McVey v. Carr

• Decision Date: 12 February 1901
• Citation: 159 Mo. 648,60 S.W. 1034
• Parties: McVEY v. CARR.
• Court: Missouri Supreme Court

60 S.W. 1034

159 Mo. 648

McVEY v. CARR.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

EJECTMENT — TITLE — ADVERSE POSSESSION — TAX DEED — COLOR OF TITLE.

1. Where the owner of land sold and conveyed by proper description the east half and the northwest quarter of the tract, and afterwards sold the southwest quarter to another person, but in his deed described it as an undivided fourth of the entire tract, the conveyances show that he had parted with his entire interest in the land, and a quitclaim deed of the tract from his heirs conveyed no title or interest.

2. Where a sheriff's deed is not delivered to the purchaser of land sold under a judgment for delinquent taxes, the purchaser acquires no title, even though the sheriff signs a deed.

3. Where defendant entered into possession of land under a quitclaim deed from one who claimed title as purchaser at a sheriff's sale under a void judgment for delinquent taxes, he was in possession under color of title.

4. Where, during a portion of the 10 years necessary to give plaintiff title to land by adverse possession, his only acts of ownership consisted in pasturing the land and paying the taxes thereon, such acts did not constitute such visible, notorious, continuous, and actual possession as is required to give title by the statute of limitations.

5. Where the defendant is in possession of land not under color of title, plaintiff cannot eject him therefrom without showing title and right of possession in himself.

Appeal from circuit court, Livingston county; E. J. Broaddus, Judge.

Action by William R. McVey against Bentley B. Carr. From a judgment for plaintiff, defendant appeals. Reversed.

L. A. Martin, for appellant. Davis, Loomis & Davis, Samuel & Son, and Sheetz & Sons, for respondent.

BURGESS, J.

This is ejectment for the possession of the S. W. ¼ of the S. E. ¼, and the S. E. ¼ of the S. W. ¼ of section 26, township 57, of range 23, in Livingston county. John Graves is the common source of title. The tract, according to the government survey, contains 88.90 acres. John Graves sold this tract in three parcels. He sold the east half to Robert M. Graham on the 23d day of March, 1869, and the northwest quarter of said tract he sold to the plaintiff, McVey, March 23, 1869, and on the 9th day of January, 1871, he sold the southwest quarter of said tract to James H. Ryan. In the deed to Ryan the land conveyed thereby is described as the undivided one-fourth. By different conveyances and descriptions of the land the parcels conveyed by John Graves to Graham and Ryan passed to William Hamilton and Francis Jacquett, and was sold under a judgment against them for taxes on the land on September 25, 1882, at which sale one Robert S. Moore became the purchaser, but it does not appear that he ever received the sheriff's deed therefor. On the 30th day of September, 1896, Robert S. Moore conveyed by quitclaim deed, for the expressed consideration of $400, the land to the defendant, Bentley B. Carr. The deed was made in correction of a deed made by Moore to Carr on the 19th day of June, 1894, in which the land was incorrectly described, about which time Carr entered into the possession of the land. Plaintiff read in evidence a quitclaim deed from John W. Graves and others to him, dated April 1, 1895, conveying the land in litigation to him, and also a quitclaim deed to the same land from Flavius J. Williams and others to him, dated January 1st. The grantors in these two deeds are heirs of John Graves, deceased. Plaintiff introduced evidence which tended to show that when he got the deed from John Graves in 1869 he immediately took possession of the land, and has been in the possession ever since, paying the taxes thereon; that he used the land and the timber on it, and also used it several years as pasture, and fenced it in the spring of 1890 or 1891, in April or May; that he owned other land south of the land in contest, in section 35, which is inclosed; it is in two pieces; that he had the land in contest fenced, and used it as pasture; that it was inclosed for about seven years; that he had possession of the land until the defendant, Bentley B. Carr, took possession of it about three years ago, some time before the commencement of this suit; that plaintiff had a house built on the land, and a man lived in it as his tenant over a year, and cultivated part of the land; the house was built in 1891 or 1892; that the defendant, Bentley B. Carr, is now in the possession of the land; that the plaintiff had the land...