Manning v. Kansas & Texas Coal Co.
| Decision Date | 10 May 1904 |
| Citation | 81 S.W. 140,181 Mo. 359 |
| Parties | MANNING, Appellant, v. KANSAS AND TEXAS COAL COMPANY |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Nat. M. Shelton, Judge.
Affirmed.
R. S Matthews, Otho F. Matthews and Ben Eli Guthrie for appellant.
(1) Mrs. McCormick, since 1855, the date of Flore's making the mortgage to Wood, Bacon & Company, seems to have been in exclusive possession of all four forties to her death. She left in possession and mistress of the situation her daughter, Mrs. Manning, whose husband had furnished the money, apparently, to make all the substantial improvements. Mrs. Manning remained in possession of all four of the forties until her marriage with Stephen Gipson. Whatever possession he afterward had came by right of the marriage and followed immediately on the marriage. He was simply tenant by reason of his marital rights. Whatever title he acquired after the marriage must enure to the benefit of Mrs. Manning and her heirs. Hickman v. Link, 97 Mo. 493; McDonald v. Ruick, 139 Mo. 484; Cockrill v Hutchinson, 135 Mo. 67; Hinters v. Hinters, 114 Mo. 26; Whitney v. Salter, 36 Minn. 103, 1 Am. St 656; Dillinger v. Kelley, 84 Mo. 568; Picot v. Page, 26 Mo. 420. The presumption of law is that any purchase of a lien made by a tenant was made for the landlord. Lansman v. Drahos, 10 Neb. 172; Pricket v. Ferguson, 45 Ark. 177; 1 Kerr on Real Property, sec. 598. (2) This doctrine applies to the northwest of the northeast of 35 as well as to the other three forties which Mrs. McCormick had entered. Flore drops out after 1855. He was the brother-in-law of Mrs. McCormick. She had, for years, been exercising ownership over this east forty, continued to do so, left her daughter in possession, who continued to exercise dominion over the forty, and her husband on the marriage took her possession, became her tenant and all rights he thereafter acquired enured to her. Her husband could not divest her maturing rights in the forty by anything he could do, and his duty was to mature those rights, and the law will let him do nothing else. Whatever expense he might be at in maturing those rights could but be matters of account to be charged in equity upon the land. They can by no means make him a title as against his wife and her heirs. Gipson's possession was his wife's possion. There can be no such thing as adverse possession between husband and wife. 9 Am. and Eng. Ency. of Law (1 Ed.), 804. (3) The tax deeds and other deeds to Gipson were wholly incompetent as tending to show title in him adverse to the plaintiff. Their legal effect was to place the title in Mrs. Gipson, which descended to plaintiff, and those deeds could therefore be only considered for that purpose. Allen v. DeGroodt, 98 Mo. 159; Fallan v. Chidester, 46 Iowa 588, 26 Am. 169. The taxes in several instances accrued after the marriage, and the husband should have kept the taxes paid. Bone v. Tyrrell, 113 Mo. 188. It being Gipson's duty to keep the taxes down, any sale for taxes could affect only his own interest and not that of his wife and her heirs. Ferguson v. Quinn (Tenn.), 33 L. R. A. 688. A tenant can not set up title against the landlord after he has taken possession of tenancy unless he first surrenders the landlord's tenancy held by him. Rogers v. Boynton, 57 Ala. 501; 12 Am. Eng. Ency. of Law (1 Ed), 703; Brown v. Keller, 32 Ill. 131; Moshier v. Reding, 12 Mich. 478; Reed v. Shelby, 6 Vt. 602; Newton v. Roe, 33 Ga. 163. (4) The attachment proceeding by E. S. Gipson against Province McCormick should not have been received as showing any adverse title in Stephen Gipson as against his wife and her heirs. The execution shows it was credited with three hundred and twenty-eight dollars. The execution shows no sale or attempted sale. There is no deed. There is no claim there ever was a deed. The parol evidence is that Mrs. Gipson herself settled this claim and the "land was turned back." Stephen Gipson never asserted any claim under this proceeding. The effect of the parol evidence is an effort to save the land, not for the husband, but for the wife and her heirs. (5) Plaintiff had been in the actual possession, renting and controlling this land since 1877, and his possession was notorious in the community and was notice to all purchasers. He had, in fact, been living on it at the time of the sale to Wardell for four years, and was at that time in actual occupancy in his own person. His possession was notice of his rights to all the world, and every purchaser took with notice of his rights, and Wardell and his grantees never acquired those rights by the deeds offered in evidence because Manning's possession was continuous up to the bringing of the suit. Wiggenborn v. Daniels, 149 Mo. 164.
Dysart & Mitchell, W. C. Perry and Daniel B. Holmes for respondent.
(1) The possession of a vendee is not adverse to his vendor, the purchase-money remaining unpaid and the title remaining in the vendor. This doctrine is elementary. Railroad v. Miller, 115 Mo. 158; Coal v. Roe, 39 Mo. 411; Long v. Stockyards, 107 Mo. 298; Mabary v. Dollarhide, 98 Mo. 198; Dollarhide v. Mabary, 125 Mo. 197; McQuiddy v. Ware, 67 Mo. 74. (2) If plaintiff knew of the sale of the coal to Wardell at the time, or assented to such sale, then he is estopped to claim the coal as against Wardell's grantees. The trial court found, and the evidence shows, that he both knew of the sale and assented thereto, and also that he received the purchase price thereof. This brings plaintiff clearly within the rule of estoppel. Alexander v. Railroad, 138 Mo. 464; Price v. Hallet, 138 Mo. 575; Skinner v. Stouse, 4 Mo. 93; Austin v. Loring, 63 Mo. 19; Slagel v. Murdock, 65 Mo. 522; Stevenson v. County, 65 Mo. 425; Longworth v. Aslin, 106 Mo. 155; Clyburn v. McLaughlin, 106 Mo. 521; Green v. Railroad, 82 Mo. 653; Bogart v. Bogart, 138 Mo. 419; Alexander v. Railroad, 138 Mo. 464; Fischer v. Siekmann, 125 Mo. 165. (3) Stephen Gipson owned this land under the statute of limitations. He purchased the same under two suits by attachment against Province McCormick and acquired at least a color of title in 1866 and 1868. He went into possession under his said purchase and exercised dominion and ownership over it, the same as over the Flore forty; he paid the taxes up to the time of his death, and rented it out to various tenants, and collected the rents; and finally, in 1885 or 1886, he sold it to plaintiff, including the Flore tract, for $ 1,600. These acts of ownership were unmistakable, and plaintiff himself conceded title in Stephen Gipson when he purchased the land and promised to pay him for it. (4) Plaintiff has never held this land adversely to the world so as to avail himself of the statute of limitations. One claiming title by limitation must show a possession, not only continuous, but adverse and hostile, and the claim must be to the entire tract or tracts, and not to a mere interest therein. And there must be a time, clearly and distinctly shown, when he first began to assert an adverse and hostile possession. Rodney v. McLaughlin, 97 Mo. 426; Blackaby v. Blackaby, 56 N.E. 1053; Warfield v. Lindell, 30 Mo. 272; Hunnewell v. Adams, 153 Mo. 440; Hunnewell v. Burchett, 152 Mo. 611; DeBarnardi v. McElroy, 110 Mo. 659; Wilkerson v. Eilers, 114 Mo. 245; Bowman v. Lee, 48 Mo. 335. There may be two estates in a tract of land, one party owning the surface and another party owning the coal. The surface and the coal may be severed by deed or reservation. And in such case, the adverse possession of the surface is not an adverse possession of the coal. Moreland v. Coke Co., 170 Pa. St. 33; Lulay v. Barnes, 172 Pa. St. 331; Plumber v. Coal & Iron Co., 160 Pa. St. 483; Kingsley v. Coal & Iron Co., 144 Pa. St. 613; Armstrong v. Caldwell, 53 Pa. St. 284; Caldwell v. Copeland, 37 Pa. St. 427; Marvin v. Mining Co., 55 N.Y. 538; Arnold v. Stephens, 24 Pick. 106; Bogart v. Bogart, 138 Mo. 419; Alexander v. Railroad, 138 Mo. 464; Fischer v. Siekmann, 125 Mo. 165.
This is an action to quiet and determine the title to one hundred and sixty 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 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 Gibson'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 thirty-five, and the southwest quarter of the southeast quarter of section twenty-six, in township fifty-six, range fifteen, 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 thirty-five, 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...
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