Orchard v. Smith

• Decision Date: 12 March 1917
• Docket Number: No. 18265.,18265.
• Citation: 193 S.W. 574
• Parties: ORCHARD v. SMITH et al.
• Court: Missouri Supreme Court

193 S.W. 574

ORCHARD v. SMITH et al.

No. 18265.

Supreme Court of Missouri, Division No. 1.

March 12, 1917.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Suit to quiet title by James Orchard against Elias S. Smith and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

This is a suit to quiet title to the northeast quarter of section 13 in township 31 of range 3 west, in Shannon county, returnable to the September term, 1911, of the circuit court of that county. It was originally instituted by James Orchard against Elias S. Smith, John Wallingford, North American Land & Lumber Company, a corporation, and St. Louis Union Trust Company, a corporation. The petition is in the usual form, alleging ownership of the land, that the defendants claim some title, estate or interest therein, and asking that the title be determined as between the parties, and that the defendants be barred and precluded from setting up any claim thereto. Service of summons was duly made, and the defendant North American Land & Lumber Company answered, admitting that it claimed title and denying all the other allegations, and asking to be discharged with costs. The St. Louis Union Trust Company filed its separate answer, stating that it claimed as trustee in a deed of trust and not otherwise. The defendants Smith and Wallingford did not answer. The corporate character of the two answering defendants was properly charged and admitted in the pleadings. The cause was continued from time to time until the May term, 1913, when it was taken up by the court, a jury waived by the parties, and a trial had before the judge sitting as a jury, who heard the evidence and took the case under advisement until the September term of the same year, when the court entered its judgment that the plaintiff have nothing by its action, and that the defendant North American Land & Lumber Company was the owner of the land, and vesting in it the title thereto as against the plaintiff and the defendants Smith and Wallingford, subject to the lien of the St. Louis Union Trust Company by deed of trust to secure something not stated. The common source of title is one John Beard, a resident of Montgomery county, Ind., who died in October, 1874, after having owned the land about 16 years. The land is vacant.

Pending this appeal the plaintiff, James Orchard, died, and the cause was revived by the substitution as plaintiffs of Mrs. S. E. Orchard, his widow, and Jesse Orchard, A. E. Orchard, Mrs. Ella Dix, Mrs. Mable Crawford, and Mrs. Fannie Orchard, his sole heirs, who are now the plaintiffs. The plaintiffs' title from the common source consists of a sheriff's deed in partition in a cause in which John E. Engle, Bennett B. Engle and Mary Washburn were plaintiffs, and Ira T. Evans, John D. Evans, Lettie Evans, Ellen Wynn, Emma Terhune, John Beard Terhune, Joseph Allen, Hiram Allen, John B. Allen, Carrie Allen, Susie T. Beard, George T. Beard, Elizabeth Courtney, Nathan Lewis Graham, Lettie West, Julia E. Mann, Mary L. Sanders, Josephine Evans, and ____ Severn, defendants, for the partition of the same land. These plaintiffs and defendants are shown to be all persons then having an apparent interest by descent as or through the heirs of John T. Beard. The sheriff's deed is direct to James Orchard, was properly acknowledged in open court, and recites that the judgment was rendered by the circuit court of Shannon county at its September term, 1910. The consideration recited is $41.

The defendants' paper title consisted of (1) a deed from N. L. Graham and wife, conveying the land in question to Elias S. Smith, dated October 23, 1872, and recorded in Shannon county July 9, 1874; (2) a deed from Alvin B. Clark and wife to John Wallingford, dated March 7, 1879, and recorded in Shannon county March 17, 1880; (3) a sheriff's deed from the sheriff of Shannon county, Mo., conveying the interest of John Beard, Elias S. Smith, Logan B. Damaron, and John Wallingford in the lands in question to the Current River Land & Cattle Company, dated March 16, 1887, and recorded in Shannon county October 4, 1887. This deed was founded upon a judgment for delinquent taxes; (4) a decree of the Shannon county circuit court, entered at the March term, 1907, in a cause entitled Current River Land & Cattle Company v. Unknown Heirs of John Beard, deceased. The petition in that case is as follows:

"Plaintiff states that it is a corporation organized under the laws of the state of Missouri. For cause of action plaintiff states that it is the owner in fee simple and claims the title to the following described real estate, lying, being, and situate in the county of Shannon and state of Missouri, to wit, the N. E. ¼ of section 13 in township 31, range 3 W.

"Plaintiff further states that the real estate aforesaid is not in the actual possession of any person, but is wild and uncultivated timber land.

"Plaintiff further states, under oath, that on the 21st day of August, 1858, John Beard purchased from Edward Joyce the land above described; that said John Beard is now deceased, and plaintiff verily believes there are persons interested in the subject-matter of this petition as heirs at law of said John Beard, deceased, whose names plaintiff cannot insert herein because such persons are unknown to plaintiff; that the interest which such unknown persons have in the subject-matter of this petition is a claim of title or interest in the real estate hereinbefore described by reason and virtue of a purchase made as aforesaid, by said John Beard, deceased, and is derived by inheritance as heirs at law of said John Beard, deceased; that said defendants claim some title, estate, or interest in and to said premises adverse and prejudicial to this plaintiff.

"Wherefore, plaintiff prays the court to try, ascertain, and determine the estate, title, and interest of the plaintiff and defendants herein, respectively, in and to the real estate aforesaid, and to define and adjudge by its judgment or decree the title, estate, or interest of the parties plaintiff and defendants herein severally in and to the aforementioned real estate, according to the statute in such case made and provided.

                                      [Signatures omitted.]
                

"State of Missouri, County of Shannon — ss.:

"W. W. Paulding, for the plaintiff in the above-entitled cause being duly sworn, upon his oath says that the facts and allegations set forth in the foregoing petition are true, as he

                verily believes.            W. W. Paulding
                    "Subscribed and sworn to before me the first
                day of January, 1907.     G. S. Sizemore
                                "Clerk Circuit Court. [Seal.]"
                

The decree is as follows:

"Now on this day, the above-entitled cause coming on to be heard, tried, and determined, comes the plaintiff by attorneys and announce ready for trial, and the defendants, though being duly called, come not, but make default, and it appearing to the satisfaction of the court that defendants have been notified of this proceeding, as required by law more than 30 days before the first day of the present term of this court, said cause is on motion of plaintiff taken up, and, a jury being waived, same is submitted to the court for trial and determination upon the matters and things set forth in plaintiff's pleadings. And the court after hearing the evidence, doth find that the plaintiff is the owner in fee simple of, in, and to the real estate in plaintiff's petition described, to wit: The N. E. ¼ of section 13, township 31, range 3 west, situated, lying and being in Shannon county, Mo., and that said defendants have no right, title, or interest therein.

"It is therefore adjudged and decreed by the court that said defendants be forever barred, precluded, and forever estopped from setting up, claiming, or asserting any right, title, interest, or estate in and to said real estate or any part thereof, and that the title of the plaintiff be quieted thereto.

"Plaintiff objected to the introduction of said decree for the reason that the petition in the case was insufficient and stated no cause of action against the unknown heirs of John Beard, deceased, and for the further reason that the petition was not verified by the plaintiff or any one authorized by law to do so, and in support of the objection plaintiff offered in evidence from the original files the petition in said cause and upon which said decree was based, which is as follows, to wit [caption omitted]."

Mr. Paulding testified as follows:

"That he had been the agent of the Current River Land & Cattle Company from the year 1893 until 1909, inclusive, excepting one year, and had had the local management of its business; that the said company's office was then, and had been during said time, in Saginaw, Mich.; that said company owned timber lands in Shannon county since the year 1888 or 1889; and that land was the said company's entire assets in Shannon county; that he had charge of the management of said company's business in Shannon county during the year 1907, and made the affidavit upon which the petition in the suit referred to was based, and had protected the lands in controversy from trespass about six years ago."

The plaintiff objected to the introduction of this record on the ground that the petition was not verified as the law at the time required, which was overruled by the court and the record read in evidence, to which the plaintiff excepted at the time.

The defendant also offered in evidence a copy of an instrument purporting to be the will of John Beard, dated October 23, 1872, with two codicils, dated, respectively, June 23, 1873, and July 21, 1874, with a certificate of probate of the clerk of the circuit court of Montgomery county, Ind., as custodian thereof, and duly verified as provided by the laws of the United States and of this state relating to the verification of records of other states. The certificate of probate was made October 5,...