Kinsolving v. W. D. Lasswell Lumber Company

• Decision Date: 07 December 1927
• Docket Number: 25549
• Parties: Josie Kinsolving, Appellant, v. W. D. Lasswell Lumber Company and W. D. Lasswell
• Court: Missouri Supreme Court

300 S.W. 506

318 Mo. 408

Josie Kinsolving, Appellant, v. W. D. Lasswell Lumber Company and W. D. Lasswell

No. 25549

Supreme Court of Missouri

December 7, 1927

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Affirmed.

Smith & Zimmerman for appellant.

(1) The court erred in refusing appellant's declaration of law number 1, because (a) If Dunklin County levied, assessed and collected taxes against the lands in suit from appellant and her grantors for a long period of years, prior to the execution of the patent to Jones, and exercised such acts of ownership over the land as it was susceptible of, then Dunklin County, and those claiming under her, are estopped from claiming title to the lands in suit. Nell v Conover, 223 Mo. 495; Dunklin County v Chouteau, 120 Mo. 595; Biglow, Estoppel, (2 Ed.) p. 346. (b) Formerly, the principle of estoppel was applied to all cases where one by words, or by his conduct caused another to believe in the existence of a certain state of things and induced him to act on that belief, or permitted him to alter his condition. 2 Coke's Littleton, sec. 352a; Vale v. City of Independence, 116 Mo. 333. (c) Estoppel may arise by conduct, though there is no intent to deceive. Maxon v. Lane, 124 Ind. 592; Rogers v. Railway Co., 100 Me. 86; Ladick v. Gill, 68 Neb. 273. (d) Title by estoppel is sufficient to maintain ejectment and sufficient to support title in the case at bar. George v. Tate, 102 U.S. 570. (e) The doctrine of estoppel in pais binds not only the parties, but their privates in blood, in law, or in estate. Hassenritter v. Kirchhoffer, 79 Mo. 239; Broadwell v. Merritt, 87 Mo. 102; Cooley v. Warren, 53 Mo. 169; Stoutmore v. Clark, 70 Mo. 471; St. Louis v. Ferry Co., 15 Mo.App. 227; Johnson v. Autricken, 205 Mo. 244; Ming v. Olster, 195 Mo. 472; Bedells v. Smyser, 209 U.S. 393. Laches means an unwarrantable delay or neglect to do a thing or enforce a right at a proper time and is applied in equitable actions, because equity does not encourage stale claims. Lanye Company v. Loch, 130 U.S. 193; In re Whittier, 157 Mass. 46; Meall v. Kaslier, 137 U.S. 556; Lemorie v. Dunklin County, 51 F. 487; Simpson v. Stoddard County, 167 Mo. 376. (2) The court erred in refusing appellant's declaration of law number 2, because the evidence shows that the appellant had been in full possession of the lands in suit for more than ten consecutive years, before the institution of this suit, claiming to be the owner of the same, and that she had exercised such acts of ownership over the lands as they were susceptible of. R. S. 1919, sec. 1305; Hamilton v. West, 63 Mo. 93; Mississippi Co. v. Vowels, 101 Mo. 225; Bank v. Clovin, 60 Mo. 559; Goltermann v. Schielmeyer, 111 Mo. 404; Franklin v. Cunningham, 187 Mo. 184.

Hal H. McHaney for respondent.

(1) The court did not err in refusing appellant's declaration of law number 1, because the acts of officers transacting the business of the county will not estop the county where their acts are unauthorized, as where they levy and collect taxes against property not belonging to the person taxed, but belonging to the county. Senter v. Wisconsin Lumber Co., 255 Mo. 607; Hooke v. Chitwood, 127 Mo. 372; City of St. Louis v. Gorman, 29 Mo. 599; Howard Co. v. Bullis, 49 Iowa 521; State v. Portsmouth Sav. Bank, 106 Ind. 458; Bump v. Butler Co., 93 F. 290; State v. Ball, 90 Neb. 215; Crane v. Reeder, 25 Mich. 320. (2) The court did not err in refusing appellant's declaration of law number 2. (a) Said declaration of law is broader than the pleadings in the case, in that the same is based upon Sec. 1305, R. S. 1919, whereas appellant's petition pleaded title by virtue of Sec. 1311, R. S. 1919, and therefore, it would not have been proper to have given the declaration of law requested. Nahorski v. Electric Term. Ry. Co., 274 S.W. 1027; Merrett v. Poulter, 96 Mo. 237; Leabo v. Goode, 67 Mo. 126. (b) Said instruction omits an essential element of adverse possession, i. e., that the possession of appellant was exclusive. 2 C. J. 118; Stone v. Perkins, 217 Mo. 586; Hendricks v. Musgrove, 183 Mo. 300; Brown v. Hartford, 173 Mo. 183; Kirton v. Bull, 168 Mo. 622; Brown v. Chicago Ry. Co., 101 Mo. 484; Robert v. Walsh, 19 Mo. 452. (c) Where there is no evidence upon which to base a declaration of law a refusal of same is proper. 2 C. J. 283; Stone v. Perkins, 217 Mo. 586; Harrison v. Cachlin, 27 Mo. 26. (d) There was no evidence in the case upon which said declaration of law could be based, as the only evidence in the case consisted of payment of taxes, fencing for short intervals, cutting of timber and permitting claimant's cattle to graze upon the lands in question. Chilton v. Comaminani, 221 Mo. 685; Lumber Co. v. McCabe, 220 Mo. 154; Crane v. Peterman, 200 Mo. 295; Weir v. Lumber Co., 186 Mo. 388; Faris v. Jones, 122 Mo. 131; Lead Company v. White, 106 Mo.App. 222. (3) The judgment is for the right party. (a) What is generally known as the thirty-year Statute of Limitations does not apply in actions where claimants claim title against a county, even as to swamp lands. Truitt v. Bender, 193 S.W. 893. (b) Appellant failed to establish title under the ten-year Statute of Limitations. Chilton v. Comaminani, 221 Mo. 685; Lumber Co. v. McCabe, 220 Mo. 154; Crane v. Peterman, 200 Mo. 295; Weir v. Lumber Co., 186 Mo. 388; Faris v. Jones, 122 Mo. 131.

OPINION

Graves, P. J.

Action to determine title to a small tract of land in Dunklin County. Plaintiff pleads her title, but it is not a record title. Her title is thus outlined in the petition:

"Plaintiff further states that for more than ten years last past prior to the institution of this action, she has been in the open, notorious, exclusive, continuous, adverse and hostile possession under color of title record, claiming to be the owner and is the owner of the following described premises lying and being situated in the County of Dunklin and State of Missouri and described as follows, to-wit:

"The southwest fractional part of the southwest fractional Section 34 in Township 17 north, of Range 9 east of the 5th principal meridian line."

Plaintiff further states that the title of the above described lands emanated from the Government of the United States of America by virtue of the provisions of the Act of Congress of September 28, 1850, and entitled, "an act to enable the state of Arkansas and other states to reclaim swamp lands within their territory limits;" that the title of and to the above described lands was conveyed to the County of Dunklin and became the absolute property of the said County of Dunklin by an act of the General Assembly, passed and approved March 10, 1869, and other acts.

"Plaintiff further states that for more than thirty-one consecutive years she has paid all taxes, both state and county, levied and assessed upon the above described lands and that neither of the defendants or those under whom the defendants claim have paid any taxes for more than thirty-one consecutive years upon the above described lands."

Such is the basis of her pleaded title. The plaintiff then avers that defendants claimed some title by and through a patent issued by the County of Dunklin, which claim was adverse to plaintiff. Then plaintiff says the county was estopped from claiming any title, because:

"The County of Dunklin by and through its duly elected, qualified and acting officials, with full knowledge of the plaintiff's title in and to the above described lands, has levied, assessed and collected of and from the plaintiff and plaintiff's grantors, taxes upon the above described lands for more than thirty-one consecutive years, thereby and by reason thereof said grantor was estopped from claiming or asserting any title to the above described lands at the time of the execution of the patent therefor to the said defendants as aforesaid.

"Plaintiff further states that with full knowledge of plaintiff's title, the defendants' grantor, the County of Dunklin, has remained quiet, never asserting any title or claim to the said lands or any part thereof, prior to the execution of the patent therefor to defendants, and has permitted plaintiff to make valuable and lasting improvements upon said property and has therefore been guilty of gross laches, whereby said County of Dunklin should be and was estopped from asserting any claim at the time of the execution of said patent to the defendants, as aforesaid, and had no title to convey to any of the said defendants for any of the said lands."

By the answer the defendant, W. D. Lasswell first avers that there was no W. D. Lasswell Lumber Co. This is followed by a denial of "each and every allegation, averment, matter, fact and thing in plaintiff's petition contained." This is followed by express denials and averment of defendant's ownership, in this language:

"And expressly denies that the plaintiff has been in the possession of the land described in plaintiff's petition for more than ten years or for more than thirty-one years, and denies that she has any title or claim of title to the land described in the plaintiff's petition, but it is expressly admitted that the defendant, W. D. Lasswell, does claim some right, title and interest in the land as described in plaintiff's petition, that right being all the fee-simple title to said land.

"Wherefore, defendant having fully answered prays to be discharged with his costs."

This defendant then further answers thus:

"Defendant for another and further answer states that he is the owner in fee simple of the land described in plaintiff's petition, said land being located in Dunklin County, Missouri, to-wit:

"The southwest fractional part of the southwest fractional section of Section 34, Township 17, Range 9 east of the principal...