Morgan v. Pott

• Decision Date: 16 April 1907
• Citation: 124 Mo. App. 371,101 S.W. 717
• Parties: MORGAN et al. v. POTT.
• Court: Missouri Court of Appeals

101 S.W. 717

124 Mo. A. 371

MORGAN et al. v. POTT.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

1. MORTGAGES—PAYMENT—PRESUMPTION.

Where a mortgage on land in controversy had never been foreclosed, and more than 20 years had elapsed since its execution, it would be presumed to have been paid, as provided by Rev. St. 1899, § 4277 [Ann. St. 1906, p. 2353].

2. TAXATION—TAX DEEDS — EVIDENCE — PARTIES.

Where plaintiffs were not parties to a suit to recover delinquent taxes on the land in controversy, a tax deed executed pursuant to such proceedings was inadmissible against them in an action for trespass on the land.

3. ADVERSE POSSESSION — COLOR OF TITLE — TAX DEEDS.

A tax deed to land is sufficient to furnish color of title.

4. LOGS AND LOGGING — SALE OF TIMBER — DEEDS.

Trees standing on land constitute a part of the land, the title to which may be conveyed by a statutory deed.

5. ADVERSE POSSESSION — COLOR OF TITLE — HIATUS.

Where there was a hiatus in the chain of paper title to land under which defendant claimed, such defect was fatal to defendant's claim of adverse possession as to so much of the land as was claimed only by color of title.

6. SAME—ACTS OF OWNERSHIP—CUTTING TIMBER —PAYMENT OF TAXES.

Where defendant had not actual possession of the land in controversy, and neither the owner nor the person under whom he claimed had color of title, defendant's acts in cutting timber from the land, protecting it from trespassers, and paying taxes thereon, were insufficient to constitute adverse possession.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Ruth Morgan and others against L. J. Pott. Judgment for plaintiffs, and defendant appeals. Affirmed.

The action is to recover damages for an alleged trespass in cutting timber on the N. W. ¼, section 11, township 19, range 11, in Pemiscot county, Mo. The petition alleged title and possession to the land in plaintiffs. The answer was a general denial and an affirmative plea that the Pascola Stave Company was in possession of the land and the owner of the timber standing and growing thereon, and set out the conveyances through which the timber was conveyed to the said stave company. The affirmative allegations of the answer were put at issue by a reply. The issues were tried to the court sitting as a jury. The defendant, at the close of all the evidence, requested the court to state its conclusion of the facts in writing. The court did not do this, but the following finding of facts appears in the judgment: "That the defendant, during the months of September, October, and November, 1904, wrongfully entered upon the N. W. ¼ of section 11, in township 19 N., range 11 E., in Pemiscot, Mo., and did then and there cut down and carry away timber standing and being on said land; that at said times the plaintiffs were the owners in fee, and in the constructive possession of said land; and that the plaintiffs were the owners of said timber and trees, and that the defendant did carry away said timber and did convert and dispose of the same to his own use." The court assessed the value of the timber at $162.50, and rendered judgment accordingly.

Plaintiffs and defendant claim title from a common source, namely George Kyser, to whom the lands were patented December 21, 1869. Plaintiffs' evidence shows that Kyser died intestate about the year 1890, and that they are his sole heirs. In 1903 plaintiffs brought a suit, in the Pemiscot circuit court, against Abram R. Byrd and Ruddle McCombs, to acquire title to the lands. At the March term, 1904, of said court, the parties appeared, and the cause was heard by the court, who adjudged and decreed as follows: "That the defendants have no right, title, claim, or interest therein. The premises considered, it is ordered, adjudged, and decreed by the court that the absolute legal and equitable title to the above described real estate be, and the same is hereby, vested in the plaintiffs, and that said defendants and those claiming under them are hereby precluded, estopped, and forever debarred from setting up any right, title, claim, or interest in or to said lands." This judgment was read in evidence by plaintiffs, over defendant's objection. Plaintiffs introduced evidence tending to show the quality, quantity, and value of the timber cut and removed by the Pascola Stave Company, a partnership of which defendant is a member and the active manager. Defendant offered to show by competent evidence that on June 22, 1879, Kyser and wife executed and delivered to Benj. F. Barcroft their mortgage deed to the land, in consideration of $600, which deed was duly recorded. On the objection of plaintiffs, the mortgage was excluded as evidence. Defendant read in evidence a tax deed, dated September 4, 1895, purporting to convey the interest of all the heirs of Benj. Barcroft (deceased) in and to the land to J. E. Franklin, the purchaser at the tax sale. The deed was recorded October 28, 1895. Franklin and wife, on October 26, 1897, conveyed to A. R. Byrd a tract of land containing 4,720-acres, including the land in dispute. On May 2, 1900, Byrd and wife conveyed an undivided one-half interest in the 4,720-acre tract to Ruddle McCombs. These deeds were duly acknowledged and recorded. On September 25, 1899, Byrd and C. W. Henderson, in consideration of $16,505.79, sold and conveyed to W. J. Lewis all the timber standing on the 4,720-acre tract, together with some other land, excepting from the conveyance the mulberry, pecan, and catalpa timber, and granted to Lewis 8 years in which to cut and remove the timber from said land, and the right to establish mills, tramways, roads, etc. This conveyance was duly acknowledged and recorded. On January 30, 1902, Byrd and McCombs, by an instrument reciting that the McMullin Lumber Company, a corporation, had acquired the interest of W. J. Lewis in the timber theretofore conveyed to him, sold, assigned, and conveyed to the said McMullin Lumber Company all the timber standing and growing upon said land, except the mulberry, pecan, and catalpa, and granted to said company time until January 1, 1910, in which to cut and remove said timber. This contract and conveyance was duly acknowledged and recorded. McMullin testified that the Chicago-Mississippi Land & Lumber Company in 1904 succeeded the...