Lossing v. Shull

• Decision Date: 06 July 1943
• Docket Number: 38498
• Citation: 173 S.W.2d 1,351 Mo. 342
• Parties: Eva M. Lossing v. Sam Shull, Ruby Shull and Ernest R. Moody, Appellants
• Court: Missouri Supreme Court

173 S.W.2d 1

351 Mo. 342

Eva M. Lossing v. Sam Shull, Ruby Shull and Ernest R. Moody, Appellants

No. 38498

Supreme Court of Missouri

July 6, 1943

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

Von Mayes for appellants.

(1) The first count of plaintiff's petition, being to quiet title, does not allege title by adverse possession, and, as there was no common source of title assumed, agreed upon or proved, and plaintiff having failed to trace her title, if any, back to the government, she could not recover on the first count of her petition. Stewart v. Lead Belt Land Co., 200 Mo. 281, 98 S.W. 767; Bixby v Backues, 346 Mo. 955, 144 S.W.2d 112. (2) Plaintiff must recover upon the strength of her own title and not upon the weakness of the defendants' title. Harrison v Bowers, 200 Mo. 219, 98 S.W. 770; Riley v. O'Kelly, 250 Mo. 647, 157 S.W. 566; Williams v. Sands, 251 Mo. 147, 158 S.W. 47; Nall v. Conover, 223 Mo. 477. (3) The deeds under which plaintiff claims, as well as the partition proceeding, are fatally defective in their descriptions of any land in section 6, township 16, range 13 east, and stand unaided by extrinsic evidence. 18 C. J., sec. 64, p. 182; State v. Nolan, 146 S.W.2d 598; Jones v. Carter, 56 Mo. 403; Campbell v. Johnson, 44 Mo. 247; Dixon v. Finnegan, 182 Mo. 111. (4) The United States patent offered in evidence, due to its fatally defective description of the property intended to be conveyed, passed no title and the government was not divested of its legal title to the property intended to be conveyed, and, therefore, the Statute of Limitations has not run in favor of plaintiff with respect to any of the land described in the petition. Gibson v. Chouteau, 13 Wall. 92; Smith v. McCorkle, 105 Mo. 135; Marshall v. Hill, 246 Mo. 1; Stonum v. Davis, 152 S.W.2d 1067; 22 C. J., sec. 1598, p. 1198. (5) A deed to constitute color of title must sufficiently describe the property. Slicer v. Owens, 241 Mo. 319. (6) Even if she or her ancestors or assignors had a deed giving color of title to the old home place, including the land between it and the river, no sufficient usual acts of ownership over the land between the home place and river were shown, and this was necessary to acquire title by adverse possession even under color of title. Sec. 1006, R. S. 1939. (7) This space of land between the home place and the river was not fenced nor farmed and nothing more than a verbal claim to it was made by plaintiff's parents. This was not sufficient to constitute adverse possession actual or under color of title that could ripen into title. Nye v. Alfter, 127 Mo. 529; Carter v. Hornback, 139 Mo. 238; Pharis v. Jones, 122 Mo. 125; Spurlock v. Dougherty, 81 Mo. 171. (8) Nor can the plaintiff recover on the theory the defendant, Ernest R. Moody, is a trespasser. He has a deed to the property he claims and is in possession of it under color of title, and such a person is not an intruder and cannot be ousted in ejectment by the plaintiff proving a prior possession. McVey v. Carr, 159 Mo. 648. (9) Where a prior possession is shown of land under color of title recovery may be had against a defendant in possession without color of title, but that is not the case here. Hall v. Gallemore, 138 Mo. 638; White v. Keller, 114 Mo. 479; Dale v. Faivre, 43 Mo. 556; Bledsoe v. Simms, 53 Mo. 305; Prior v. Scott, 87 Mo. 303. (10) Title by adverse possession extends only to the boundaries of the land actually occupied and would not extend to accretions already formed unless actually occupied during the same period of time, or held under color of title as provided by statute. Acona Realty Co. v. Frazier, 41 S.W.2d 820; Frazer v. Shantz Real Estate & Inv. Co., 343 Mo. 861, 123 S.W.2d 124; Frank v. Goddin, 193 Mo. 390; Campbell v. Laclede Light Co., 84 Mo. 352. (11) Lands are entitled to share in accretions in proportion to the front each bears to the entire river front. Benne v. Miller, 149 Mo. 228. (12) Where the plaintiff has no title he has no right to question the defendant's title, who is in possession under color of title, and, regardless of whether defendant has shown title or not, the court should find for him as though he had title to the property in controversy. Bostwick v. Freeman, 160 S.W.2d 713. (13) A squatter may acquire title by adverse possession. Claim under color of title is not necessary. Smith v. McCorkle, 105 Mo. 135; Mather v. Walsh, 107 Mo. 121. (14) And there was some substance to their claim, while they were wrong as a matter of law. The land they occupied was between the river and the high water mark and whether such land is considered a part of the river bed has been questionable enough to seek the opinion of the Supreme Court of the United States. United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 61 S.Ct. 772. (15) It is not necessary for a grantor to have title to support the claim of a grantee under color of title. Romine v. Haag, 178 S.W. 147; 2 C. J., sec. 329, p. 171, sec. 351, p. 184. (16) Ejectment is a possessory action at law and must be based upon a legal title, either proved or presumed. Thompson v. Lyon, 33 Mo. 219; Nall v. Parks, 173 Mo. 616; Martin v. Kitchen, 195 Mo. 477. (17) Where there is a patent ambiguity in the description in a deed the deed is void, but, if the ambiguity is latent, the ambiguity may be removed by parol evidence. Charles v. Patch, 87 Mo. 450; Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061; Worthington Drainage Dist. v. Davis, 151 S.W.2d 469.

Ward & Reeves for respondent.

(1) In a law case tried before court without jury, the court's findings have same binding effect on appellate court as a jury verdict. The trial court was the sole judge of the credibility of the witnesses and the weight and value of their testimony. However, in this case, the defendants' evidence as to their claim of adverse possession was greatly outweighed by plaintiff's evidence. Indian Creek Land Co. v. Bradford, 82 S.W.2d 589; St. Louis-S. F. Ry. Co. v. King, 329 Mo. 1203, 50 S.W.2d 95; Thomas v. Craighead, 332 Mo. 211, 58 S.W.2d 281; Hayti Development Co. v. Clayton, 281 Mo. 221, 219 S.W. 601; Mathis v. Melton, 293 Mo. 134, 238 S.W. 806; Abrams v. Unknown Heirs, 317 Mo. 216, 295 S.W. 83. (2) Plaintiff's record title goes back to December 14, 1847. Her grandmother got title by deed in 1877. The old home place stood on this land until about forty years ago. Plaintiff and her predecessors in title have been in possession since 1847. The court found she had title and this finding is binding on this court. See authorities supra. (3) Even though some of the deeds in plaintiff's chain of title contained imperfect descriptions, yet they certainly gave color of title, and actual possession of a part of the land would ripen into title of the whole. Sec. 1006, R. S. 1939; Johnson v. Moore, 346 Mo. 854, 143 S.W.2d 254; Truitt v. Bender, 193 S.W. 838; Frazier v. Real Estate Co., 123 S.W.2d 124. (4) Regardless of imperfect deeds, or if no deeds, the fact that plaintiff and her ancestors had been in possession for such a great length of time would give her a perfect title, because the statute vests title in the adverse holder. Sec. 1002, R. S. 1939; Matthews v. Bank, 329 Mo. 556, 46 S.W.2d 161; Franklin v. Cunningham, 187 Mo. 184. (5) There is no substance to appellants' claim that the patent from the United States to William Kimbrow contained a faulty description. This patent among other things recites "for the fractional Township sixteen North of Range thirteen East, in the district of lands subject to sale at Jackson, Missouri, containing Eighty-Six acres and six-hundredths of an acre," and the patent conveys it by that description. The county maps offered in evidence show that the only land in the State of Missouri which is located in Township 16, North, of Range 13, East, is a fractional part of Section 6, being the section in controversy here. Therefore, the description in the patent is perfect. It conveyed all of Township 16, North of Range 13, East, which is all of Section 6, West of Mississippi River, and nothing more. Frazier v. Real Estate Co., 123 S.W.2d 124. (6) The fictitious sale from defendant, Sam Shull and wife to co-defendant, Ernest R. Moody, is void. Shull and wife were tenants of plaintiff (if not, they were squatters without any right whatever), and the statute made their attornment, or sale, to co-defendant, Moody, void. The court had substantial evidence upon which to find a tenancy existed and regardless of any other fact in this case, this alone entitles plaintiff to win. Sec. 2973, R. S. 1939; Merchants Bank v. Clavin, 60 Mo. 559; Dausch v. Crane, 109 Mo. 323; Farrar v. Heinrich, 89 Mo. 521; Renshaw v. Reynolds, 317 Mo. 484, 297 S.W. 374; Jackson v. Ward, 292 S.W. 7; Stagg v. Tanning Co., 56 Mo. 317. (7) The plaintiff and her predecessors claimed land to river and she obtained title to the accretions. This is true whether or not her title is obtained by deeds or adverse possession. Benne v. Miller, 149 Mo. 228; Frederitzie v. Boeker, 193 Mo. 228; Cashion v. Meredith, 333 Mo. 970, 64 S.W.2d 670.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action at law to quiet title and in ejectment for described lands in Pemiscot County. The cause was tried before the court in one hearing without the aid of a jury and no declarations of law were asked or given. The court found for plaintiff on each count and entered judgment. Defendants have appealed.

The first count, in usual form under Sec. 1684, R. S. 1939, Mo R. S. A., Sec. 1684, alleged that plaintiff was the fee simple owner of the following described real estate in Pemiscot County, Missouri, to wit: "All of the Northwest fractional Quarter of Section Six (6), Township Sixteen (16), North of...