Lewis v. Barnes
| Decision Date | 01 December 1917 |
| Parties | WILBER LEWIS, Appellant, v. SETH S. BARNES |
| Court | Missouri Supreme Court |
Appeal from New Madrid Circuit Court. -- Hon. Frank Kelly, Judge.
Reversed and remanded.
James R. Brewer and Wilson Cramer for appellant.
(1) It is established by the undisputed evidence that the land in controversy was occupied and used by Stephen Lewis and family as a homestead at the time of his death on April 5, 1873, and did not exceed in value the sum of $ 1500. (2) The deed by which he acquired the land from Wright is dated December 6 1871, and was deposited for record on January 6, 1872, as shown by the file marks thereon. These file marks are corroborated by the entries in both parts of the "Abstract and Index of Deeds" which state that the deed was filed for record January 6, 1872. The statement in the certificate on the back of the deed that it was filed for record July 19, 1872, is evidently a clerical error. That was the date of recording, as the certificate shows. (3) The "Abstract and Index of Deeds" was a public record. The statute required the recorder to keep in his office a well bound book to be known as the "Abstract and Index of Deeds," containing a direct and inverted index, etc. 2 Wag. Stats., p. 1140, sec. 11, 14, 18. (4) The attending circumstances raise the presumption that January 6, 1872, is the correct date of the filing of the deed for record. Balance v. Gordon, 247 Mo. 126. (5) Under the statute of 1865 a homestead was not subject to sale under attachment or execution against the head of the family unless the debt accrued before the homestead deed was filed in the recorder's office for record. G. S. 1865, chap 111, secs. 1, 7; 1 Wagner's Statute 1872, pp. 697 and 698, secs. 1, 7. The homestead on the death of the husband passed to and vested in fee in his widow. G. S. 1865, chap. 111, sec. 5; 1 Wagner's Stat. 1872, p. 698, sec. 5; Skouten v. Wood, 57 Mo. 389; Gregg v. Gregg, 65 Mo. 343; Rogers v. Marsh, 73 Mo. 68; Grooms v. Morrison, 249 Mo. 551; Armor v. Lewis, 252 Mo. 577. (7) On the death of Stephen Lewis his homestead vested in fee simple in his widow, Drusilla Lewis, subject to the joint enjoyment of his two minor children until they reached their majority, without being liable for the payment of his debts, "unless legally charged therein in his lifetime." G. S. 1865, chap. 111, sec. 5; 2 Wag. Stat. 1872, p. 698, sec. 5; Armor v. Lewis, 252 Mo. 579.
Oliver & Oliver and E. F. Sharp for respondent.
(1) The sale by the administrator of the estate of Stephen Lewis to John Marr of the land in question passed the legal title to Marr. (a) The debt to Marr was created before the acquisition of the homestead by Lewis. The deed from the Wrights to Lewis was not filed for record until July 19, 1872, while the Marr debt was made January 20, 1872, a full six months before. The homestead dates from the filing of the deed for record. Sec. 7, p. 698, 1 Wag. Stat. 1872; Barter v. Walker, 165 Mo. 30; Shudder v. Girvins, 63 Mo. 394; Tennett v. Pruit, 94 Mo. 145; Payne v. Findley, 165 Mo. 191; Acreback v. Meyer, 165 Mo. 189; Rodgers v. Marsh, 73 Mo. 69; Anthony v. Rice, 110 Mo. 229; Keeline v. Seely, 257 Mo. 514; Sperry v. Cook, 247 Mo. 132. (b) The only competent evidence introduced at the seal of the recorder and the certificate by the recorder ord is the certificate on the deed under the hand and trial as to the date the Wright deed was filed for recmade at the foot of the record as required by law; both of these show the deed was filed for record on July 19, 1872. The incompetency of the notation on the front part of the deed was exactly the question before the court in the following case and decided adversely to appellant's contention: Marble Co. v. Ragsdale, 74 Mo.App. 42; Sec. 13 p. 1141, 2 Wag. Stat. 1872. (c) The "Abstract and Index" is no part of the record, and defendant's objection to its introduction should have been sustained. Bishop v. Snyder, 46 Mo. 479. (d) If, as claimed by the appellant, the record of the deed is wrong, then the recorder is liable to him (appellant) for the alleged error. The respondent is protected by the record as he finds it. Terrell v. Andrew County, 44 Mo. 309; White v. Himmelberger, 240 Mo. 23. Sec. 20, p. 1141, 2 Wag. Stat. 1872, does not require recorder to make any record until fee is paid. No fee paid is shown on back of photograph copy of deed. (2) The debt to Marr not only antedated the filing of the deed from Wright to Lewis but the land was legally charged during the lifetime of Stephen Lewis by the execution of the mortgage, January 20, 1872, to Marr. Lewis was a poor man. His wife states positively that he owned no other land in New Madrid County; Lewis told Toney he had mortgaged this land to pay Marr for the horse; the records of the county show that he never owned any land in section 20 nor any other land in the county and his (Lewis') administrator in his inventory lists this land as having been incumbered with the Marr mortgage in the lifetime of Lewis, and in the mortgage itself all the description is correct except the number of the section, in writing which the scrivener left out a part of the word "twenty-five," writing only the "twenty." The conclusion is irresistible this was a mere clerical error. (a) Under the law as it then was Lewis had a right to mortgage this land, even conceding it was his homestead, without his wife joining therein. Gladding v. Sydum, 172 Mo. 318. The Marr mortgage was therefore legally charged thereon by Lewis during his life time. (b) This mortgage given by Lewis to Marr was such a lien as could be enforced against this land, notwithstanding the error in the scrivener in failing to write the whole of the word "twenty-five" in describing the section; and being a good and enforcible lien as against Lewis it is equally good against his privies who took with actual knowledge of Marr's right. Black's Law Dictionary, p. 940, title Privies. (3) The pretended claim of the plaintiff is barred by the ten-year Statute of Limitations. 1 Am. & Eng. Ency. Law (2 Ed.), p. 789. The adverse possession of an administrator may be added to that of a defendant claiming under him. Stotts v. Hanley, 85 Cal. 155. (4) The pretended claim of the plaintiff is barred by the provisions of section 1884, commonly called the thirty-year Statute of Limitations for the non-payment of taxes. Collins v. Pease, 146 Mo. 135; Haarstick v. Gabriel, 200 Mo. 243; Fairbanks v. Long, 91 Mo. 633; Campbell v. Green, 209 Mo. 212; DeHatre v. Edmonds, 200 Mo. 246; Jodd v. Mehitens, 171 S.W. 322; Abels v. Pitman, 168 S.W. 1184; Crain v. Petreman, 200 Mo. 295. The statute began to run on the failure to pay the taxes for the years 1872, 1873 and 1874, and having started to run the marriage of Mrs. Lewis to Burner in 1875 did not toll the running of the statute. The carving out of the two estates in the land occurred after the statute had commenced to run, and as, after her marriage, neither she nor her husband paid the taxes, it continued to run, as to the whole estate. (5) The pretended claim of the plaintiff is barred by laches. Her abandonment of this land was while yet a feme sole, as was the notice to her by attorney Hatcher that they were "going to enter suit against this land." Allen v. Moore, 30 Colo. 307; Yates v. Heard, 8 Colo. 343; Kennedy v. Green, 3 Myl. & K. 719; McQuindley v. Ware, 20 Wall. 14; Speek v. Reggen, 40 Mo. 405; Major v. Buckley, 51 Mo. 231. A mere failure to give notice of a right where another without knowledge of the fact is investing his money and where it might fairly be concluded that he would not have done so if informed of the fact will generally preclude a subsequent setting up of the right thus concluded. Fletcher v. Holmes, 25 Ind. 458. "A person who stands by and permits another to deal with his property as his own will not be permitted, after the transaction is closed without objection from him, to question it." Peters v. Campbell, 74 Mich. 498; Rice v. Bunce, 49 Mo. 231. Conduct such as the testimony shows in this plaintiff's mother (from whom he deraigns title) has been often held in this State to be a complete bar to recovery. Shelton v. Horrell, 232 Mo. 372; Toler v. Edwards, 249 Mo. 167; Terry v. Grieves, 167 S.W. 569; Cochrell v. Hutchinson, 135 Mo. 75; Rutter v. Caruthers, 223 Mo. 640; Stevenson v. Smith, 189 Mo. 446; Landrum v. Bank, 63 Mo. 56; Bucher v. Hohl, 199 Mo. 330; Kline v. Vogel, 90 Mo. 247; Hudson v. Cahoon, 193 Mo. 562; Moreman v. Tolbert, 55 Mo. 392; Loomis v. Railroad, 165 Mo. 495; Kroenung v. Goehri, 112 Mo. 648; Guffy v. O'Reilly, 88 Mo. 426; Troll v. St. Louis, 168 S.W. 176.
OPINION
In Banc.
This suit was instituted in the New Madrid Circuit Court on June 18, 1912. The petition although a single count contains the usual allegations and prayer for judgment to quiet the title to the west half of the southwest quarter of section 25, township 22 north, of range 13 east, in said county, and also in ejectment for the same land, of which it states that the plaintiff is the owner and that the defendant claims title to the same land by deed from one Stewart, as administrator of the estate of Stephen Lewis, to one John W. Marr, dated August 21, 1876, and duly recorded, which deed he says conveyed no title. The ouster in ejectment was alleged as of June 11, 1912.
The answer claims ownership of the land, denies generally the allegations of the petition not expressly admitted, pleads title by adverse possession for both ten and twenty-four years and also under what is known...
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