Newbrough v. Moore

• Decision Date: 29 March 1918
• Docket Number: No. 19193.,19193.
• Parties: NEWBROUGH et al. v. MOORE.
• Court: Missouri Supreme Court

202 S.W. 547

NEWBROUGH et al. v. MOORE.

No. 19193.

Supreme Court of Missouri, Division No. 1.

March 29, 1918.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Action by William H. Newbrough and others against Louise C. Moore. Judgment for plaintiffs, and defendant appeals. Affirmed.

This suit was instituted in the Reynolds circuit court March 30, 1914, under the provisions of section 2535 of the Revised Statutes of Missouri, for the purpose of determining the title to the following described lands in that county: The northeast quarter of section 9, in township 29 north, of range 2 east.

The petition is in the usual form in such suits. The following is its prayer for relief:

"Wherefore, plaintiffs pray the court to try, ascertain and determine the estate, title and interest of the plaintiffs and defendant herein, respectively, in and to the estate aforesaid, and to define and adjudge by its decree, the title, estate and interest of the parties plaintiff and defendant herein, severally, in and to the aforesaid property."

The answer admits that the defendant asserts title to the land described in the petition, and avers that she is the owner thereof, and denies each and every other allegation of the petition. It also pleads title under the general statute of limitations by actual, peaceable, open, adverse, notorious, hostile, and continuous possession of the lands for more than 10 years next before the filing of the suit; invokes the provisions of section 1884 of the Revised Statutes of 1909 commonly called the 30-year statute of limitation by proper averments; also the provisions of section 11506a of the Revised Statutes of the state of Missouri with reference to tax deeds. It also pleads laches by standing by for a period of many years while defendant improved the land and paid taxes on it without asserting their claim until the land had increased greatly in value. The particulars of these pleas will be further noticed, if necessary, in the opinion. The prayer for cross-relief is as follows:

"Wherefore defendant prays the court to try, ascertain and determine the estate, title and interest of the plaintiffs and the defendant, respectively, in and to the real estate described in plaintiff's petition, and to adjudge by its judgment and decree the title, estate and interest of the parties, plaintiffs and defendant, respectively, in and to the property described in plaintiffs' petition, and asks that the court find and decree by its judgment that the plaintiffs are estopped and precluded from setting up any title to said lands, by reason of their laches and by reason of the statute of limitations as heretofore pleaded. And having fully answered, defendant asks to be discharged with her costs."

Issue was joined on these pleas by replication. The cause was tried at the November term of said court, 1914, and resulted in a judgment establishing the title of plaintiff, and that defendant had no right, title, or interest in the lands in controversy. It is from this judgment that the appeal is taken.

The plaintiffs, at the trial, deraigned their title from the government, through various conveyances, to one Eugene P. Newbraw of the city of Lansing, Ingham county, Mich., who took by general warranty deed from one Frank Blumenthal of Wayne county in that state, dated April 12, 1877, and recorded December 10th of the same year in the office of the recorder of deeds of Reynolds county. They also proved that they were the widow and children and only heirs of Eugene P. Newbrough, who sometimes spelled his name Newbro; that he lived in Lansing, where lee died in March, 1887; and that he owned and dealt in lands in different parts or the country, including Missouri. His dealings in these lands were practically all during the minority of his children. Neither the widow nor the children had any papers in connection with them.

The defendant introduced in evidence a tax deed duly signed and acknowledged by B. F. Carter, collector of Reynolds county, to one William Carter of the same county. The lands conveyed included, in addition to the tract in controversy, about 1,120 acres of other lands in said county, and was for unpaid taxes of 1873. The consideration was $46.20, the gross amount of the taxes. This deed was dated May 7, 1877, and was duly filed for record May 9, 1877. It recited that at the February term, 1875, of the county court of Reynolds county a judgment was obtained in favor of the state of Missouri against the lands conveyed for $46.20 for taxes of 1872; that on May 3, 1875, the said collector, by virtue of a special execution issued out of the county court of said county, dated February 19, 1875, to him directed, "did expose at public sale at the courthouse in the county aforesaid in conformity with all the requisitions of the statute in such case made and provided the tracts above described for the satisfaction of the judgment so rendered as aforesaid." That said William Carter having offered to pay the amount of said taxes, "which was the best quantity bid for, the said fractional portion of each above described tract was stricken off and sold to William Carter." Then followed the concluding clause of the statutory form. This deed recited no reason for the entry of the judgment of the February term, 1875, nor any notice either of the application for the judgment nor of the sale. Carter paid the taxes for 1877, 1878, 1881, 1885, and 1886. There is no evidence of their payment for 1874, 1875, 1876, and 1879; nor of who paid them in 1880, 1882, 1883, 1884, and 1887. In the last-named year Carter conveyed to the Wayne Lumber Company, which paid the taxes up to the year 1896, when they were not paid. Moore and Brown then paid the taxes from that year up to 1908, after which this defendant paid them continuously until 1911.

One Tom Boston testified that the Wayne Lumber Company was in possession in 1884 or 1885, and cut the timber. He testified to no other act of possession. O. B. Laxton testified that he was an employé of the Wayne Lumber Company, which cut the timber off about 30 years before the trial. About 13 years before the trial he became their tenant, and about a year afterward helped, build a fence around it with other lands in the section. He left it about 10 years before the trial. They pastured cattle there. The witness had not been there for about 10 years. It was hilly, rough land. Mr. Hawkins, another employé, testified for defendant that the fence stood there 3 or 4 years. He came there in 1902 and took charge of the land. He knew of no other acts of ownership exercised over it than paying the taxes and keeping off trespassers. He did that. It consisted of timber land and some pasture, and was used in connection with a large body of land. It was used in connection with the Pinedale farm, and another place called Dell Hollow. It was originally leased to the Logan Live Stock Company, and was fenced; and afterward "we leased the Pinedale farm, and they used this other land as a pasture." It ceased to be inclosed in the latter part of 1905. On re-examination the following questions were asked him:

"Q. How long after you became acquainted with this land did it continue to have a fence around it? A. I can't tell; something like a year after that. Q. Neither Mrs. Moore nor her tenants ever repaired this fence? A. No, sir; they didn't repair it, but they have been paying the taxes, and keeping trespassers off of it."

While there was evidence that land had naturally increased in value in the country, there was no evidence that this land was increased by any act of or improvement made by the defendant.

The defendant asked the following instructions:

"The court declares the law to be that the collector's deed offered in evidence by the defendant in this case is sufficient to pass the title to the defendant's grantor, and that if the court finds and believes from the evidence that said collector's deed was executed and recorded three years and more next before the filing of this suit, then the three-year special statute of limitation applies to this case, and the plaintiff's cause of action is barred by said statute of limitation, and the finding must be for the defendant.

"The court declares the law to be that if it finds and believes from the evidence that the plaintiffs, knowing of their rights or having sufficient knowledge of facts which would have disclosed their rights by the exercise of such diligence as a reasonably prudent person would exercise, and that plaintiffs have never gone into possession, paid no taxes or exercised any rights of ownership over the lands in this suit for thirty years or more, and that the defendant and those under whom she claims have paid taxes on these lands for a great number of years, and have exercised such rights of ownership over the same as the condition of the land was susceptible of, fenced in some of it, watched over it to keep timber cutters off, and that said lands have largely increased in value, then the plaintiffs are guilty of laches, and the finding should be for the defendant."

These were, with the case, taken under advisement by the court until the next (May, 1915) term, when they were refused, and the court entered judgment for the plaintiff as asked in petition, to which action in reference to the instructions the defendant excepted. A motion for a new trial was in due time filed by defendant and overruled, to which exception was taken. This appeal was duly allowed by the court.

Leslie C. Green, of Poplar Bluff, and Ernest A. Green, of St. Louis, for appellant. John H. Chitwood and C. M. Buford, both of Ellington, for respondents.

BROWN, C. (after stating the facts as above).

I. Before going further it is proper to state the attitude of this court with reference to the findings of the trial court upon the evidence. This depends upon whether or not this is one of those cases in which a jury trial is authorized by the...