Laclede Land & Improvement Co. v. Epright
| Decision Date | 25 May 1915 |
| Citation | 177 S.W. 386,265 Mo. 210 |
| Parties | LACLEDE LAND & IMPROVEMENT COMPANY, Appellant, v. NORA EPRIGHT et al |
| Court | Missouri Supreme Court |
Appeal from Reynolds Circuit Court. -- Hon. E. M. Dearing, Judge.
Affirmed and remanded.
J. B Daniel for appellant.
(1) There was no error in the trial of this case. The judgment was for the right party, and the motion for a new trial should have been overruled. R. S. 1909, sec. 1884; Abeles v. Pillman, 261 Mo. 359; Collins v. Pease, 146 Mo. 135; Rollins v. McIntire, 87 Mo. 496; Campbell v. Greer, 209 Mo. 199. (2) Where there is no conflict in the evidence and the judgment is for the right party under the law, it is not within the discretion of the trial court to grant a new trial. Loftus v. Railway, 220 Mo. 470; Huston v. Railroad, 151 Mo.App. 335.
R. I January and W. F. Gray for respondents.
(1) Trial courts have inherent power to grant a new trial. Multon v. Croskey, 111 Mo.App. 18; State ex rel v. Adams, 84 Mo. 310; Simpson v. Blunt, 42 Mo 544; McCabe v. Lewis, 76 Mo. 301. (2) It is left to the sound discretion of the trial court to grant a new trial on the weight of the evidence. Rodan v. Transit Co., 207 Mo. 392; Farrell v. Transit Co., 103 Mo.App. 454; Loftus v. St. Ry. Co., 220 Mo. 479; McCarty v. Transit Co., 192 Mo. 396; Seger v. Silver, 193 Mo. 407. (3) The appellate court will not interfere with the trial court in granting a new trial upon the ground that the finding of the court was against the weight of the evidence unless upon the undisputed facts in the case no verdict or finding for the party asking for a new trial could ever be allowed to stand. Mining Co. v. Webster, 193 Mo. 351; Fitzjohn v. Transit Co., 183 Mo. 74; Haven v. Railroad, 155 Mo. 216; Bohle v. Mercantile Co., 114 Mo.App. 439. (4) It devolves upon the one appealing from the order granting a new trial to show that the court erred in so doing. Hewitt v. Steele, 118 Mo. 463; Miller v. Car Co., 130 Mo. 523; Baughman v. Fulton, 130 Mo. 559. (5) Possession to defeat recovery of real estate, must be continuous for the full period of ten years. Stone v. Perkins, 217 Mo. 601; Turner v. Hall, 60 Mo. 275. (6) It would be a new and dangerous doctrine to hold that a possession under color of title may be discontinued before the expiration of ten years, and that thereafter the constructive possession of the land would follow the color of title instead of the true title. Turner v. Hall, 60 Mo. 275; Stone v. Perkins, 217 Mo. 601. (7) The thirty-year Statute of Limitation cannot be invoked under the facts in this case for the reason: First, Because the land in litigation was wild, uncultivated timber lands, and no one was ever lawfully in possession of any part thereof until appellant, under its void deed, got one John Barton (a squatter) in 1895 to take a lease on a small piece of land in section 5; second, because the possession of unoccupied wild lands follows the legal title, and hence respondents were, in contemplation of law, in the possession of said premises from 1862, until 1895, when appellant took possession under the lease to Barton, and therefore were in possession within thirty years before this suit was begun. Stone v. Perkins, 217 Mo. 601; Turner v. Hall, 60 Mo. 275; Weir v. Lumber Co., 186 Mo. 397.
Action to determine and quiet title to real estate. The trial court entered a judgment for plaintiff, which, upon motion of defendants, was set aside and a new trial granted. From the order granting such new trial plaintiff appeals.
The contention of plaintiff is that the evidence conclusively shows that it has acquired the title to the land in controversy under what is commonly known as the thirty-year Statute of Limitation (Sec. 1884, R. S. 1909), and that the court erred in granting defendants a new trial.
The land in controversy is the south half of the southwest quarter of section 5, and the north half of the northwest quarter of section 8, township 32, range 1 west, in Reynolds county, Missouri, except six acres which will hereafter be noted.
The defendants are the collateral heirs of one Allen W. Barrackman, who purchased all the land in controversy from the United States in the year 1858, and who was killed during the Civil War (between 1861 and 1865).
Said south half of the southwest quarter of section 5 was sold for delinquent taxes in 1884 and purchased by one White, while the north half of the north west quarter of said section 8 was sold for delinquent taxes in 1885 and purchased by one January. The last-mentioned tract was again sold for taxes in 1890 and purchased by one Jamison. Said White, January and Jamison placed their sheriffs' tax deeds on record in Reynolds county soon after their respective purchases, and plaintiff has acquired by mesne conveyances from said White, January and Jamison whatever title, or color of title, those sheriffs' deeds conveyed.
Plaintiff concedes that all of the above-mentioned tax sales were void, by reason of the fact that Barrackman, whose title they purported to convey, had died long before the suits were brought upon which the said tax sales were based.
Plaintiff's evidence of its "lawful possession" of the lands hereinbefore described, and of the other facts which it contends gave it title under the thirty-year Statute of Limitation, consisted of a lease granted by plaintiff to one John Barton on July 25, 1895, for a small parcel of the tract in section 5, and under which lease said Barton cultivated said small parcel of land for a period of three or four years; also a lease to S. J. Freeman for about five acres of the tract in section 8, dated March 16, 1899, under which lease said Freeman cultivated said five acres in section 8 from March 16, 1899, to sometime in the year 1902.
The lands in dispute are hilly, except for small parcels of tillable land, and chiefly valuable for their timber. Plaintiff employed agents to prevent trespassers upon the timber growing on said lands.
One of the defendants testified that he had never been in the actual possession of the land in dispute, and was of the opinion that none of his codefendants had ever been in actual possession of said property. There was no evidence introduced tending to show that the defendant had not paid any taxes on the land in controversy within thirty years next before the plaintiff entered into possession of such land through the aforesaid tenants, unless it be held that the sheriffs' tax deeds (before-mentioned) themselves tended to prove non-payment of all taxes. Appellant's abstract does not show for what year's taxes the lands in dispute were sold.
Such other facts as may be deemed necessary to make clear the conclusions we have reached will be noted in our opinion.
I. Defendants do not contend that the possession which plaintiff exercised over the lands in controversy through its tenants and agents under the aforesaid leases was insufficient to extend its possession over all the lands in controversy during the period of time those tenants were upon the land. There does not seem to be any good reason for such a contention if it had been made, because section 1882, Revised Statutes 1909, expressly provides that "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."
I know of no reason why plaintiff could not, through its tenants or agents, take the same actual possession of a tract of land which it could have taken through its officers, if those officers were personally present upon the property. Defendants do not seem to dispute the claim that plaintiff performed such acts of ownership over the entire tract as are usually exercised by the owner of that quality of land.
II. However, defendants do contend that the constructive possession which followed their legal title to the land in dispute amounted to the "lawful possession" contemplated by section 1884, Revised Statutes 1909, and that, therefore, respondents were in "lawful possession" of said property within a period of time less than thirty years before plaintiff leased said lands as hereinbefore noted and the thirty-year statute does not bar them.
The contention of defendants that their constructive possession of the lands in dispute under their legal title gave them the "lawful possession" thereof, contemplated by section 1884, Revised Statutes 1909, is untenable. The lawful possession mentioned in said section 1884 clearly means an actual possession obtained in a lawful manner, because the same statute requires a claimant who is out of possession to bring his action under certain conditions within one year to recover such land. This, in my judgment, refers to an action in ejectment, because in 1874 when the thirty-year statute was first enacted (Laws 1874, p. 118) there was no statute in Missouri which authorized suits to quiet title to unoccupied lands. Such lastnamed statute was first enacted in 1897. [Laws 1897, p. 74.] An action in ejectment will not lie against a claimant to land who is not in possession thereof. [Secs. 2385 and 2389, R. S. 1909.]
To sustain their contention that they are not barred by the thirty-year Statute of Limitation defendants cite and rely upon the case of Charles v. Morrow, 99 Mo. 638, 646, 12 S.W. 903, wherein the rule was announced that the thirty-year Statute of Limitation does not apply to a "contest between two legal titles." This contention of defendants is unsound.
The case of Charles v. Morrow, 99 Mo. 638, 12 S.W. 903 (by...
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