Meriwether v. Love

• Decision Date: 19 February 1902
• Citation: 67 S.W. 250,167 Mo. 514
• Court: Missouri Supreme Court
• Parties: MERIWETHER v. LOVE.<SMALL><SUP>†</SUP></SMALL>

67 S.W. 250

167 Mo. 514

MERIWETHER v. LOVE.^†

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

STATUTES — REPEAL — QUIETING TITLE.

Rev. St. 1889, § 2092 (Rev. St. 1899, § 647), the only statute relative to quieting titles in existence previous to Act March 15, 1897 (Rev. St. 1899, § 650), is repealed by the latter; it covering all the former embraced, which was found inadequate, and supplying deficiencies therein, and providing that it shall take immediate effect; it "taking the place of statutes which failed in their object."

Appeal from circuit court, Clinton county; A. D. Burnes, Judge.

Suit by Hunter M. Meriwether against James Love. From a judgment of dismissal, plaintiff appeals. Affirmed.

C. E. & D. D. Denham, for appellant. Simrall & Trimble and Sandusky & Sandusky, for respondent.

MARSHALL, J.

Suit to quiet title to certain lands in Clay county. The petition alleges that the plaintiff is in possession of said lands; that he is the owner of the fee simple; that he is credibly informed and believes that the defendant makes some claim to the land adverse to the estate of the plaintiff, — and prays that the defendant be summoned to show cause why he should not bring an action to try his alleged title. The answer is a general denial, coupled with a special denial of plaintiff's possession and title, and an allegation that the defendant owns the land in fee. The case was submitted to the court upon the following stipulation: "It is hereby stipulated by and between the plaintiff and the defendant in the above entitled cause that the same may be tried by the court upon the following agreed statement of facts, to wit: First. It is hereby stipulated and agreed that the plaintiff was at the time of bringing this action, and is now, in possession of the premises described in the petition. Second. It is hereby stipulated and agreed that the case may be tried and adjudged by the court upon the pleadings and the above evidence, and that if, under the pleadings and the above stipulation, the court is of the opinion the plaintiff is entitled to the decree as prayed in the petition, then a decree shall be rendered in favor of the plaintiff, that defendant bring his suit to try his title as required by law; but if the court is of the opinion that, under the pleadings and the above stipulation, plaintiff is not entitled to such decree, then judgment shall be for defendant, and the plaintiff's petition shall be dismissed, reserving to either party the right of appeal, as provided by statute, in case the judgment should be adverse. H. M. Meriwether. H. F. Simrall, Attorney for Defendant." And thereupon, there being no other evidence, the court, on this stipulation, took said matter under advisement; and afterwards, to wit, on the 24th day of October, 1899, the court rendered judgment for the defendant, which, as far as material to state, is as follows, to wit: "The court doth find and determine that the law of 1897 does not repeal section 2092 of the Revised Statutes of 1889, but enlarges the jurisdiction of the circuit courts in such cases, and that under the laws of 1897 the entire question concerning the title to said real estate could be settled and litigated in this case; and, there being no necessity or reason shown to the court why defendant should be directed to establish his title to the land in question by another and different suit, this case is dismissed by the court, in accordance with the terms of the stipulation, that that entry be made if plaintiff is not entitled to the decree prayed for." From this judgment the plaintiff appeals.

The sole question involved is whether section 2092, Rev. St. 1889 (section 647, Rev. St. 1899) is repealed by the act of March 15, 1897 (Acts 1897, p. 74; being section 650, Rev. St. 1899). If it is so repealed, the judgment of the lower court is right, and must be affirmed, because the plaintiff offered no evidence to support his averment of title. If it is not repealed, the judgment of the circuit court must be reversed, and the cause remanded to that court, to enter a decree requiring the defendant to institute and prosecute an action to try his claim of title, or be forever barred therein, because the defendant admits that he claims a fee-simple title, as does also the plaintiff, and that the plaintiff is in possession. Webb v. Donaldson, 60 Mo. 394, and Northcutt v. Eager, 132 Mo. 265, 33 S. W. 1125, are cited as bearing upon the question here involved. But this is a misapprehension. Those cases simply decide that a life tenant in possession cannot maintain an action to quiet title, under section 2092, Rev. St. 1889, against a remainder-man who admits the title and right to possession of the life tenant, and claims no title or right of possession in himself until the termination of the life estate. It should be noted that section 2092 only authorizes a suit to quiet title to be maintained by a person in possession against one not in possession when the person not in possession is making a claim "adverse to the estate of the petitioner." Because of this provision, it was decided in the Webb and Northcutt Cases that no such action would lie against one who admitted the plaintiff's title, and claimed only after the plaintiff's estate had terminated. In Huff v. Improvement Co., 157 Mo., loc. cit. 69, 57 S. W. 715, it was pointed out that the act of 1897 was apparently enacted in consequence of what was said in the Northcutt Case, about section 2092 not being broad enough to authorize the life tenant to make the remainder-man, who claimed under and not adverse to the life tenant, bring a suit to try his title. Under the statute as it existed prior to the act of 1897, only a person in possession could maintain such an action, and then only against an adverse claimant who was out of possession. Dyer v. Baumeister, 87 Mo. 137; Association v. Johnson, 120 Mo., loc. cit. 302, 25 S. W. 190; Daudt v. Keen, 124 Mo. 105, 27 S. W. 361. The act of 1897 is a much more comprehensive law than section 2092, Rev. St. 1889. It provides as follows:

"Section 1. Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property.

"Sec. 2. The institution, prosecution, trial and determination of suits under this act shall conform in all respects to the provisions of the Code of Civil Procedure, now existing and in force in this state concerning actions...