McClanahan v. McClanahan
| Decision Date | 02 June 1914 |
| Citation | 167 S.W. 991,258 Mo. 579 |
| Parties | JOHN McCLANAHAN et al., Appellants, v. SAMUEL McCLANAHAN et al |
| Court | Missouri Supreme Court |
Appeal from Putnam Circuit Court -- Hon. George W. Wanamaker, Judge.
Reversed and remanded.
W. H Childers, John W. Clapp and D. M. Wilson for appellants.
(1) The trial court erred in its action dismissing plaintiffs' petition and in finding as a matter of fact that the defendant, Samuel W. McClanahan, was not a trustee holding in trust for the use and benefit of the heirs of H. T McClanahan, deceased, the legal title to the west half of the southwest quarter of section 16, and entering its finding and decree that the legal title to said lands is in the said Samuel W. McClanahan, for the reasons: First (a.) This was school land ceded by the Federal government to the State for schools and educational purposes; (b.) Was duly advertised and sold to Elijah Casteel. (c.) Casteel's certificates of purchase were duly assigned to William Calhoun. (d.) Full payment of the purchase price was made by William Calhoun and the fact of payment ordered certified to the register of lands that patent might issue to him. (e.) These uncontroverted facts put the equitable title to all the lands described in the petition in sec. 16, in William Calhoun. R S. 1845, chap. 159, p. 989, secs 7-8; R. S. 1909, secs. 7967, 7992. Second. (a.) The equitable title to the land in section 16 being now in William Calhoun, would at his death pass to his heirs, and, (b.) a patentee who secured a patent to this land with knowledge of the fact that the equitable title was in William Calhoun or his heirs, would not be permitted to retain the title. (c.) If Samuel W. McClanahan obtained the patent to this land with knowledge of the fact that the Calhoun heirs were the equitable owners, then he became a trustee for them or their grantee's use and benefit, and the trial court committed an error in failing to declare him such trustee. Barksdale v. Brooks, 70 Mo. 197; Carman v. Johnson, 20 Mo. 108; Boyd v. Springs Co., 137 Mo. 482; Valle v. Bryan, 19 Mo. 423. (d.) The records of the county court were constructive notice to Samuel W. McClanahan that the court had directed the clerk to certify to the register of lands that the patent issue to Calhoun. (e.) The answer admits notice, for it is alleged that the land was bought by Casteel, that he sold it to Calhoun and that Samuel W. McClanahan bought out the Calhoun heirs and that they made him a deed. (f.) The stipulation shows that Samuel W. paid no money for the land when the county court in September, 1896, ordered it to be certified that a patent issue to him. (g.) Where a person purchases the legal title with the knowledge of an outstanding equitable title, he is but a trustee for the holder of the equitable title. McLaurin v. Morris, 30 Mo. 462; Smith v. Walser, 49 Mo. 250; Bailey v. Winn, 101 Mo. 649. (h.) The procuring of the patent by Samuel W. McClanahan after the death of his father, and without the knowledge of the other heirs was fraud upon them. A patent thus obtained would convey no title to Samuel W. McClanahan, but would inure to the heirs of H. T. McClanahan, and would be held in trust by Samuel W. for the use and benefit of all the heirs. Carman v. Johnson, 29 Mo. 84; Jones v. Stanton, 11 Mo. 433; Picot v. Page, 26 Mo. 398; Dillinger v. Kellym, 84 Mo. 561; Campbell v. Light Co., 84 Mo. 352; Boyd v. Springs Co., 137 Mo. 482; Phillips v. Sherman, 36 Ala. 192; Larkein v. Gold Mine Co., 25 F. 337. (i.) Nor does the fact that the name of the grantee in the deed from the Calhoun heirs was left blank affect the case, for the controversy here is not between those heirs and the heirs of H. T. McClanahan, but between the heirs of the latter and Samuel W. McClanahan. (j.) The blank could have been filled in by the order of H. T. McClanahan. Fields v. Staggs, 52 Mo. 534; Bank v. Worthington, 145 Mo. 91; Burnsides v. Wayman, 49 Mo. 356; Campbell v. Smith, 27 Am. Rep. 5; Otis v. Browning, 59 Mo.App. 326; Thummel v. Holden, 149 Mo. 684; Einstein v. Land Co., 132 Mo.App. 84. (2) The trial court erred in not finding and entering its decree declaring the defendant, William McClanahan, a trustee holding the legal title to the south half of the southeast quarter of section 17, in trust for the use and benefit of all the heirs of H. T. McClanahan, deceased, and in not ordering and directing that said land be partitioned and divided in kind. (a.) The letter of William McClanahan to his sister, Mrs. Helen Harvey, written after the institution of the suit admits the trust. (b.) Even where the conveyance is made in fraud, if the grantee admits the trust, the court will enforce it. Cottington v. Fletcher, Atkyn's, 156; Chaplin v. Chaplin, 3 Pere Williams, 233; Muckleston v. Brown, 6 Ves., Sr., 68. (c.) There is no claim set up in the answer that William McClanahan ever paid for the land, or that he ever sold it, gave it or deeded it to Samuel W. McClanahan, or to any other person. (d.) The answer further contains a disclaimer by William McClanahan of any interest in the land. 1 Perry on Trusts (2 Ed.), sec. 151, p. 168. (e.) There is no claim set up in the answer that Samuel W. McClanahan ever bought the land of William McClanahan or his father, or that either of them ever gave the land to him. (f.) H. T. McClanahan bought and paid for the land and had the deed made to William. Where land is so purchased and deeded William would hold the land in trust for his father, and upon his father's death for his heirs. 1 Perry on Trusts (2 Ed.), sec. 146, p. 163; Phillips v. Phillips, 50 Mo. 603; Olden v. Hendrick, 100 Mo. 533; Gibson v. Foote, 40 Miss. 788; Cook v. Bremand, 27 Tex. 457; Sutherland v. Sutherland, 19 Iowa 325. (3) The trial court erred in its finding and decree that the defendant, Samuel W. McClanahan is the owner in fee of the south half of the southeast quarter of section 17. (a.) As Samuel W. McClanahan does not claim to hold the land as the grantee of either William McClanahan or his father, and as he does not claim it as a gift from either, the only title he could acquire would be by occupancy and adverse possession. (b.) Samuel W. McClanahan does not have color of title to even a part of the land in section 17, and possession without color of title, though adverse, does not extend the holding beyond the limits of the actual possession. Pharis v. Jones, 122 Mo. 125; Wilson v. Purl, 148 Mo. 449. (c.) The evidence clearly shows that the possession of Samuel W. McClanahan was not adverse to his father, but permissive. (4) The trial court erred in its finding and decree that the defendant, Samuel W. McClanahan is the owner in fee of the northwest fourth of the northeast quarter and the northeast fourth of the northwest quarter of section 20. (a.) There is no evidence that Samuel W. McClanahan bought this land or contracted to buy it of Robert Campbell. (b.) The evidence is that his father bought the land of Robert Campbell, but never received a deed for it. (c.) The pleadings show that in his suit to quiet the title brought by Samuel W. McClanahan against the unknown heirs of Robert Campbell he relied on his adverse possession of the land alone. (d.) The evidence of the defendants taken as a whole does not show that the possession of Samuel W. McClanahan was adverse to that of his father, but was permissive; while all the evidence of plaintiffs shows that he was there simply as the manager of his father, who was the real owner of the land. (5) That the trial court erred in finding and rendering its decree in favor of the defendant, Samuel W. McClanahan, to any of the lands described in plaintiffs' petition, and this case must be reversed. Barkesdale v. Brooks, 70 Mo. 197; Carman v. Johnson, 20 Mo. 108; Boyd v. Springs Co., 137 Mo. 482; Valee v. Bryan, 19 Mo. 423; Truesdale v. Callaway, 6 Mo. 605. (6) To convert a friendly or subordinate possession into an adverse possession there must be a clear, positive and continued disclaimer and disavowal, and an assertion of an adverse right brought home to the owner. These are indispensable before any foundation can be laid for the operation of the statute. Hamilton v. Boggess, 63 Mo. 249; Budd v. Collins, 69 Mo. 129; Meier v. Meier, 105 Mo. 431; Comstock v. Eastwood, 108 Mo. 41; Pitzman v. Boyce, 111 Mo. 387; Hunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440; Baber v. Henderson, 156 Mo. 566; Stevenson v. Black, 168 Mo. 561; Coberly v. Coberly, 189 Mo. 17; Lumber & Mining Co. v. Jewell, 200 Mo. 707; Heckerscher v. Cooper, 203 Mo. 278; McCune v. Goodwillie, 204 Mo. 339.
John W. Bingham, Campbell & Ellison and N. A. Franklin for respondents.
(1) Samuel W. McClanahan has been in the actual, exclusive and continuous possession of this land since 1875, exercising the right of ownership and holding himself out to the public as the owner. His acts in fencing and improving the land, as well as building a new house and barn thereon, which must have been well known to plaintiffs, would alone show such adverse holding as to preclude plaintiffs from recovering in this action. He rented and leased the farm at his own pleasure without consulting with anybody; collected the rents and profits and accounted to no one for the same. What further could he do to bring the attention of the public to his ownership? This farm was always known from 1875 as the Sam McClanahan farm. Furthermore he has the tax receipts in his own name showing he paid the taxes from 1880. In fact, no one but Sam ever paid any taxes on this land. Myers v Schuchmann, 182 Mo. 159; Patton v. Smith, 171 Mo. 231; Swope v. Ward, 185 Mo. 316; Glascock v. Car & Foundry Co., 229 Mo. 598. One witness testified he cut and hauled saw logs from almost every part of this farm, which were cut...
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