Meriwether v. Love

• Decision Date: 12 March 1902
• Parties: MERIWETHER, Appellant, v. LOVE
• Court: Missouri Supreme Court

67 S.W. 250

167 Mo. 514

MERIWETHER, Appellant, v. LOVE

Supreme Court of Missouri, First Division

March 12, 1902

Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.

Affirmed.

C. E. & D. D. Denham for appellant.

(1) The Act of 1897 (sec. 650, R. S. 1899), did not repeal or alter the previously existing statute relating to suits to quiet title. Negrotto v. The City of Monett, 49 Mo.App 286; State v. Daly, 49 Mo.App. 184; State ex rel v. Draper, 47 Mo. 33. (2) The Act of 1897 simply enlarged the jurisdiction of the circuit court so as to give certain additional rights which did not exist prior to its passage. Northcutt v. Eager, 132 Mo. 265; Huff v. Land & Imp. Co., 157 Mo. 65. (3) Plaintiff's possession and defendant's claim of title having been admitted, there was nothing for the circuit court to do but render judgment as required by statute. Murphy v DeFrance, 23 Mo.App. 337; Colline R. E. & B. Assn. v Johnson, 120 Mo. 299.

Simrall & Trimble and Sandusky & Sandusky for respondent.

(1) The record in this case fails to show any bill of exceptions filed as required by law. Fulkerson v. Houts, 55 Mo. 301; Bates v. Realty Company, 88 Mo.App. 550; Haydon v. Grocery Company, 88 Mo.App. 241; Burdick v. Life Association, 86 Mo.App. 94; Butler County v. Graddy, 152 Mo. 441. (2) This cause having been dismissed by agreement of parties, no appeal lies from the judgment of dismissal. (3) The Act of 1897 (Laws 1897, p. 74, now sec. 650, R. S. 1899), enlarges the jurisdiction, and changes the former practice in suits to quiet title. Huff v. Land & Imp. Co., 157 Mo. 65; secs. 650, 651, R. S. 1899.

OPINION

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."

And thereupon, there being no other evidence, the court on this stipulation took said matter under advisement, and afterwards, to-wit, on October 24, 1899, 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 law 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.

I.

The sole question involved is whether section 2092, Revised Statutes 1889 (sec. 647, R. S. 1899), is repealed by the Act of March 15, 1897 (Laws 1897, p. 74, being sec. 650, R. S. 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 can not maintain an action to quiet title, under section 2092, Revised Statutes 1889, against a remainderman 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. Land Co., 157 Mo. l. c. 65, 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 remainderman, 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. 134; Colline R. E. & B. Association v. Johnson, 120 Mo. l. c. 299, 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, Revised Statutes 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 be in force in this State concerning actions affecting real estate and judgments rendered in such suits shall have the force and effect as therein provided.

"Sec. 3. If the defendant or defendants in suits brought under the provisions of this act shall make default, or appearing, shall by answer admit the fact as stated in the petition and consent to judgment as prayed for, the plaintiff shall be adjudged to pay all costs of the suit.

"Sec. 4. All acts and parts of acts inconsistent herewith are hereby repealed.

"Sec. 5. This act being remedial in its character and taking the place of statutes which failed in their object, creates an emergency within the meaning of the Constitution; therefore, this act shall take effect and be in force from and after its passage."

Thus the following radical differences between the provisions of section 2092 and the Act of 1897, at once present themselves:

1st Section 2092 authorizes an action only in favor of one who is in possession claiming complete title, against one who is out of possession and who is claiming adverse to the estate of the one in possession. Whereas, the Act of 1897 authorizes an action by any one who claims any kind of an estate or interest, whether the whole or only a limited estate, and whether it be adverse or subordinate to the estate of the other, and whether...