Nall v. Conover
| Decision Date | 27 November 1909 |
| Citation | 122 S.W. 1039,223 Mo. 477 |
| Parties | FANNIE NALL et al., Appellants, v. J. R. CONOVER |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Henry C. Riley, Judge.
Affirmed.
Jere S Gossom and S. J. Corbett for appellants.
(1) The evidence in this case shows a reliance upon a common source of title by both plaintiffs and defendant, Thomas C. Powell and this made a prima facie case for plaintiffs. Harrison Machine Works v. Bowers 200 Mo. 219; Finch v Ullman, 105 Mo. 255; Smith v. Lindsey, 89 Mo. 76; Dixon v. Hunter, 204 Mo. 390. Carleton's abstract of title and the entries therein relative to the title of the land in question, offered by plaintiffs, without objection on the part of defendant, shows a perfect title in plaintiffs. Graton v. Land & Lumber Co., 189 Mo. 322; Harrison Machine Works v. Bowers, supra; Dixon v. Hunter, supra. This rule applies to cases under section 650, supra, as well as to cases in ejectment. Harrison Machine Works v. Bowers, supra; Graton v. Land & Lumber Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 686. (2) Unless the defendant has acquired a better title from Thomas C. Powell than plaintiffs, then the court erred in not declaring the law as prayed for by plaintiffs at the close of all evidence in the case. From a casual observation of defendant's chain of title, it is obvious that he has totally failed to deraign his title back to Thomas C. Powell, the common source. There is nothing in the record that shows any conveyance from Thomas C. Powell, or from anyone else, to Jesse Huffman. Besides, if the defendant had intended to rely upon the title bond, he should have pleaded it. Couch v. Harp, 201 Mo. 457. (3) The court erred in permitting defendant, over plaintiff's objection, to offer evidence for the purpose of establishing title by the Statute of Limitations. The Statute of Limitations was not pleaded by defendant as a defense. Stevenson v. Smith, 189 Mo. 447. (4) The court erred in permitting defendant to offer testimony attempting to show that Powell had received money for the land from William Johnson's administrator, there being no estoppel pleaded by defendant as a defense. If defendant relied upon an estoppel he should have pleaded it. Estoppel must be pleaded. Unless estoppel is pleaded it has no place in the case. Estoppel in pais must be specially pleaded. Keeney v. McVoy, 206 Mo. 42; Avery v. Railroad, 113 Mo. 561; Swinhart v. Railroad, 207 Mo. 423; Bray v. Marshall, 75 Mo. 330; Noble v. Blount, 77 Mo. 242.
Ward & Collins for respondent.
(1) If Thomas C. Powell is the common source of title there was no admission to that effect; and appellants did not undertake to show it. Thomas C. Powell had only a register's receipt. Nothing more and nothing less; and it did not even entitle him to a patent. Our contention is (a) that Thomas C. Powell, from whom appellants' ancestor bought this land, is not shown by appellants to have any title whatever in the land, because they only show that under section 4 of the law, he had selected this land and did not show under section 5 of the above law that he had paid for the land so selected. And (b) if Thomas C. Powell had selected this land and then had paid the receiver for it under section 5, he would then only have an equitable title to the land and would only be entitled to a patent by complying with section 6 of the above law; and that without complying with that law and obtaining this patent, the said Thomas C. Powell was "not the absolute owner in fee simple" and these appellants claiming under him were not the absolute owners in fee simple, as pleaded in their petition in this case. The appellants having pleaded a fee simple title and failing to show any at all, or at best an equitable title, cannot maintain this suit. Stewart v. Lead Belt Co., 200 Mo. 281. Was the common source of title established by respondent? We admit the law to be that if the common source of title is agreed upon or is proven in the case, then all the defects incident to the title arising prior to the common source are defects common to both parties and are immaterial. Harrison Machine Works v. Bowers, 200 Mo. 235; Stewart v. Lead Belt Land Co., 200 Mo. 291; Charles v. White, 214 Mo. 211; Gage v. Cantwell, 191 Mo. 698. The question here is, did we show common source of title for appellants so as to cure the defects of appellants' title? It is true that this title bond was made to William Johnson by Thomas C. Powell, but it was also made by John H. Powell. Does that make Thomas C. Powell the common source of title? Maybe we are claiming our title from John H. Powell. We are not required to select Thomas C. Powell merely to make out a common source of title for appellants; if they get no title through Thomas C. Powell and we are claiming from John H. Powell, they can take no advantage of the defect in John H. Powell's title. Therefore, on that score, we did not make out the common source of title for them. (2) Millard Cotton's having been in the actual, peaceful, open, continuous, adverse possession of a part of this land under color of title to the whole tract and exercising acts of ownership over the whole tract for a period of more than 10 years, gave him fee simple title to it, which he had a right to convey, and did convey, through mesne conveyances to the defendant in this case. Sec. 4262, R. S. 1899; Callaway Co. v. Nolley, 31 Mo. 393; McDey v. Carr, 159 Mo. 648; Potter v. Adams, 125 Mo. 118; Bittle v. Mueller, 13 Mo. 335. The effect of a deed which creates color of title is to extend whatever acts of possession the grantee had of the land or any part thereof, to the whole tract described in the deed. Heiman v. Bennett, 144 Mo. 117; Crisper v. Hannaben, 50 Mo. 546; Mississippi Co. v. Vowels, 101 Mo. 225; Callahan v. Davis, 103 Mo. 444; Johnson v. Prewitt, 32 Mo. 553. Payment of taxes on the land, cutting and hauling fire wood, sawing timber and making rails on this land constitutes the "usual acts of ownership." Carter v. Hornback, 139 Mo. 238; Golterman v. Schiermeyer, 111 Mo. 404; Pharis v. Jones, 122 Mo. 125. (3) The Statute of Limitation runs against a county. Dunklin Co. v. Chouteau, 120 Mo. 575; Cunningham v. Snow, 82 Mo. 587; Simpson v. Stoddard Co., 173 Mo. 421; Palmer v. Jones, 188 Mo. 163; Callaway Co. v. Nolley, 31 Mo. 393. The Supreme Court has never said in a suit to determine title under said section 650 that it was necessary to plead the Statute of Limitation in order to prove it, and we maintain that there is nothing in that contention of appellants for two reasons: (a) Respondent's first count in his answer is a denial that plaintiffs are the owners of the land; an admission that defendant claims the title; and an averment that defendant is the owner in fee and plaintiffs have no right, title or interest in the land. Now, we maintain that under that count in the answer, we can prove any facts that either go to show that defendant has no title to the property or that go to establish title to the land in respondent. We have more here than a general denial. We have a special plea that the title is in us and state what title we have. We admit we claim title to the land. We deny specially appellants' title; and we maintain that we are entitled to prove the Statute of Limitations in this suit "to try, ascertain and determine the estate, title and interest of the plaintiffs and defendant herein respectively" as pleaded by appellants. Under a general denial in ejectment suits the defendant may show that plaintiffs never had a cause of action or that plaintiffs' claim is fraudulent; or that plaintiffs' right is barred by limitations. Patton v. Fox, 169 Mo. 97; Coleman v. Drane, 116 Mo. 387. There is more reason in permitting the Statute of Limitations to be proved in this sort of a suit than in ejectment cases, because here appellants, to make out their case, pleaded and try to prove "that defendant claims some right, title and interest in and to the land in controversy and that said claim is adverse and prejudicial to these plaintiffs; and pray the court to ascertain and determine such claims by and between the plaintiffs and defendant, respectively." Cushing v. Powell, 130 Mo.App. 576; Jones v. Rush, 156 Mo. 364; State ex rel. v. Rau, 93 Mo. 126. From the very nature of this case, much more so than in ejectment suits, defendant ought to be permitted to prove anything that would establish his title to the land. (b) Under the second count of respondent's answer, he pleads a counterclaim, which is nothing more nor less than a suit under section 650, wherein he claims to be the owner of the land in controversy and that appellants claim some right, title or interest, prejudicial to him, and prays the court to try, ascertain and determine the title between plaintiff and defendant respectively. This answer set up a good cause of action under section 650. Spore v. Ozark Land Co., 186 Mo. 656. To this counterclaim, appellants filed a general denial and, undoubtedly, on this issue we would be permitted to prove whatever title we had. Sec. 602, R. S. 1899; Knox v. Brown, 103 Mo. 223; Spurlock v. Railroad, 93 Mo. 530; Pomeroy v. Benton, 57 Mo. 531; Strauss v. Railroad, 102 Mo.App. 644; Banchor v. Gregor, 9 Mo.App. 102. (4) Appellants' contention that the court erred in permitting us to prove estoppel without pleading it, is without foundation. We did not plead estoppel and did not undertake to prove it.
Plaintiffs the heirs at law of Robert C. Nall, deceased, bring this action under section 650, Revised Statutes 1899, to have the court declare their interest in and to eighty acres of land in Pemiscot county. The petition is practically in usual form. Therein, they allege that Robert C. Nall was the owner in fee...
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