Lewis v. Barnes
| Decision Date | 01 December 1917 |
| Docket Number | No. 18293.,18293. |
| Citation | 199 S.W. 212,272 Mo. 377 |
| Parties | LEWIS v. BARNES. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, New Madrid County; Frank Kelly, Judge.
Suit by Wilbur Lewis against Seth S. Barnes. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
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 10 and 24 years, and also under what is known popularly as the 30-year statute of limitation contained in section 1884 of the Revised Statutes of 1909. It also denounces the plaintiff's title as having emanated by deed from one Drusilla Burner, formerly Drusilla Lewis, widow of Stephen Lewis, and charges that in 1873 she abandoned the land, and had ever since stood by and seen him making valuable and lasting improvements thereon, and expending large sums of money to increase its value, by reason of all of which it has become greatly enhanced in value. It also deraigns paper title through the administrator of Stephen Lewis, as charged in the petition.
No reply was filed, although the parties went to trial on the issues without objection on that ground.
At the trial the parties agreed that one Susanna Wright was the common source of title through a deed to Stephen Lewis, dated December 6, 1871, and duly recorded in New Madrid county. This deed recites a consideration of $600. The date of its record is questioned. It was made in Indiana, where the grantor and grantee lived at the time, the latter with his wife, Drusilla to whom he had been married in September of the previous year. They were, as respondent stated in his brief, "extremely poor." Upon receiving their deed they packed their little belongings, consisting of some bedding and other household articles, and came to New Madrid, and in the afternoon of the same day of their arrival took the articles they had brought to the little old log cabin on the land in question, about 40 acres of which was cleared, where they lived together until the death of Mr. Lewis on April 5, 1873. In addition to their household goods they brought with them to New Madrid county a little girl, a child of Lewis by a former marriage, and while they were living in the cabin the plaintiff Wilber was born. That this place was the homestead of the Lewises under the provisions of the Homestead Law of 1865 (G. S. 1865, p. 449, § 1) is not questioned.
The time of the filing for record of the deed from Wright to Lewis is shown in evidence as follows. On its back is the following:
"Deposited for Record this 6th day of January A. D. 1872, John A. Mott, Recorder, Recorded in Deed Book 23, Page 416."
This indorsement was written by William W. Waters, who, at that date, had charge of the office, although he had not been appointed a deputy. After the deed is the following certificate:
At the date of this certificate Mr. Waters had received his appointment as deputy. In the "abstract and index of deeds" made under the provisions of section 1 of the act of March 25, 1870, the entry in the "front part" arranged in proper columns was as follows:
"Grantor Wright, S. & F. O., grantee Stephen Lewis, date of Instrument December 6, 1871, date of filing January 6, 1872, nature of instrument deed, book and page, book 23, p. 415, description southwest quarter 25-22-13."
The "back part" or grantee's index shows precisely the same entries.
After the death of Mr. Lewis, Mrs. Lewis lived on the place with the children until December, 1873, when she returned to Indiana, taking the youngest child with her and leaving the little girl in New Madrid county with Mr. Augustine, a neighbor. She afterwards died. After remaining a while at her old home she went to Illinois, where a married sister resided, and where on August 29, 1875, she married one John Burner, with whom she lived in that state as his wife until his death in September, 1911. On June 8th following Mrs. Burner conveyed the land to her son Wilber Lewis, who brought this suit.
After his arrival in New Madrid county and on January 20 1872, Mr. Lewis purchased a horse from John W. Marr for $110, giving his note of that date for the purchase price, and executing to Marr a mortgage to secure its payment, which purported to convey the west half of the southwest quarter of section 20 in township 22 north, of range 13 east, in New Madrid county. He had no other land in that county at the time than the tract in suit in section 25. This mortgage was recorded on January 26, 1872. It was not signed by Mrs. Lewis, and she testifies that she knew nothing about it. At some time in December, 1873, one J. C. Stewart was appointed administrator of the estate of Stephen Lewis, deceased. His bond was filed on the thirteenth day of that month. He inventoried this land, and on the inventory made the following note:
"John W. Marr has a mortgage on this land for $110, made January 20, 1872, also mortgage to Francis O. and Susanna Wright."
No such mortgage as that last described appears in the record. Stewart made his settlement in May, 1880, in which he charged and credited amounts received and disbursed as follows:
Charges to personal property as shown
by the inventory and appraisement.......$ 55 50
To proceeds of sale of land...............100 00
Credits by amount of property delivered
to the widow.......................... 12 50
Personal property sold under execution 43 00
By cost of administration............. 49 25
Cost paid John W. Marr on his judgment. 50 75
As a voucher he filed the following receipt:
Mrs. Lewis testified that she never knew of the appointment of an administrator, did not know Mr. Levine and never signed any receipt; that she could not write nor read written matter, although she could read a little print; that she had never gone by the name of Levine nor given that as her name. On August 24, 1874, Mr. Marr brought suit in the New Madrid circuit court against Lewis' administrator alone to recover on the note for $110, and to foreclose the mortgage given on the land described as in section 20 to secure it. There is nothing in the petition to indicate that it had anything to do with the land in question. Judgment was rendered for the amount of the note and this judgment is relied upon to sustain the administrator's sale pleaded by both parties. It was allowed by the probate court and assigned to the fifth class. No attempt is made to rely upon the judgment of foreclosure which was evidently void because of the absence from the proceeding of the parties in interest, and on its face it does purport to foreclose the equity of redemption of the owners.
Mrs. Burner testified that when she left New Madrid county in December, 1873, she paid all the taxes then charged against the land, leaving it clear. That she left a tenant on it, and also left Mr. Hatcher, a lawyer, in charge of it, who told her it was clear, and promised to look after it and pay the taxes out of the rent. That she supposed it was going all right, until Mr. Hatcher wrote to her that he was about to institute suit against the land. That she wrote to him but never received any further communication. That hearing nothing about it she supposed the land was gone. Mr. Hatcher sent her $18, which he wrote he received from the tenant. The land was rented for $40 per year. When she left she told Mr. Hatcher she was going back to her people and wanted him to look after it, which he undertook to do.
The defendant's counsel, on opening his case, made the following statement:
The judgment of the court was for the defendant. The theory upon which it was founded is stated in the following instruction given by the court, after having been modified against plaintiff's objection:
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