Kries v. Holladay-Klotz Land & Lumber Co.
| Decision Date | 11 December 1906 |
| Parties | KRIES, Respondent, v. HOLLADAY-KLOTZ LAND & LUMBER COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Wm. H. Kinsey Judge.
AFFIRMED.
STATEMENT.--This action was instituted July 10, 1904. It is in the nature of an action of trespass to recover the value of timber alleged to have been cut and removed from plaintiff's land by the defendant company. The land on which the timber stood is in Wayne county, Missouri, and is the south half of the northeast quarter and the north half of the southeast quarter of section 22, township 29, range 26. The answer was a general denial. The jury returned a verdict in plaintiff's favor for $ 1,369, and judgment having been entered for that sum, the present appeal was prosecuted by the defendant. The error assigned is the refusal of the court to direct a verdict in defendant's favor. In support of this assignment, defendant's counsel contend there is no proof of possession, actual or constructive, in plaintiff at the time of the alleged trespass. Until the land was denuded by the defendant company, it was covered by a growth of pine timber. Plaintiff purchased it February 13, 1891, taking a warranty deed from Fred H. Brunning and wife. Plaintiff resides in St. Louis and has resided there, as we understand since the time of her purchase. In May 1895, her husband went to Wayne county in her behalf, and had the line of the land run by the county surveyor and the corners established. The timber on the surrounding lands was cut away, but plaintiff's timber was respected until 1899, when it was cut and removed by the defendant company without her knowledge. Plaintiff paid taxes on the land from the time she purchased it and it was assessed in her name. There is testimony to show the chief officer of the defendant company knew the land belonged to plaintiff; or, at least, that it did not belong to the company. A witness who had been in defendant's service, testified that on one occasion, in giving directions where to cut timber, its chief officer said the company did not own the land from which the timber in controversy was taken, and for the witness to cut no timber on it. But, as said, the defendant subsequently did cut and remove the timber. These facts are proved by testimony for the plaintiff; the testimony for the defendant not going to show any title to the land or right to take the timber, but that, in point of fact, defendant did not take it; a defense which the jury rejected. In support of her title to the land plaintiff introduced a copy of a patent from the United States to Robert Kirkham, dated September 10 1859, and conveying the land in controversy, a deed from Jas D. Wingerd and wife to Fred Brunning and wife, dated January 3, 1888, and a deed from Fred Brunning and wife to plaintiff, dated February 13, 1891, and recorded on February 17th. Plaintiff and her husband testified they had no other deeds. It was proved the courthouse wherein the court and deed records of Wayne county were kept was destroyed by fire in December, 1892. Prior thereto James B. McGhee had been circuit clerk and ex-officio recorder of deeds of Wayne county, and while serving as such on February 25, 1891, had made for plaintiff an abstract of title to the land in controversy as the title appeared from the records and deeds in his office. He swore he made it from an examination of the indexes to the deed records, which referred him to the pages of the record where the different deeds were to be found and from an examination of the full records of the deeds themselves; and that the abstract he made was a true and correct abstract as shown by those records. Though signed by him officially, it is not a document required to be made by law and does not import accuracy. The abstract was introduced in connection with McGee's testimony and is as follows:
ABSTRACT OF TITLE--To Lands below described situated in the
County of ___ and State of ___
GRANTOR
GRANTEE
Kind
Date of Instr'mt.
Instru.
D
Month
Year
United States
Robt. H. Kirkham
Patent
As shown by
official plat
of Wayne
county, Mo.
1891
ABSTRACT OF TITLE--To Lands below described situated in the
County of ___ and State of ___
GRANTOR
Date of Acknol.
Date of Filing.
Pge
United States
As shown by official plat of Wayne county, Mo.
Quantity
Acres
United States
Robt. H. Kirkham
$ 640.00
22
29
160
Samuel Ford
$ 6.25
Same land des cribed above.
Addie Reed & husband
In RE val
$ 2,000.00
Nelson S. Kaw [single]
$ 320.00
Calvin Moore & wife
Mas. D. Wingerd & wife
Fred H. Bruning & wife
$ 100.00 & ex
of prop
The admission of the above abstract of title was objected to by counsel and an exception saved to the court's ruling. Such in substance, are the material facts in the case.
Judgment affirmed.
Gamble, Petherbridge & Taylor for appellant.
This is an action of trespass for the cutting of timber and before such an action can be maintained, a plaintiff must show either that he had actual possession of the land at the time of the trespass (in which event he need not show actual title in himself), or if the land be in the actual possession of no one then he must show that he had actual title to the land, which combination of nonactual possession by anyone and actual title in plaintiff makes out what the courts term constructive possession, which sort of possession is sufficient to maintain trespass. Brown v. Hetzell, 87 Mo. 564; Land & Lumber Co. v. Markam, 96 Mo.App. 51; Yankee v. Thompson, 51 Mo. 234; Gregg v. Jesberg, 113 Mo. 34; Atkinson v. Improvement Company, 125 Mo. 565.
Daniel Dillon and O. L. Munger for respondent.
(1) There could be no controversy under the evidence, that the abstract of title made by Mr. McGhee from the records before they were destroyed, and read in evidence by plaintiff at the trial, was the best evidence attainable. The first statute which required it went into effect March 25, 1870 (see Laws of 1870, par. 111). It has ever since been in the General Statutes, and is now section 9067, R. S. 1899. The Supreme Court have expressly decided that this index and abstract book is competent evidence when the records have been destroyed. Smith v. Lindsay, 89 Mo. 80. Greenleaf in his work on evidence (16th Ed.), vol. 1, p. 698, sec. 563q, in speaking of the different kinds of secondary evidence, mentions abstracts of deeds as a high character of secondary evidence. (2) There are many decisions holding that a tax deed under our statutes makes a prima facie case of title in the grantee named in the deed. We cite only two of the later cases. Cummings v. Brown, 181 Mo. 715; Stevenson v. Black, 168 Mo. 558. (3) After lapse of time, and especially after records and papers have been destroyed, the law presumes that all things were done regularly and in the usual course, and as required by law. 1 Greenleaf, Evidence (16 Ed.), p. 115, sec. 20; 4 Wigmore on Evidence, p. 3582, sec. 2534; McCallister v. Ross, 155 Mo. 87; Miller v. Dunn, 62 Mo. 225; Blodgett v. Perry, 97 Mo. 272; Mitchener v. Holmes, 117 Mo. 211; St. Joseph to use of Gibson v. Farrel, 106 Mo. 441; Hammond v. Gordon, 93 Mo. 225; McClanahan v. West, 100 Mo. 323; Price v. Springfield R. E. Assn., 101 Mo. 118; Brinley v. Forsythe, 69 Mo.App. 184; Long v. Mine & Smelting Co., 68 Mo. 430; Brown v. Oldmam, 123 Mo. 631; Williams v. Mitchell, 112 Mo. 310; State v. Lord, 118 Mo. 5; State v. David, 131 Mo. 393; State ex rel. v. Hoyt, 12 Mo. 355; Manning v. Coal Co., 181 Mo. 372: Clark v. Mead, 102 Cal. 516; Green v. Barker, 47 Neb. 947.
OPINIONGOODE, J. (after stating the facts.)
1.--Counsel for defendant say there is no evidence for the jury tending to show actual possession of the land in plaintiff; a point we find it unnecessary to decide. Regarding the abstract of title, their position is that it was competent evidence in connection with McGhee's testimony in respect of all conveyances shown by it, except the tax deed purporting to convey the land for taxes to Samuel Rousin, dated April 6, 1882. That deed appears to have been made while the title...
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