Miller v. Proctor

• Decision Date: 08 April 1932
• Docket Number: No. 30054.,30054.
• Citation: 49 S.W.2d 84
• Parties: CLYDE MILLER, GAIL MILLER, LANCE MILLER and MAZIE CARTER v. J.R. PROCTOR, HANNAH E. PROCTOR and LAWRENCE HOGSETT, Defendants, J.R. PROCTOR and HANNAH E. PROCTOR, Appellants.
• Court: Missouri Supreme Court

49 S.W.2d 84

CLYDE MILLER, GAIL MILLER, LANCE MILLER and MAZIE CARTER v. J.R. PROCTOR, HANNAH E. PROCTOR and LAWRENCE HOGSETT, Defendants, J.R. PROCTOR and HANNAH E. PROCTOR, Appellants.

No. 30054.

Supreme Court of Missouri, Division Two.

April 8, 1932.

Appeal from Morgan Circuit Court. — Hon. H.J. Westhues, Judge.

AFFIRMED.

Embry & Embry for appellants.

(1) Plaintiffs did not show record title in themselves and did not show title by any other means. Plaintiffs must recover on the strength of their own title, and must show title, not a mere right to title. St. Louis v. St. Louis Blast Furnace Co., 235 Mo. 1; St. Louis v. Whitman Agricultural Co., 235 Mo. 29; Akins v. Adams, 256 Mo. 2; Hall v. Gallemore, 138 Mo. 638; Robinson v. Claggett, 149 Mo. 153. Plaintiffs made no attempt to show title in themselves by adverse possession or limitations. The only record title plaintiffs showed in evidence is a possible title to an undivided one-fourth interest in the land in controversy. This would not support a judgment in ejectment. See cases cited, supra. Plaintiffs rest their claim of title on records of Morgan County Circuit Court, showing that the land in controversy was set off in kind to their mother in a partition suit about 1882, and upon a statement filed for record by plaintiffs in 1913 that they claimed title. The partition proceedings were never recorded in the land records and said written statement was neither acknowledged nor proved as required by law, and plaintiffs offered no evidence that defendants or any of them had actual knowledge of any of the above. The partition proceedings, never having been recorded in the land records of Morgan County, was not binding on defendants. "In all cases where any court of record shall render final judgment, adjudging or decreeing a conveyance of real estate, or that any real estate pass, or shall render any final judgment quieting or determining the title to any real estate, the party in whose favor the judgment or decree is rendered shall cause a copy thereof to be recorded in the office of the recorder of the county wherein the lands passed or to be conveyed or the title to which is quieted or determined lie, within eight months after such judgment or decree is entered. If such judgment or decree be not so recorded, it shall not be valid except as between the parties thereto and such as have actual notice thereof, ..." Sec. 1585, R.S. 1919. The same statutory requirement runs back as follows: Sec. 2154, R.S. 1909; Sec. 3743, R.S. 1899; Sec. 6041, R.S. 1889; Sec. 2760, R.S. 1879. The notice that plaintiffs claimed title recorded in 1913, not being proved or acknowledged as required by law, was not entitled to record and being recorded improperly and without authority did not impart any notice to the defendants or any of them. Williams v. Butterfield, 182 Mo. 184; Bank v. Real Estate Co., 150 Mo. 576; Heintz v. Moore, 246 Mo. 226; Drzewiecki v. Hardware Co. (Mo. App.), 293 S.W. 444; Bishop v. Schneider, 46 Mo. 472. Even if the notice referred to when recorded imparted notice, it makes no reference to the partition proceedings, and it is undisputed that the deed records show no more than a possible undivided one-fourth interest in plaintiffs and not the entire title. (2) The court erred in admitting in evidence over objection of defendants, the partition proceedings in Morgan County Circuit Court, none of same having been recorded in the deed records and no showing of actual knowledge on part of defendants being made. Sec. 1585, R.S. 1919; Sec. 2154, R.S. 1909; Sec. 3743, R.S. 1899; Sec. 6041, R.S. 1889; Sec. 2760, R.S. 1879. (3) The court erred in admitting in evidence over objection of defendants the notice recorded in 1913, same not being acknowledged or proved as required by law before being entitled to record; the same imparts no notice and no showing of actual knowledge on part of defendants is made. Williams v. Butterfield, 182 Mo. 184; Bank v. Real Est. Co., 150 Mo. 576; Heintz v. Moore, 246 Mo. 226; Drzewiecki v. Hardware Co., 293 S.W. 444; Bishop v. Schneider, 46 Mo. 472. (4) Plaintiffs are barred by limitations. (a) Defendants and those under whom they claim have been in possession of land in controversy under color of title, claiming ownership since 1893. (b) Record title most favorably construed to plaintiffs shows them owning a possible undivided one-fourth interest, Proctor and those under whom he claims owning three-fourths interest, making nothing more than a possible tenancy in common between Proctor and those under whom he claims and the plaintiffs. The land was deeded again and again and encumbered many times. Hart v. Eldred, 264 Mo. 148; Smelser v. Meier, 271 Mo. 187; 2 C.J. p. 77, sec. 59; 2 C.J. p. 79, sec. 63; Swope v. Ward, 185 Mo. 316; Boyce v. Mo. Pac. Ry., 168 Mo. 583; Miller v. Rosenberg, 144 Mo. 292; Key v. Jennings, 66 Mo. 356; 3 Washburn on Real Property (5 Ed.) 162, sec. 33; 3 Washburn on Real Property (5 Ed.) 166, sec. 36.

A.J. Bollinger for respondent.

(1) Decree was properly admitted. State v. Trimble, 32 S.W. (2d) 571. (2) Court did not err in admitting notice. R.S. 1919, sec. 5368. (3) Limitations do not run until after expiration of life estate. 37 C.J. 161; Miller v. Bledsoe, 61 Mo. 96; Bradley v. Mo. Pac., 91 Mo. 499; Hall v. France, 165 Mo. 430; Faverly v. Hicks, 315 Mo. 451. (4) The decree in partition was the basis of title of all parties — defendants cannot question decree because it is common source of title. Sell v. McAnaw, 138 Mo. 272.

FITZSIMMONS, C.

This is an action in ejectment for certain land which plaintiffs claim to own as tenants in common. They allege that on and since April 2, 1928, they have been entitled to possession of the land, but that defendants unlawfully have withheld possession. The land is the following described tract in Morgan County, Missouri, to-wit: Commencing at a point one hundred and sixty-five feet east of the Southwest corner of the Northwest quarter of Section Twelve, Township 42, Range 16, running thence north three hundred and thirty feet, thence east four hundred and forty yards, thence south three hundred and thirty feet, thence west four hundred and forty yards to the place of beginning and containing in all ten (10) acres. The answer of defendants Proctor was a general denial, a plea of estoppel in that these defendants paid full value for the land without notice of plaintiffs' claim thereto, and a plea of the Statute of Limitations. Defendant Hogsett answered by general denial and that he was a tenant from year to year. The parties waived a jury and the court, upon trial, gave judgment for plaintiffs for possession and costs. A motion for a new trial was overruled and defendants appealed. Defendants urge that the trial court erred in admitting in evidence, over objection, a certain recorded notice and also a partition suit decree which had not been recorded in the recorder's office, and in not finding that plaintiffs' claim was barred by the Statute of Limitations.

H.R. Phillips, who died intestate December 26, 1864, was agreed to be the common source of title. Plaintiffs are the grandchildren of H.R. Phillips and the children of Mary F. Miller (a daughter of H.R. Phillips) and of Henry B. Miller, her husband. Mary F. Miller, the mother of plaintiffs, died July 1, 1887, and Henry B. Miller, the father of plaintiffs, died April 2, 1928. Plaintiffs claim right of possession from the date of the death of their father, and they began this action October 12, 1928. H.R. Phillips left as his heirs four children, including plaintiffs' mother, Mary F. Miller. The land in controversy in this suit is part of the land which H.R. Phillips owned at the time of his death and which passed by descent to his heirs. Mary F. Miller inherited a one-fourth interest in all the land of her father, Phillips. After the death of Phillips, Henry B. Miller, father of plaintiffs, bought the interests of two of the heirs of the Phillips land, and in 1881, Miller, as owner of an undivided one-half share, so acquired by purchase, and his wife, Mary F., as owner of an undivided one-quarter interest, received by inheritance, brought a suit against Nora Taylor, the owner of the remaining one-fourth interest, for the partition of all of the Phillips land. The Circuit Court of Morgan County, by interlocutory decree, entered October 22, 1881, found the interests of Miller and wife and of the defendant, Nora Taylor, to be as hereinbefore stated. Partition was decreed, and commissioners were appointed to make division. The commissioners, at the next term of court, reported that they had divided the land in kind between the parties according to their respective interests giving to H.B. Miller eighty-five acres, appraised at one-half the value of the premises in suit, giving to Mary F. Miller, wife of H.B. Miller and mother of plaintiffs in the instant action, ten acres appraised at one-fourth the value of the premises, and to Nora Taylor forty-five acres appraised at one-fourth the total value. The report of the commissioners accurately and fully described the allotment made to each of the parties. The ten-acre portion awarded to Mary F. Miller, mother of plaintiffs, is the tract from which plaintiffs are now seeking to eject defendants. The Circuit Court of Morgan County, by its final judgment in the partition suit, found that the report of the commissioners was in accordance with the interlocutory decree of partition, and that no exceptions to the report had been filed. The judgment then proceeded: "It is ordered and adjudged by the court that the report of said commissioners be in all things approved and that the partition by them made among the parties hereto be confirmed as binding and conclusive upon all parties to these proceedings and all persons claiming under them." We will examine later the objections made by defendants in this action to the admission in evidence of the partition suit records...