Long v. Lackawanna Coal & Iron Co.
| Decision Date | 31 March 1911 |
| Parties | ROBERT J. LONG v. LACKAWANNA COAL & IRON COMPANY, ISAAC WRIGHT and ETTA O. DESHLER, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Hermann Brumback, Judge.
Affirmed.
Johnson & Lucas for appellants.
(1) (a) The evidence was insufficient to show that plaintiff had such a title as he had agreed to furnish, and insufficient to show that he had any title by the Statute of Limitations. Weller v. Wagner, 181 Mo. 161; Crowl v. Crowl, 195 Mo. 347; Heckescher v. Cooper, 203 Mo. 293; McCune v. Goodwillie, 204 Mo. 306; Baker v Thompson, 214 Mo. 514; Stone v. Perkins, 217 Mo. 586. (b) The admission that plaintiff was the "owner" of the land, contained in the separate answer of the Lackawanna Coal & Iron Company, did not, when taken in connection with the other allegations of that answer, and the answers of the other defendants, make it unnecessary for plaintiff to prove title. 17 Am. and Eng Ency. Law (1 Ed.), 299; Coombs v. People, 198 Ill 586. (2) A conveyance of real estate, in consideration of one dollar and other valuable considerations, made by one who has purchased the same by written contract, is effective to pass to his grantee all his interest in the contract and the subject-matter thereof. R. S. 1899, sec. 900; Chew v. Keller, 171 Mo. 225; Strong v. Whybark, 204 Mo. 346; Weissenfels v. Cable, 208 Mo. 534. (3) A party who has entered into written contract to remedy the defects in his record title to real estate, and who in pursuance of it obtains a decree of court, cannot, because the decree does not become effective for three years from its date, change his position, and declare that his title is good by the Statute of Limitations; act upon the declaration, and maintain a suit to cancel the contract, on the ground that he has complied with it. Guffey v. O'Reiley, 88 Mo. 429; Rozier v. Graham, 146 Mo. 361; State ex rel. v. Branch, 151 Mo. 639; Cadematori v. Gauger, 160 Mo. 367; Layson v. Cooper, 174 Mo. 221; Tower v. Compton Co., 192 Mo. 393; St. Louis v. Wright Co., 202 Mo. 465. (4) A decree obtained on service by publication does not become effective to pass title or quiet title, until three years from its date; and if married women be defendants the effect of the decree may be longer postponed. R. S. 1899, sec. 779; Lindell Co. v. Lindell, 142 Mo. 85. (5) The effect of the decree was to forfeit the $ 2000 paid as earnest money -- and to find that plaintiff had at the time of entering into the contracts a title such as he admitted by his last contract, as well as by his conduct, that he did not have. The assertion of a title by adverse possession is an admission that the party relying on it has not the legal title. Probst v. Presbyterian, 129 U.S. 182. (b) Equity abhors forfeitures and will not enforce them directly or indirectly. Tetley v. McMurry, 201 Mo. 394. (6) Plaintiff was not entitled to maintain this suit, when a suit was already pending in the same court, which involved the same issues, and in which all issues raised by plaintiff could have been, and will be determined. Conbrough v. Adams, 70 Cal. 379; Wallace v. Robinson, 52 N.H. 286.
Peak & Strother for respondent.
(1) The petition alleged that at all times mentioned in it, plaintiff was the "owner in fee simple of" the land in question. The answer of defendant, the Lackawanna Coal & Iron Company, "admits that prior to May 24, 1906, plaintiff was the owner of the land described in the petition and that on that day he entered into a contract to sell the same to one E. O. Deshler, as set forth in said petition." On the record, therefore, plaintiff's title "in fee simple" stands admitted by said defendant. (2) The answer of Deshler, and of the Lackawanna Coal & Iron Company each "denies each and every allegation in said petition contained, except such as are hereinafter specifically admitted." This is no denial at all and raises no issue on the record. Dezell v. Fidelity Co., 176 Mo. 279; Atterbury v. Hopkins, 122 Mo.App. 172. (3) There was no evidence that John C. Long or his heirs ever had any title to, interest in, or possession of the land in question, or any part of it. (4) Even had there been any such evidence as to John C. Long, or his heirs, he did not die until 1840, and the evidence shows a continuous, adverse possession, beginning in 1835, and the statute having begun to run against John C. Long, has never ceased running. Franklin v. Cunningham, 187 Mo. 184. (5) As to one-half of the land, plaintiff showed an unbroken record title from the United States. (6) As to the whole land, plaintiff showed a continuous, exclusive, open, notorious, adverse and hostile possession, claiming title under duly recorded warranty deeds purporting to convey the title, and payment of all taxes, for over seventy years. This was sufficient. Laws 1874, p. 119; R. S. 1899, secs. 653, 4268, 6269; Scannell v. Soda Fountain Co., 161 Mo. 606; DeHatre v. Edmonds, 200 Mo. 246. (7) The contract was not to furnish a "perfect record title," as contended by appellants. It was to furnish "a complete abstract of title . . . from the United States Government to date," and "a good title in fee to said property;" and the supplemental contract was "to bring suit to quiet the title . . . as required in the opinion of Johnson & Lucas, attorneys for the buyer." This requirement was that "a suit should be brought to quiet the title by the Statute of Limitations." Plaintiff fully complied with both contracts in every particular, and was entitled to retain the deposit money. Greffet v. Willman, 114 Mo. 118; Mitchener v. Holmes, 117 Mo. 185; Crews v. Garneau, 14 Mo.App. 505. (8) The statutes in regard to petitions for review (R. S. 1899, sec. 773-784), have no application to a suit under R. S. 1899, sec. 653, to perfect title by limitation. This latter statute is complete within itself, provides for a special case, specifies the manner of process and service thereof, and provides that "when such service shall be had, judgment and decree shall be rendered the same as though personal service had been had." Swan v. Railroad, 38 Mo.App. 588. (9) Said section 653 is a valid exercise of legislative power. Dillon v. Heller, 39 Kas. 599; Arndt v. Grigs, 134 U.S. 322. (10) The plaintiff at no time took inconsistent positions with reference to his title. He furnished a "complete abstract of title." He showed a "good title in fee." He brought a "suit to quiet title, by the Statute of Limitations, as required by the opinion of Johnson & Lucas." On the trial of the suit at bar he showed a good title in fee by record to one-half of the land and by limitation as to the other half. In addition, the defendants themselves showed the proceedings in the suit to perfect title and admitted the regularity and legality of them. Moreover, there was no plea of estoppel. Keeney v. McVoy, 206 Mo. 56. (11) The pendency of the suit by the defendant, the Lackawanna Coal & Iron Company, against plaintiff, was no bar or cause of abatement of this suit. Rodney v. Gibbs, 184 Mo. 10. (12) Even had there been a failure on plaintiff's part to furnish such a title as was required by the contract, the counterclaim of defendant, the Lackawanna Coal & Iron Company, seeking to recover the $ 2000 deposit money, is inconsistent with its alleged suit for specific performance, and a waiver of such suit. Ryan v. Dunlap, 111 Mo. 610.
OPINION
This is a suit in equity, brought on December 19, 1906, in the Jackson Circuit Court, to clear away a cloud on plaintiff's title to a part of the southwest quarter of section 36, township 50, range 33, in Jackson county -- 22 acres, more or less, described with particularity in the bill.
On May 24, 1906, plaintiff contracted in writing with defendant, Etta O. Deshler, she signing as "E. O. Deshler," thereby bargaining the land to her for $ 60,000 -- $ 2000 paid down. The contract, being unacknowledged, was not entitled to record. At a certain time thereafter she conveyed by deed to her corporate codefendant, the Iron Company, in which conveyance there was a narration referring to said contract, which deed was presently spread of record. The object of the suit is to cancel this deed and its record as a cloud upon the plaintiff's title.
From a decree canceling the deed, removing the cloud cast by its record and enjoining defendants severally and all persons claiming under them from setting up or relying upon any claim of title by virtue of said deed or contract, and finding against the right of the Iron Company to a return of said earnest money, and, on such finding, decreeing that plaintiff go hence without day, discharged of such claim, defendants, on due steps, come up by appeal.
Of the pleadings:
The bill alleges the Iron Company is a Missouri business corporation, located in Kansas City; that plaintiff at the times in hand was and is the owner of the real estate in question (describing it); that on May 24, 1906, plaintiff and defendant Deshler, under the name of "E. O Deshler," entered into a written contract whereby plaintiff sold to her said real estate for the sum of $ 60,000-$ 2000 down; $ 18,000 to be paid upon the delivery of a warranty deed; and $ 40,000 to be paid on or before five years from such delivery, to be evidenced by Deshler's note, secured by a deed of trust on the land, bearing six per cent semi-annual interest, with the privilege of paying $ 5000 or any multiple thereof at any interest-paying period; that plaintiff, within ten days, was to furnish Deshler a complete abstract of title to said real estate, certified by a competent abstracter, from the United States Government to date, accompanied with the usual certificate; if upon examination...
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