Manning v. Kansas & T. Coal Co.

• Decision Date: 10 May 1904
• Parties: MANNING v. KANSAS & T. COAL CO.
• Court: Missouri Supreme Court

81 S.W. 140

181 Mo. 359

MANNING v. KANSAS & T. COAL CO.

Supreme Court of Missouri, Division No. 2.

May 10, 1904.

JUDICIAL SALES — DEEDS — PRESUMPTION OF DELIVERY — ADVERSE POSSESSION — MINERAL RIGHTS — SEVERANCE — ESTOPPEL.

1. Where the record in an attachment suit shows that the land attached was sold by the sheriff in 1867, and it appears that the purchase money was paid, and that the purchaser thereafter paid taxes and was in possession, it will be presumed that the sheriff executed a deed in accordance with the sale.

2. A purchaser at judicial sale took an equitable title, though the sheriff's deed did not correctly describe the land.

3. Whatever title or interest is acquired in land, by deed or otherwise, by one in possession by virtue of his marital rights, inures to the benefit of the wife.

4. The possession of land by a party entering thereon under a verbal contract with the owner for its purchase is not adverse or hostile as against his vendor.

5. Where the owner of land stands by and sees another sell it, or the minerals therein, and says nothing, and especially when he receives a part or all of the purchase money, he will be estopped to thereafter claim the property.

6. Where the minerals in land are reserved in a deed, the occupancy of the surface of the land by the grantee thereof is not adverse as to the underlying minerals.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Suit by Thomas J. Manning against the Kansas & Texas Coal Company. From a decree for defendant, plaintiff appeals. Affirmed.

R. S. Matthews, Otho F. Matthews, and Guthrie & Franklin, for appellant. Dysart & Mitchell, W. C. Perry, and Daniel B. Holmes, for respondent.

BURGESS, J.

This is an action to quiet and determine the title to 160 acres of land in the county of Macon, of which plaintiff claims to be owner in fee and in the possession. The answer is a general denial. It then admits that it may be true, as alleged by plaintiff, that he is in possession of the surface of the land in question, but denies that the plaintiff is in possession or ever has been in possession of the coal strata and other minerals underneath the surface of the said real estate. It alleges that it acquired title to the coal strata under the surface of the land, and surface rights, from one Thomas Wardell, to whom one Stephen Gipson, the then owner in fee to the land, conveyed by deed dated May 20, 1887. Other defenses relied upon were the statute of limitations, and laches upon the part of plaintiff in instituting this suit, and estoppel by plaintiff by reason of his having received, with knowledge, a distributive share of the purchase money paid to Gipson by Wardell for the land, which was part of Gipson's estate. Plaintiff replied, denying all new matter set up in the answer.

The land involved in this litigation is the northwest quarter of the northeast quarter and the north half of the northwest quarter of section 35, and the southwest quarter of the southeast quarter of section 26, in township 56, range 15, in Macon county. All of the land was entered by Lorena D. McCormick in 1837, and 1848, except the northwest quarter of the northeast quarter of section 35, which was entered by James Flore in 1844. Plaintiff claims to be the absolute owner of all the land, including all mineral lying thereunder, while defendant claims to be the absolute owner of the coal and other minerals beneath the surface, with certain surface rights incident and appurtenant to mining the coal.

The court found, adjudged, and decreed as follows: "The court further finds from the evidence that the plaintiff is the owner in fee of the surface of said lands as against the defendant; that is to say, all of the said lands except the coal, coal strata, and other minerals and mineral products in and under the surface of the said lands, conveyed by Stephen Gipson to Thomas Wardell by deed dated the 20th day of May, 1887, and recorded in the recorder's office of Macon county, Missouri, on the 6th day of October, 1887, in Book 66, at page 400. The court further finds from the evidence that the defendant is the owner in fee of all the coal, coal strata, and other minerals and mineral products in and under the surface of the said described lands, as against the plaintiff, and that the defendant is entitled to the said coal, coal strata, and other minerals and mineral products, and all interest therein, as provided and contained in the said deed from Stephen Gipson to Thomas Wardell, dated the 20th day of May, 1887, and recorded on the 6th day of October, 1887, in the recorder's office of Macon county, Missouri, Book 66, at page 400. It is therefore ordered and adjudged and decreed by the court that the said surface of the said real estate be, and the same is hereby, defined and adjudged to the plaintiff as against the defendant, to have and to hold the same from any right, title, or interest of the defendant, subject only to the rights of the defendant as hereinafter provided and adjudged. It is further ordered, adjudged, and decreed by the court that all the coal, coal strata, and other minerals and minerals products in and under the surface of the said lands be, and the same are hereby, defined and adjudged to the defendant, as against the said plaintiff, to have and to hold the same forever against any and all right, title, claim, or interest of the plaintiff thereto, and all the right, title, and interest therein, as provided and conveyed in said deed from Stephen Gipson to Thomas Wardell, dated the 20th day of May, 1887, and recorded in the recorder's office of Macon county, Missouri, on the 6th day of October, 1887, in Book 66, at page 400. It is further ordered and adjudged by the court that the defendant have and recover of the plaintiff the costs in this suit, and that execution issue therefor."

In due time plaintiff filed motions for new trial and in arrest, which were overruled, and he appeals.

Plaintiff has no paper title to any of the land, and, if he has any title to it, it is either by inheritance from his mother, Mrs. Stephen Gipson, and his deceased half-brother, Dick Gipson, or under the statute of limitations. It appears from the evidence that no title to the Flore 40 ever vested in plaintiff's mother; hence he acquired no interest in that tract from her. The same is true with respect to three acres sold by Lorena D. McCormick to said Flore in the southwest corner of the 40 in section 26. As to the Flore 40, the evidence shows that Stephen Gipson acquired a tax title to the same and went into possession thereof as early as 1866, and held possession thereof, and exercised ownership over the same, and held the same adversely, up to the time of his death, in 1891. Neither Lorena D. McCormick, nor any of her descendants, ever made any claim to the Flore 40, and the evidence shows that Stephen Gipson's title to the said Flore 40 was complete and perfect. The Flore 40 is the one defendant was proceeding to mine and work. As to the other three 40's, known as the "McCormick tract," Lorena D. McCormick entered them in 1837 and 1848. She died in 1862, leaving three children and heirs, Marcus, Province, and plaintiff's mother. She made a will in December, 1861, by which she left all her property to her son Marcus — known in the testimony as Mark — subject to the payment of debts. This will was recorded, but it does not appear that the same was ever probated. It was, however, offered in evidence by the plaintiff without objection on the part of the defendant. Mark McCormick died without children or other descendants, leaving surviving him, as his heirs, his brother, Province McCormick, and his sister, plaintiff's mother, Mrs. Gipson. Province McCormick afterwards died, leaving surviving him an only son and heir, Othello McCormick. The land was never partitioned between Province McCormick and plaintiff's mother, but remained in coparcenary. Stephen Gipson, through whom defendant claims, married Jennie Manning, plaintiff's mother, on the 19th day of June, 1863. Some years later, plaintiff's mother died, leaving several children by Stephen Gipson, whereupon Stephen Gipson became tenant by the curtesy to all the right, title, and interest of the said wife in and to the said land. This was an estate for life in the whole. Stephen Gipson died April 12, 1891, on which day his tenancy by the curtesy expired. Plaintiff's mother left surviving her, as her heirs, subject to the curtesy and life estate of her husband, the following: The plaintiff, T. J. Manning, by her first husband, and Lou Gipson, Fannie Gipson, and Dick Gipson, by her last husband, Stephen Gipson. Each of these four children became entitled to an undivided one-fourth of their mother's one-half of said lands, subject to curtesy, and they held the same as co-tenants in common; none of them having a right to the possession until after the death of Stephen Gipson, the life tenant by curtesy. Afterwards Dick died single and without children or descendants, and his interest in his mother's land descended to the father, brothers, and sisters in equal parts; the half bloods taking a half interest, and the whole bloods taking a whole interest. Dick left surviving him his father, Stephen Gipson, plaintiff, Lou, and Fannie, of the whole blood, and the ten children of Stephen Gipson by a former marriage, of the half blood. Lou Gipson married Winn, and afterwards died, leaving a husband and children still living. The plaintiff's mother never succeeded to more than one half of the McCormick tract, her brother Province succeeding to the other half. Plaintiff's mother left surviving her, as her heirs, subject to the curtesy and life estate of her husband, the following: The plaintiff, T. J. Manning, by her first husband, and Lou Gipson, Fannie Gipson, and Dick Gipson, by her last husband, Stephen Gipson. Hence the plaintiff could not take by inheritance exceeding the one-fourth of the one-half of...