Matthews v. Karnes

• Decision Date: 30 July 1928
• Docket Number: No. 26426.,26426.
• Citation: 9 S.W.2d 628
• Parties: CHARLES D. MATTHEWS, JR., v. JOHN M. KARNES, Appellant.
• Court: Missouri Supreme Court

9 S.W.2d 628

CHARLES D. MATTHEWS, JR., v. JOHN M. KARNES, Appellant.

No. 26426.

Supreme Court of Missouri. Division One.

July 30, 1928.

Appeal from Butler Circuit Court. — Hon. Charles L. Fergusor Judge.

AFFIRMED.

John T. McKay for appellant.

(1) The court erred in sustaining a demurrer to the evidence at the close of all the evidence by the plaintiff, and in directing the jury to return a verdict against the defendant on the statute of limitations. Sec. 1305, R.S. 1919. (a) Plaintiff commenced this action by the filing of a petition to determine title on September 25, 1920. Defendant's amended answer, which was in the nature of an affirmative defense under Section 1973 to perfect title by limitation, was filed March 4, 1925, showing a period of more than fourteen years had passed since defendant became possessed of said land under claim of ownership and continuous possession from the time he became possessed until the filing of the answer, and was still in possession at the time of the trial. The record also discloses that plaintiff has never been in the possession of said real estate: that therefore he was barred under the ten-year statute of limitations and defendant was entitled to a decree, decrecing title in him under Sec. 1973. R.S. 1919. (b) The pendency of an action to determine title is no bar under the statute of limitations, for the reason it is not a possessory action, and its ultimate results will not disturb the possession. Even ejectment, which is a possessory action, does not toll the statute until a final judgment is rendered and then only from the date of the judgment. Sanford v. Herron, 161 Mo. 176; Rogers v. Johnson, 259 Mo. 173; Armor v. Frey. 253 Mo. 447: Powell v. Powell, 267 Mo. 117; Real Estate Co. v. Lindell, 133 Mo. 38; Peper v. Union Tr. Co., 281 Mo. 563. (c) A verdict should be directed for the plaintiff only when defendant's evidence viewed in the most favorable light without regard to plaintiff's evidence is insufficient to sustain a verdict for defendant. Dyer v. Cowden, 168 Mo. App. 649; Johnson v. Gracey, 230 Mo. 380: Jackson v. Hardin. 83 Mo. 186. (d) On demurrer to the evidence, or the direction of a verdict by a peremptory instruction directing the jury to return a verdict for the plaintiff on the statue of limitations, the court must indulge every inference of fact in favor of the party offering the evidence which a jury might indulge with any degree of propriety. Wilson v. Board of Education. 63 Mo. 137; Heine v. Railroad, 144 Mo. App. 447; Buckley v. Kansas City, 95 Mo. App. 188: Ammon v. Cole & Coke Co., 156 Mo. 232. (e) This action being a law case and evidence offered which if true would establish any one of the good defenses pleaded in the answer, the court should not have given peremptory instruction to find for the plaintiff, but should have submitted the issues to the jury. Johnson v. Gracey, 230 Mo. 394; Jenks v. Glenn, 86 Mo. App. 329; Dumbar v. Fiefield, 85 Mo. App. 484: Hohn v. Bradley, 92 Mo. App. 399. (f) Adverse possession not only bars recovery but vests perfect title in the adverse holder. Franklin v. Cunningham, 187 Mo. 184; Johnson v. Calvert, 260 Mo. 456; Curtain v. Bull. 168 Mo. 622; Sconnell v. Am. S.F. Co., 161 Mo. 606; King v. Theis, 272 Mo. 422; Real Estate Co. v. Megaree, 280 Mo. 41. (2) The court erred in refusing to submit the question as to whether William Prnett, the grantee in the patent offered in evidence under which plaintiff claims title, was living or dead on the 20th day of August, 1867, being the date on which said patent was issued by the court. The defendant offered testimony tending to show that the patent on which plaintiff relies for title, through mesne conveyances, was issued to Pruett, August 20, 1867, and that Pruett died between the years 1862 and 1863; that he was dead some four or five years prior to the date the county court issued the patent in his name, and for that reason the patent is void and passed no title whatever. This evidence was competent and material but was ruled out by the court and not permitted to go to the jury. Collins v. Brannie, 1 Mo. 540; Thomas v. Wyatt, 25 Mo. 24; Norflect v. Russell, 65 Mo. 178; McDonald Heirs v. Smalley, 6 Pet. 332; Golloway v. Finley, 12 Pet. 297; Galt v. Galloway. 4 Pet. 332; Byrd v. McGrew, 255 Fed. 759; Norfleet v. Russell, 64 Mo. 176; Bartlett v. Brown, 121 Mo. 335; Martin v. Kitchen, 195 Mo. 477; Carter v. Macy, 239 Mo. 518. (3) The court erred in admitting in evidence the certified copy of a certificate issued by the Register of Dunklin County to William Pruet, dated December 27, 1860, and upon which said certificate the patent herein was based, for the reason that said certificate of entry is no evidence of title under the law governing the sale of swamp land donated by the Government to the State and by the State to the county, and unless accompanied by receiver's receipt showing payment no title can pass on the same. (a) The Register's certificate, being Certificate No. 329, offered in evidence on the part of plaintiff, should have been excluded, as it is no evidence of title in this State. Nall v. Conover, 223 Mo. 490; Phillips v. Trust Co., 214 Mo. 669; Whitman v. Giesing, 224 Mo. 600; Bishop v. Blocker, 235 Mo. 613. (b) The County Register's Books, in which is entered certificates of entry of swamp land, are no evidence of title are not records required by law to be kept, but simply private books of the parties who made them, and therefore a certified copy of the original record from the Register's books would not be competent. Authorities last cited above. (4) The court erred in rejecting evidence tending to show that the defendant is an innocent purchaser for value without notice as against the plaintiff. Secs. 2809, 3810, R.S. 1919. (a) Each of the above sections have been carried through all the revisions of the statutes dating back to 1855, without any material changes. Defendant had no notice either actual or constructive of the sale by Dunklin County to William Pruett in 1867, if there was such sale, as said patent purporting to have been issued by Dunklin County dated August 20, 1867, was never recorded in the Recorder's office of Dunklin County, and as to defendant the Pruett patent was inoperative to convey any title to plaintiff. Wilcox v. Phillips, 199 Mo. 288; Dclassus v. Winn, 174 Mo. 636; Morrison v. Juden, 143 Mo. 282; Elliott v. Buffington, 149 Mo. 663; Hickman v. Green, 123 Mo. 165; Byrd v. McGrew, 255 Fed. 759. (b) Defendant was bound to take notice of only such deeds as appeared of record, and in this instance they showed the title to be vested in Tennie C. Langdon and from her to defendant. Greer v. Lbr. & Mining Co., 134 Mo. 85; Railroad v. View, 156 Mo. 608; Becker v. Strocher, 167 Mo. 306. (e) A purchase is only charged with notice of recitals of deeds lying within the chain of title through which he claims. The record of a deed lying outside the chain of title is no notice to him. Tydings v. Pitcher, 82 Mo. 379; Mason v. Black, 87 Mo. 329; Gross v. Watts, 206 Mo. 397. (d) Within the meaning of the Missouri Registry Act, a patent is not different from any muniment of title, and like a deed should he filed and recorded, and if by failure to record the rights of an innocent party accrues such rights must prevail, just as in cases where there is a failure to file a deed. Wilcox v. Phillips, 199 Mo. 289; Vance v. Corrigen, 78 Mo. 94; Allen v. Ray, 96 Mo. 542; Payne v. Lot, 90 Mo. 676; St. Joseph v. Forsee, 110 Mo. App. 127. (e) There was no law requiring the keeping of a Register's Book, at the time the Pruett patent was issued, nor at the time the register's receipt was recorded therein if received, hence it imparted no notice to E.V. McGrew, a subsequent purchaser, under the Sugg patent. Russ v. Simms, 261 Mo. 27; Nall v. Conover, 223 Mo. 447. (5) The court erred in refusing defendant's declarations of law numbered 1, 2, 3 and 4. Each of these declarations of law were based upon the various issues raised by the pleadings and should have been given, and more especially instruction number one, based on the statute of limitations, and it was error of the court to refuse either of them. All authorities heretofore cited. (6) The court erred in admitting in evidence certificate number 60, bearing date August 20, 1867, purporting to be a patent issued by the county court on that date to William Pruett for the lands in controversy, because said patent shows on its face that it is based upon the certificate of the Register of Swamp Lands which is no evidence of payment or title, and the patent is void on its face. Nall v. Conover, 223 Mo. 490; Phillips v. Trust Co., 214 Mo. 669; Whitman v. Geising, 224 Mo. 600; Bishop v. Blocker, 235 Mo. 613; Russ v. Simms, 261 Mo. 27. The statement contained in the patent that "William Pruett has deposited in the County Clerk's office of Dunklin County, Missouri, a certificate of register of swamp lands for said county, whereby it appears that full payment has been made to said county by said William Pruett" does not prove payment was made, and is no more evidence of payment than the certified copy of the Register's receipt offered by the plaintiff and is no evidence of title. Nall v. Conover, 223 Mo. 490: Phillips v. Trust Co., 214 Mo. 669. (7) The judgment is for the wrong party. In suits to determine title the issues may be submitted to a jury. Lee v. Conran, 213 Mo. 404; Hauser v. Murray, 256 Mo. 84; Toler v. Edwards, 249 Mo. 159. (8) The judgment is against the evidence, the weight of the evidence and the law under the evidence. (9) The court erred in refusing competent, relevant and material evidence offered by the defendant. (10) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by the plaintiff. (11) In a suit to quiet title under the Act of 1897 the court cannot render judgment for plaintiff for the possession of the land. Belford v. Sykes, 168 Mo. 8: Kochler v....