession of part of section 19 and part of section 20 in 1898 and 1899. According to Smith, one of respondents' grantors, lie and his co-owners had some one in possession of the tract Crumpecker fenced until May 21, 1903, when Allison bought. There is no evidence any one else was on the land until 1907, less than 10 years before this suit was brought.

V. The possession of the Robinsons was not very clearly shown to have extended over an entire year. It is quite clear they did not take possession under respondents. They were not tenants, and no rent was demanded of them until February, 1908, less than a year before they left the property. They were trappers, and occupied under no claim for themselves or respondents. Their possession did not satisfy the 31-year statute. Shumate v. Snyder, 140 Mo. loc. cit. 88, 41 S. W, 781.

VI. Section 1882, R. S. 1909, reads as follows:

"The possession, under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract."

(a) The evidence tended to show that in 1898 responde...