Miller v. Boulware

• Decision Date: 31 March 1916
• Citation: 184 S.W. 1148,267 Mo. 487
• Parties: WARREN M. MILLER et al., Appellants, v. GEORGE BOULWARE et al.; WILLIAM T. COX, Intervenor
• Court: Missouri Supreme Court

184 S.W. 1148

267 Mo. 487

WARREN M. MILLER et al., Appellants, v. GEORGE BOULWARE et al.; WILLIAM T. COX, Intervenor

Supreme Court of Missouri, Second Division

March 31, 1916

Appeal from Osage Circuit Court. -- Hon. R. A. Breuer, Judge.

Reversed and remanded (with directions).

Vosholl & Monroe for appellants.

(1) The court committed error when it allowed Cox to become a party to this suit, thereby amending in effect the proceedings, not only against appellant, but all defendants. This suit was originally commenced by appellant against George Boulware, if alive, or if dead, his unknown heirs or devisees, and service of process upon them was by publication. An amendment of the proceedings was made by making Cox a party, which could not be done after service by publication. Smith v Kiene, 231 Mo. 232. (2) No judgment that could have been rendered in the original suit could in any way affect the rights Cox could have had. Whatever claims he could have had could be determined in a separate action between himself and Miller. No right or title could be determined save that asserted by plaintiff or defendants in original action. Graton v. Land Co., 189 Mo. 332; Chaput v Bock, 224 Mo. 81. (3) There was no issue between plaintiff and Cox and the judgment rendered does not bind them as against each other. Bank v. Bartte, 114 Mo 276; Boogher v. Frazier, 99 Mo. 325; McMahon v. Geiger, 73 Mo. 145; O'Rourk v. Railroad, 142 Mo. 342.

Gove & Davidson for respondents.

(1) The application and motion of Cox to be made a party defendant was properly sustained. Greene v. Conrad, 114 Mo. 651; Railroad v. Hattod, 102 Mo. 45; Valle v. Cerre's Admr., 36 Mo. 584; Secs. 1732, 1733, 2541, R. S. 1909. (2) This is a suit under our statute to quiet title which though not technically a suit in equity is designed to determine all the questions whether of law or equity relating to the respective title of the parties and to put at rest the controversy. Wheeler v. Land Co., 193 Mo. 287. The pleading makes it a suit at law and the issues could have been tried by jury, which was waived by the parties. Lee v. Conrad, 213 Mo. 404; Minor v. Burton, 228 Mo. 583. (3) Plaintiff has not been injured by the action of the court in allowing Cox to become a party defendant, and the error if any was committed, does not affect the merits of the case, and the Supreme Court will disregard such error as produces no injury. Sec. 2082, R. S. 1909; Logan v. Field, 192 Mo. 70. (4) There is no error materially affecting the merits of the action. Freeland v. Williamson, 220 Mo. 229; Stumpe v. Kopp, 201 Mo. 412; Manse v. Boerr, 222 Mo. 115; Berry v. Railroad, 214 Mo. 293.

ROY, C. Williams, C., concurs.

OPINION

ROY, C. --

This is a proceeding to quiet title under section 2535, Revised Statutes 1909. The petition among other things contains the following:

"For cause of action plaintiff says that he is the absolute owner of the south one-half of the northwest quarter, section 35, township 43, range 7, all situate in Osage County in the State of Missouri, he and those under whom he claims having acquired title to said realty by actual, peaceable, open and continuous and adverse possession thereof for more than thirty years next preceding the filing of this suit and under claim and color of title thereto.

"That the above named George Boulware is the apparent owner of record to said land by deed duly entered of record in Osage County, Missouri, deed records, by purchase from one George Mann, who entered said land in the year 1835 as shown by the Osage County records. That whatever title said Boulware ever had has long since passed away by reason of long possession under claim of title as aforesaid."

It prays for a determination of the rights of the parties, but does not ask for the possession of the land.

Respondent Cox, on his own motion, over plaintiff's objection, was made a party defendant and filed an answer in which he alleged title in himself to a part of the land (describing that part) by adverse possession. Plaintiff moved to strike out that answer but the motion was overruled. There was judgment in favor of respondent as to the part claimed by him and judgment in favor of the plaintiff as to the residue. The plaintiff has appealed.

Defendant Cox, respondent here, was improperly made a party to this suit. He claims the right to be made such party under sections 1732, 1733 and 2541, Revised Statutes 1909.

The writer was at first of the opinion that the latter section authorized Cox to be made a defendant, but his attention has been called to the fact that such section was originally enacted in 1873 (Laws 1873, p. 49, sec. 3) as a part of an act entitled "An act to establish evidence of title to real property and to restore the records of the same, and to provide for the recording of deeds." Section 1 of that act provided that persons whose deeds or other evidence of title are lost or destroyed may have their title to the land adjudged to them. Section 3, the original of our present section 2541, provides that any person claiming an interest or estate in the lands adverse to that alleged in the petition may be made a party defendant, and that the decree rendered in such cause shall be conclusive against the parties to the suit, and shall be primafacie evidence against all other persons.

In the connection in which section 2541 appears in our Revised Statutes it seems to apply to proceedings under section 2535 to quiet title. Section 8086, Revised Statutes 1909, provides that "the provisions of the Revised Statutes, so far as they are the same as those of prior laws, shall be construed as a continuation of such laws and not as new enactments."

Section 2541 had no application to section 2535 prior to the revision, and, for that reason, can have none now.

Section 1733, Revised Statutes 1909, provides that persons who are united in interest must join as plaintiffs, and that, in case of a failure of one of such persons to consent to be plaintiff, he may be made a defendant. That section does not justify making Cox a defendant herein. He is not united in interest with any other party to the suit.

Section 1732 does not authorize making the respondent a party defendant herein. There are three classes of persons provided for in that section:

1. Those having or claiming an interest in the controversy adverse to the plaintiff.

2. Those who are necessary parties to a complete determination or settlement of the question involved therein.

3. The landlord and tenant and "any person claiming title or a right of possession to real estate" may be made defendants in a suit for the possession of such real estate.

We will consider those classes of persons in the order named.

I. This respondent is not of the first class.

In Cape Girardeau S.W. Ry. Co. v. Hatton, 102 Mo. 45, 14 S.W. 763, the county judges had executed a deed purporting to convey a large tract of land from the county to the railroad company. That deed was placed in escrow in the hands of one of the judges. The railroad company sued the judges of the county court to determine its rights to the deed. It did not make the county a defendant. It was held that the county was properly...