Missouri State Life Ins. Co. v. Russ

• Citation: 214 S.W. 860
• Decision Date: 27 September 1919
• Docket Number: No. 20281.,20281.
• Parties: MISSOURI STATE LIFE INS. CO. v. RUSS.
• Court: Missouri Supreme Court

214 S.W. 860

MISSOURI STATE LIFE INS. CO. v. RUSS.

No. 20281.

Supreme Court of Missouri, Division No. 1.

September 27, 1919.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by the Missouri State Life Insurance Company against J. G. Russ. From judgment for defendant, plaintiff appeals. Affirmed.

Jourdan, Rassieur & Pierce and John A. Hope, all of St. Louis, for appellant.

Arthur L. Oliver, of St. Louis, and J. R. Brewer, of Caruthersville, for respondent.

RAGLAND, C.

This is a statutory action to determine title to 240 acres of land in Pemiscot county. The petition is conventional. The answer admits that the defendant claims title adverse to that claimed by plaintiff, denies the remaining allegations of the petition, and as an affirmative defense alleges that during the pendency of a certain former action between the defendant as plaintiff therein, and one Thomas B. Sims, as defendant to determine the title to the same lands, the plaintiff purchased all the right, title, and interest of said Sims in and to said lands; that by the final judgment in said cause said Sims was adjudged to have no right, title, or interest in or to said lands; and that the plaintiff herein as a lis pendens purchaser thereof is bound by said judgment and is estopped thereby. The answer also by way of cross-action alleges that the defendant is the owner of the land described in the petition, that plaintiff claims some interest therein adverse to defendant's rights, and prays the court to ascertain and determine the title and interest of the parties respectively, etc. The reply admits that plaintiff acquired the interest of said Sims by mesne conveyances, but denies the other allegations of the answer. It also admits that it claims title as alleged in the cross-bill, but in other respects denies the allegations thereof.

It was admitted on the trial:

"That the land in controversy is part of the swamp lands that were granted by the United States to the state of Missouri under swamp land grant of September 28, 1850, and that the title to the land duly passed from the United States to the state of Missouri by patent under the above swamp land grant, and thereupon the lands were granted and patented, in pursuance to the acts of the Legislature of the state of Missouri, to Pemiscot county; and that on September 1, 1858, Pemiscot county sold north half or northeast quarter of section 18, township 17, range 11 east, by due and proper certificate of entry to William G. Easley, who paid therefor the price provided by law, $1.25 per acre, and that on July 17, 1858, the said William G. Easley purchased from Pemiscot county the remainder of the land in controversy, to wit, northeast quarter of section 8, township 17, range 11 east, by due and proper certificates of entry for which he paid the price provided by law, $1.25 per acre."

It was further admitted that there was a register and receiver of swamp lands at the dates above mentioned, and that they kept the books showing what land was sold, when sold, price per acre, and to whom sold, and that such books constituted part of the records of Pemiscot county. It thus appears that William G. Easley acquired from Pemiscot county the equitable title to said land, and that said title was a record title.

The evidence discloses that both parties claim through said Easley; hence he is the common source of title. The plaintiff claims through the following deeds of conveyance: (1) Sheriff's tax deed to Virg P. Adams, dated March 10, 1880, purporting to convey the interest of William G. Easley to the land in controversy, duly recorded in the office of the recorder of deeds of Pemiscot county, October 1, 1880; (2) deed from Virg P. Adams and wife to Benjamin F. Barcroft, dated September 29, 1885, recorded November 19, 1885, which deed recites that it was made in lieu of a previous deed which had been made in 1881 and which had been destroyed in the burning of the courthouse; (3) mortgage deed from Benjamin F. Barcroft and wife to Thomas B. Sims, dated September 15, 1881, recorded on the same date; (4) deed from Benjamin F. Barcroft by mortgage to Thomas B. Sims, made Pursuant to foreclosure sale under the abovementioned mortgage, dated December 14, 1887, recorded December 24, 1887; (5) deed from Thomas B. Sims and wife to J. E. Franklin, dated May 26, 1908, recorded May 28, 1908; (6) deed from J. E. Franklin and wife to John A. Hope, dated November 7, 1908, recorded January 20, 1909; (7) deed from John A. Hope and wife to Z. E. Franklin, dated September 22, 1910, recorded September 23, 1910; (8) deed of trust from J. E. Franklin and wife to John W. McFarland, trustee, dated June 14, 1913, recorded May 5, 1914, conveying the land in controversy with other lands to secure the payment of a note of $30,000; (9) deed from John W. McFarland as trustee to the plaintiff, dated October 13, 1914, and duly recorded, which deed was made pursuant to the power of sale contained in the above-mentioned deed of trust.

The defendant's title is deraigned through the following deeds: (1) Quitclaim deed from William G. Easley and wife to James B. Easley, dated April 13, 1873, and recorded on the following day; (2) quitclaim deed from the heirs of James B. Easley to defendant bearing different dates in the year 1906 and duly recorded; (3) patent from the county of Pemiscot to the defendant dated the 4th day of April, 1916, which patent recites that William G. Easley had made full payment for said lands, and that defendant, having acquired the title of said Easley by mesne conveyances, is entitled to a patent therefor.

The sheriff's deed in plaintiff's chain of title recites, among other things, that a judgment was rendered in the circuit court for Pemiscot county at the relation and to the use of the collector of revenue thereof and against William G. Easley for the sum of $11.39 for certain delinquent state, county, and special taxes which were adjudged to be a lien on said real estate; that special execution was awarded thereon; and that thereunder the sheriff sold said lands during the November term, 1879, of the circuit court for said county. As the statutes then in force did not provide for a regular November term for the circuit court for Pemiscot county, the plaintiff introduced a number of witnesses who claimed to have been present at the sale of said lands by the sheriff in November, 1879, and who testified that said circuit court was actually in session.

The courthouse in Pemiscot county was destroyed by fire December 2, 1882, and with it all the records in the office of the recorder of deeds and the clerk of the circuit court. After the passage of the act of 1907 (Laws 1907, p. 271) relating to abstracts of title as evidence, Carleton's Abstracts were duly certified by the judges of the circuit and county courts of Pemiscot county in accordance with the provisions of said act. To prove the execution and record of the deed in his claim of title from William G. Easley to James B. Easley, defendant offered an entry appearing with seven others, relating to as many different conveyances, under the heading, "Memoranda," on a blank page between the cover leaf and the first regularly ruled page in one of the volumes of said abstracts, as follows:

"William G. Easley & wife. QC. Deed to Jas. B. Easley * * * to all the right, title and interest and claim that we or either of us have in and to any and all lands in the county of Pemiscot, and state of Missouri, as will appear from the register or receiver's books of said county. * * * Deed executed April 13, 1873. Filed for record April 14, 1873. Cert of Ackmt. relinquishes no dower, was taken before J. P. in Tenn. But official character properly certified to."

The plaintiff objected to the introduction of this entry in evidence for the following reasons: (1) The leaf of the abstract book shows on its face that the entry was not made by the abstracter in the usual, regular, and ordinary course of the business; (2) the memorandum shows that, if the acknowledgment was taken at all, it was taken by a justice of the peace of Tennessee, and hence was not admissible to record in Pemiscot county, and that, even if such deed was made, it left William G. Easley as the record owner until 1879, when the land was sold and conveyed under the tax deed; (3) there is no description sufficient to operate as a conveyance of said land; (4) the memorandum shows on its face the deed was without consideration and was therefore void as against the tax collector of Pemiscot county, who previously sued and got a judgment against the record owner; and (5) the memorandum shows on its face that, if there was any such deed executed, there was no seal by grantors as required by law at that time. The objection was overruled and the entry received in evidence.

Over the objections of the plaintiff, the record proper and bill of exceptions made in the trial of a certain cause wherein J. G. Russ, the present defendant, was plaintiff, and T. B. Sims, predecessor in title of the plaintiff, was defendant, were admitted in evidence. This record shows that that suit was instituted in the circuit court for Pemiscot county on May 5, 1906, to determine the title to the same lands involved in the present controversy; that the venue of said cause was changed to St. Genevieve county on the 18th day of July, 1906; and that the circuit court for said county on May 1, 1909, rendered judgment in said cause in favor of the defendant therein, Thomas B. Sims, and against the defendant herein, plaintiff therein, which judgment decreed that said Sims was the owner of said lands and that said. Russ had no estate, right, title, or interest therein. On the same day, Russ duly appealed from said judgment, and on the 30th day of June, 1914, the same was by this court reversed, and judgment was rendered here in favor of Russ, adjudging and decreeing that he was the owner of said land, and...