Morrison v. Turnbaugh

• Decision Date: 21 December 1905
• Parties: MORRISON et al. v. TURNBAUGH.
• Court: Missouri Supreme Court

91 S.W. 152

192 Mo. 427

MORRISON et al. v. TURNBAUGH.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. APPEAL—OBJECTIONS IN LOWER COURT TO ADMISSIBILITY OF EVIDENCE — RULING ON OBJECTIONS.

On trial of an equity cause, objections being made to the admissibility of evidence, the court in some cases ruled "Proceed," and in other cases "Subject to objection." Held, that such rulings are indefinite and insufficient to inform the appellate court of the disposition made of the evidence.

2. EQUITY — HEARING — RECEPTION OF EVIDENCE —RULINGS ON OBJECTIONS.

On the trial of an equity cause, the court should make definite rulings on objections to the admissibility of evidence.

3. APPEAL — REVIEW OF EVIDENCE IN EQUITABLE PROCEEDINGS.

Where all the evidence is before the Supreme Court on appeal, it is its duty to consider the decree with reference to the competent proof, regardless of questions relating to mere admissibility, and it is not necessary to pass on rulings nisi on the admission or rejection of evidence.

4. PROCESS — PUBLICATION — ISSUANCE AND RETURN OF SUMMONS AS CONDITION PRECEDENT.

Under Rev. St. 1879, § 3494, providing that in suits for the enforcement of liens against real property, if plaintiff or other person for him shall allege in his petition or file an affidavit stating that part or all of the defendants are nonresidents of the state, the court shall make an order for a publication, it was not necessary that a summons should have been issued and a non est returned before an order of publication might be issued.

5. DOMICILE—SUFFICIENCY OF EVIDENCE.

Evidence held insufficient to show that defendant in an action was a resident of the state at the time of the publication of the summons.

6. TAXATION — COLLATERAL ATTACK ON TAX TITLE.

That the levy of taxes on a quarter section of land, designating it as "lots 1 and 2" of such quarter section, and that the order of publication in the suit for taxes, and the judgment, sale, and deed, all showed that the tax was against the lots together, did not render the proceedings void or the subject of collateral attack.

7. SAME.

Where, in a suit for taxes, the petition named the defendant by his proper name, and the order of publication of summons and proof of publication had the proper name, the fact that the middle initial "M." was pretermitted in the judgment and in the tax deed, and "W." inserted in lieu thereof, did not render the judgment and deed void, especially where questioned collaterally by one who purchased from the former owner with knowledge of the tax title.

8. SAME—ACTION TO QUIET TITLE—LACHES.

Where the purchaser of a tax title had been paying taxes on the land for about 25 years, and the original owner and his grantee acquiesced in the tax judgment, sale, and deed, such acquiescence and want of diligence, though not a bar to an action to quiet title may be taken into consideration by the court.

9. DEEDS — SUFFICIENCY OF IDENTITY OF GRANTOR.

Evidence held sufficient to support finding of the lower court that the identity of the grantor in a deed was not established.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by James M. Morrison and another against Thomas B. Turnbaugh. From a judgment for defendant, plaintiffs appeal. Affirmed.

Robert L. Wilson, for appellants. Mozely & Wammack, for respondent.

LAMM, J.

This is a suit to quiet title to the N. W. ¼ section 6, township 28, range 12, in Stoddard county, and was treated as an equity case. The petition sets forth that James M. Morrison has a curtesy interest in the land; that his coplaintiffs are his children, and have interests in remainder, subject to said curtesy, and claim title; that he is their trustee; that plaintiffs have been in open, notorious, adverse, exclusive, and continuous possession of the land under claim and color of title for more than 10 years last past; and that defendant claims some title, estate, or interest, the nature of which is unknown to plaintiffs, and cannot be described, except that it is adverse and prejudicial to plaintiffs. The answer is in form of a general denial, coupled with a claim of ownership by defendant, and further alleging that plaintiffs' claim is based on a deed from one G. M. Johnson of Jackson county, Ill., but that "the witness thereto" and the notary acknowledging said deed were unacquainted with him and did not know the grantor to be G. M. Johnson; that he was not the G. M. Johnson who at one time owned the land, and "had no connection with" him; and that the said deed was void, and ineffective for the purpose of conveying any title to the premises. The replication put in issue the new matter in the answer. On pleadings thus outlined the trial was had and a decree entered in favor of defendant in October, 1902, from which plaintiffs duly appeal.

It appeared at the trial that George M. Johnson held a patent to the land from the government, date undisclosed, and it was admitted he was the common source of title. It stands admitted likewise that James M. Morrison is the husband of Ida A. Morrison, deceased, and that his coappellants are their children. Mrs. Morrison's will, probated in Cape Girardeau county in 1899, was introduced in evidence and established the fact that James M. Morrison was testamentary trustee of his coappellants, and that they were remaindermen in all real estate of which testatrix died seised. No proof was introduced sustaining the allegation in the petition of appellants' possession for the statutory period of 10 years. To the contrary, their title, as alleged in the answer, was shown by the proofs to be solely based on a purported deed from George M. Johnson to said Ida A. Morrison in October, 1897, presently to be considered. Possession was straightway taken by Mr. Morrison under this deed on behalf of his wife, then alive, and he deadened some timber, cleared some ground, and built two houses, afterward destroyed by fire. So that the statute of limitations is not in the case; because there was no possession prior to 1897 in appellants or their testamentary ancestor under color of title, and no such possession as disseisors that could have ripened into title by limitation. On the other hand the statute of limitations is not in the case on respondent's side; for while respondent claims ownership, yet he does not plead the statute of limitations as creating title in him. In fact, the land up to 1897, at least, was wild, uninclosed timber. Respondent had cut and sold some timber therefrom, since 1880, but his claim of title is based exclusively on tax proceedings begun in the circuit court of Stoddard county against George M. Johnson, ripening into a judgment, a sale, and a sheriff's deed to him in 1880, presently to be considered.

Not losing sight of the foregoing admissions and uncontroverted facts, the case made on the residue of the evidence is as follows:

Appellants produced in evidence a warranty deed from George M. Johnson to Ida A. Morrison, consideration $200, dated October 2, 1897, and recorded December 13, 1897 (wherein the grantor is described as "of the county of Jackson, state of Illinois, a widower, party of the first part"), conveying the real estate in question. This deed is signed thus:

                             his
                "George  M.   X    Johnson," and bears the
                             mark
                

following earmark: "Signed, sealed, and delivered in the presence of Robert L. Wilson." It was acknowledged on the day of its date by John F. Woody, a notary public of Cape Girardeau county who certified, inter alia, as follows: "On this 2d day of October, 1897, before me personally appeared George M. Johnson, a widower, to me known to be the person described in, and who executed the foregoing instrument, etc." This deed was objected to by respondent, "because not executed by George M. Johnson, who at one time owned this land, and because there was no witness to his mark." On which objection the court ruled thus: "Subject to objection."

Appellants next offered the will of Ida A. Morrison and the probate thereof in the common pleas court of Cape Girardeau county. To the introduction of this will respondent objected that she had no title, and therefore conveyed none, and because "the will had not been recorded in this county [Stoddard] where the lands are situate." On this objection the court ruled thus: "Proceed." The will is lengthy. Its terms are immaterial, further than that it shows, as said, that James M. Morrison is the trustee for testatrix's and his own children, his coappellants, of all testatrix's real estate.

James M. Morrison, being produced and sworn as a witness, testified in chief that he knew defendant, Turnbaugh; that he knew the property in controversy. On being asked whether at the commencement of the suit defendant claimed any interest in the premises, he answered: "He claimed it, but I didn't recognize it." On being asked what information he got of respondent's claim, he answered, "I looked in the records," and continued: "Yes, sir; he claimed to own the land. He claimed under a sheriff's deed —tax title." On cross-examination he said that he saw on the records that respondent had no title; that the sheriff's deed was on record at the time; that he did not think the sheriff's deed was worth anything; that he knew George M. Johnson since '66; first saw him in Jackson, Mo.; afterwards saw him in Stoddard county. Witness here described his looks as a medium-sized man about 30 or 31 years old, dark-haired when he first knew him. When he saw him last he was aged 66 or 67, and his hair was tinged with gray, that he weighed about 155 pounds, had gray eyes and a brunette complexion. On being asked, "After you became acquainted with him in 1866, how long was you acquainted?" He answered that he stayed around—lived in Iron county; that he came down and said that he owned this land in 1868. He lost sight of him in 1870; last saw him in 1897; had not seen him from 1870 to 1...