Miller v. Corpman
| Decision Date | 29 December 1923 |
| Parties | ANNA V. MILLER et al. v. H. C. CORPMAN et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Mississippi Circuit Court; Hon. Frank Kelly Judge.
Affirmed.
J L. Fort and H. S. Green for appellants.
(1) If Mrs. Burrus ever had a dower interest in this land her right was barred before she deeded the same to plaintiffs under her quit-claim deed. Jodd v. Mehrtens, 262 Mo. 391. There is no evidence that she ever had a dower assigned to her, and her right to have the same done was barred by the statute when she made the quit-claim deed to plaintiffs. R S. 1919, sec. 359. (2) A void tax deed creates color of title. Dunnington v. Hudson, 217 Mo. 93. (3) The acts of defendants in selling timber off of this land were acts of ownership. Keaton v. Hamilton, 277 Mo. 540. (4) No action for the recovery of land, or the possession thereof, shall be commenced by any person unless it appears that plaintiff, or some person under whom he claims, was seized or possessed of the premises within ten years before the commencement of the action. R. S. 1919, sec. 1305. Acts of ownership under this section need not occur every day, but they should be of such frequency as to apprise the owners that his seizin was interrupted and his title in danger. Gordon v. Park, 202 Mo. 236; Robinson v. Claggett, 149 Mo. 152. The right to sue for land under this section is barred in ten years, except as to disability of minority, insanity, imprisonment and marriage, as limited in Sections 1307 and 1310. De Hatre v. Edmonds, 200 Mo. 246. Ignorance of right does not exempt one from the running of the statute. Farris v. Coleman, 103 Mo. 352. Color of title is not necessary to originate ownership by limitation. Quick v. Rufe, 164 Mo. 408. Adverse possession not only bars recovery, but vests perfect title in the adverse holder. Franklin v. Cunningham, 187 Mo. 184, 196. If one takes possession of another's land by mistake, claiming ownership, his possession is adverse. Mangold v. Phillips, 186 S.W. 988. The bringing of this suit did not arrest the running of the ten-year Statute of Limitations, because it did not seek to recover the land or its possession. Pepper v. Company, 281 Mo. 562. The taking of a deed from Walter Phelan, attorney in fact for Anna C. Jeffers and S. P. Jeffers, her husband, by defendants, for the land in suit, did not have the effect to suspend the Statute of Limitations from running against plaintiffs. Deck v. Wofford, 282 Mo. 564. (5) The thirty-year Statute of Limitations is a statute of repose, so that disabilities will not prevent its running. Nichols v. Hobbs, 197 S.W. 260. Acquiescence of plaintiffs, as record owners of the land, in the tax judgment, sale and deed, against the heirs of C. Alonzo Kitchen, for twenty-five years, is not entirely without significance, for the law rewards the diligent. Morrison v. Turnbaugh, 192 Mo. 427. Defendants acquired title to the land in suit before plaintiffs paid the taxes thereon and before the suit was begun or contemplated under what is known as the thirty-year Statute of Limitations. R. S. 1919, sec. 1311. Nonpayment of taxes need not be established by direct and positive proof, but may be inferred from other facts and circumstances. Rollins v. McIntire, 87 Mo. 496; Davis v. Dawson, 273 Mo. 499. The title of defendants vested ipso facto in thirty-one years if they had lawful possession for one year in that time. Campbell v. Greer, 209 Mo. 199; Grain v. Peterman, 200 Mo. 295. Lawful possession means that possession was obtained in a lawful manner. Laclede v. Epright, 265 Mo. 210; Brannock v. McHenry, 252 Mo. 1; Weir v. Company, 186 Mo. 389; Dunnington v. Hudson, 217 Mo. 93. (6) C. Alonzo Kitchen died in the year 1870, and at the time of his death Anna C. Kitchen, later Anna C. Jeffers, was his only child, and at the time the title first descended to her she was within the age of twenty-one years, and she failed to bring an action to recover this land until after more than twenty-four years after her cause of action accured and plaintiffs, her children, failed to bring an action to recover this land for more than three years after the expiration of said twenty-four years, and, therefore, this action was barred under the provisions of Sec. 1307, R. S. 1919. De Hatre v. Edmonds, 200 Mo. 246. Disabilities are not cumulative; the statute begins to run on removal of the first, regardless of the second, whether both disabilities exist in one or in different persons. Robinson v. Allison, 192 Mo. 366; Smelser v. Meier, 196 S.W. 25. (7) If an ancient deed shown to be otherwise competent recites an authority under which it purports to be executed, or recites facts equivalent to a power, the recital is prima-facie evidence of the authority, provided the recital shows the principal's name, and provided also acts of ownership have been done under the instrument. 1 Ency. Ev. 878. From the nature of the case, where the instrument is lost, the evidence of execution must often be partially or wholly circumstantial. Thus when otherwise competent, the act, declarations and admissions of the parties, the fact that such deed has been recorded, the long-continued and undisputed possession of the premises by the grantee claiming under the deed, and recitals in other deeds may, under proper circumstances, be competent evidence of execution. 4 Ency. Ev. 207; Wigmore on Ev., sec. 2144; Reuter v. Stackart, 54 N.E. 1014; O'Donnell v. Johns, 13 S.W. 376. The recitals in this deed of the power of attorney, the power of attorney being in the same chain of title, is competent secondary evidence of the existence of the power of attorney. 4 Ency. Ev. 213; Baeder v. Jennings, 40 F. 199; Carver v. Jackson, 4 Pet. 1; Grayson v. Laughlin, 52 S.W. 121; Dunn v. Eaton, 23 S.W. 163; Dosorris v. Campbell, 58 N.E. 1087; Deery v. Cray, 72 U.S. 795. This is clearly the deed of Walter Phelan, as attorney in fact, and of Walter Phelan, personally. Endsley v. Strock, 50 Mo. 508. The recitals in an ancient deed are discussed in Laclede v. Goodno, 181 S.W. 413. Where an instrument is ancient, and purports to have been signed-by an agent, it may be admitted without producing the power of attorney. Wilson v. Snow, 228 U.S. 217; Anderson v. Cole, 234 Mo. 6; Wright v. Hull, 94 N.E. 813; 1 Ency. Ev. 860; 4 Ency. Ev. 187. An ancient deed may be read in evidence without proof of the possession of the land conveyed by the deed. Long v. McDowell, 87 Mo. 197.
On February 2, 1915, plaintiffs Anna V. Miller and Susie Jeffers filed, in the Circuit Court of Stoddard County, Missouri, a petition against appellants H. C. Corpman and Maggie Corpman, to ascertain and determine the respective titles, interests, etc., of said parties in and to the southwest quarter of the southeast quarter of Section 28, in Township 28 of Range 10 east, located in Stoddard County. On the application of appellants, the venue was changed, and the case tried before the court without a jury, in Mississippi County.
Defendants answered, and admitted therein that they claimed to be the owners in fee simple of the real estate aforesaid. They deny every other allegation in plaintiffs' petition. They further aver that in 1887, H. C. Corpman purchased all the outstanding title, if any they had, of S. P. Jeffers and Annie C. Jeffers, father and mother of plaintiffs, Annie v. Miller and Susie Jeffers, both of whom are dead; that said S. P. Jeffers and wife executed and delivered to Walter Phelan a power of attorney vesting in him authority to convey the land aforesaid, and that, pursuant to said power vested in him, said Walter Phelan sold and conveyed said land to defendant H. C. Corpman. They further aver that they have acquired title to said real estate by adverse possession under the ten- and thirty-year Statute of Limitations.
The reply is a general denial of the new matter contained in said answer.
On October 22, 1917, the court found that plaintiffs are each entitled to an undivided one-fourth interest in said land, and that the defendants are jointly entitled to an undivided one-half interest therein. Judgment was entered in accordance with the above findings. Motions for a new trial and in arrest of judgment were filed by defendants, overruled, and the cause duly appealed by them to this court.
It was agreed between the parties in interest that the title to the land in controversy passed out of the United States Government, and into the State of Missouri, on March 16, 1869, and that C. Alonzo Kitchen was the common source of title, and acquired the above land, in his name, as above described, on September 21, 1869. It was admitted by plaintiffs that Mrs. Anna C. Jeffers was the only child of C. Alonzo Kitchen, at the time of the pendency of the tax suit, which resulted in the tax deed, offered in evidence by defendants, to Charles E. Stokes.
Clara B. Burrus testified, in substance, that she was the grandmother of plaintiffs; that the mother of plaintiffs was Anna C. Jeffers; that said Anna C. Jeffers was the daughter of witness by Cornelius Alonzo Kitchen; that Mrs. Anna C Jeffers was the only child of that marriage; that she (witness) executed the quit-claim deed to Anna V. Miller and Susie Jeffers, who are sisters; that both plaintiffs are daughters of said Anna C. Jeffers; that Price Jeffers was the husband of said Anna C. Jeffers; that the latter died in 1901, and Price Jeffers died in April, 1914; that the husband of witness owned lands in Stoddard, Butler and Dunklin counties, in Missouri; that she could not say her husband was ever in possession of the land in question; that her husband, Alonzo Kitchen, died in the Spring of 1870; that she had no recollection of his claiming the above...
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