Osage Investment Company v. Sigrist

• Decision Date: 06 April 1923
• Parties: OSAGE INVESTMENT COMPANY v. JOHN J. SIGRIST, Appellant
• Court: Missouri Supreme Court

250 S.W. 39

298 Mo. 139

OSAGE INVESTMENT COMPANY v. JOHN J. SIGRIST, Appellant

Supreme Court of Missouri, First Division

April 6, 1923

Appeal from St. Clair Circuit Court. -- Hon. C. A. Calvird, Judge.

Reversed and remanded.

George H. English for appellant.

(1) The trial court erred in holding in effect that the defendant was required to prove his defense upon the petition for review it should have held that a primafacie showing of a meritorious defense was sufficient, and this showing was made. 23 Cyc. 963-4; 15 R. C. L. 718; 17 Am. & Eng. Ency. Law (2 Ed.) 846; Tucker v. Ins. Co., 63 Mo. 588; Harkness v. Jarvis, 182 Mo. 231, 241; Parks v Coyne, 156 Mo.App. 379, 394. (2) The defendant showed a meritorious defense under the Statute of Limitations. Nall v. Conover, 223 Mo. 477; Hunter v. Weil, 222 S.W. 472; Thompson v. Stilwell, 253 Mo. 89. (3) The defendant showed a meritorious defense in respect of the presumption of delivery of the deeds and the court erred in holding that the presumption was in favor of the prior delivery of the deed acknowledged first; the court should have held that the presumption was that the deed dated and recorded first was delivered first; particularly in view of the facts and circumstances disclosed from the deeds relating to the same transaction. Miles v. Robertson, 258 Mo 717, 724; Chambers v. Chambers, 227 Mo. 262, 282; Fontaine v. Bank, 57 Mo. 552; 1 Devlin on Deeds (3 Ed.) p. 260; In re Brigham's Estate, 144 Iowa 71; Crabtree v. Crabtree, 136 Iowa 430, 111 N.W. 922; Loomis v. Pingree, 43 Me. 299; McCullough v. Day, 43 Mich. 554.

Waldo P. Johnson and Hargus & Johnson for respondent.

(1) A quit-claim deed passes only such interest as the grantor then has and passes no title afterward acquired. Smith v. Washington, 88 Mo. 475; Kimmel v. Benna, 70 Mo. 52; Butcher v. Rogers, 60 Mo. 138. (2) A deed takes effect from the time of delivery and acceptance. Hall v. Hall, 107 Mo. 101; Standiford v. Standiford, 97 Mo. 231; Powell v. Banks, 146 Mo. 620. (3) The delivery of a deed is presumed to have been made on the date of acknowledgment if this be later than the date of deed. Fontaine v. Boatmens Sav. Inv., 57 Mo. 552, 561; Crabtree v. Crabtree, 136 Iowa 430, 15 A. & E. Ann. Cas. 149; Hammerslough & Cheatham, 84 Mo. 13, 20; Zerbe v. Ry. Co., 80 Mo.App. 414; Gerardi v. Christie, 148 Mo.App. 75; Paving Co. v. Field, 174 Mo.App. 11; Tiedeman on Real Property (3 Ed.), sec. 576; 13 Cyc. 731; Daughdrill v. Lockhart, 181 Ala. 338; Tucker v. Glew, 185 Iowa 231; Wolverton v. Collins, 34 Iowa 238; Johnson v. Moore, 28 Mich. 2; Windon v. Schuppel, 39 Minn. 35; Benson v. Wolverton, 15 N.J.Eq. 158; Hulse v. Bacon, 167 N.Y. 599; State v. Dana, 59 Wash. 30, 109 P. 191; Wheeler v. Single, 62 Wis. 380; Miller v. Peter, 158 Mich. 336; Harriman v. Hilton, 121 Tenn. 308, 120 S.W. 162; Kichner v. Jehlip, 85 Kan. 684, 118 P. 1058; Henderson v. Ballenon, 8 Md. 352; Blanchard v. Tyler, 12 Mich. 339; Clark v. Akes, 10 Kan. 166. (4) Defendant's petition for review was not filed in time. R. S. 1919, sec. 1978. There is no evidence sustaining a defense of adverse possession. Huston v. Graves, 213 S.W. 77; Jeffers v. Johnson, 175 S.W. 581; Lumber Co. v. McCabe, 220 Mo. 154; Herbst v. Merrifield, 133 Mo. 267.

OPINION

RAGLAND, J.

This is an appeal from an order of the Circuit Court for St. Clair County, refusing to set aside, on a petition for review, a default judgment previously rendered by it on constructive service. The judgment sought to be vacated was rendered March 15, 1918. The petition for review was filed March 20, 1920; after averring that the petitioner had not been summoned and had not previous to that time appeared to the suit, it proceeded as follows:

"Your petitioner further says that plaintiff's petition is untrue in a material matter and that he has a good defense to the plaintiff's suit, all as hereinafter set forth.

"That plaintiff's petition sets forth an action to try, ascertain and determine the interest and title of plaintiff and defendant respectively in and to the land hereinbefore described and to divest the defendant of all right, title, interest and estate of and to the same.

"Said petition avers that plaintiff is the owner in fee simple of said land, which averment is untrue.

"Your petitioner says that his defenses to said action are:

"First. That on the 23rd day of September, 1904, one George W. Bush, then being the owner in fee simple of said land, did, by good and sufficient warranty deed of said date, duly acknowledged and recorded, convey to your petitioner said lands.

"Second. That your petitioner and those under whom he claims have been in the actual, open, hostile, exclusive, continuous and adverse possession of said lands, under claim of ownership thereto for more than ten years last past and for more than ten years prior to the filing of plaintiff's petition herein; and that neither plaintiff nor its predecessors, grantors nor any other person under whom it claims was seized or possessed of the premises in question within ten years of the commencement of plaintiff's petition.

"Third: That as appears from the decree of the court herein, plaintiff's claim of title to said land is based as follows: That Johnson Land Company, a corporation, by deed dated and acknowledged December 6, 1893, conveyed said land to Aubrey L. Wisker, who, by quit-claim deed dated November 11, 1893, and acknowledged December 7, 1893, conveyed said land to Johnson Land Company; and that plaintiff claims by virtue of a subsequent conveyance to it by Johnson Land Company; that the conveyances between Johnson Land Company and Aubrey L. Wisker will be presumed to have taken place on the dates of the acknowledgments of the same and not before. But your petitioner says and shows to the court, as a defense to said claim, that prior to said December 6, 1893, the title to said land had been vested as follows: three-sevenths in the heirs and devisees of one Charlotte Annie Wisker, deceased, and four-sevenths in Johnson Land Company; that the aforesaid conveyance of Aubrey L. Wisker to Johnson Land Company was joined in by numerous other parties, who, with said Aubrey L. Wisker, were heirs at law or devisees of said Charlotte Annie Wisker, deceased; that said conveyance was acknowledged by said Aubrey L. Wisker with some of the other grantors therein, in the County of Pettis, State of Missouri, and by other of said grantors in the city of St. Louis, Missouri; that the deed of Johnson Land Company to Aubrey L. Wisker was acknowledged in the County of Jackson, State of Missouri; that the deed from said Wisker heirs and devisees to Johnson Land Company was dated November 1, 1893, and was recorded December 14, 1893, while the deed from Johnson Land Company to Aubrey L. Wisker was dated December 6, 1893, and recorded December 27, 1893. Your petitioner therefore says that by virtue of the nature of the transaction, the diversity of the places of acknowledgment, the dates of the instruments and the dates of the record of the same and the circumstances of the parties appearing on the face of said instruments there is no presumption in law that said conveyances were delivered on the dates of their acknowledgments. But, on the contrary, your petitioner says that if any presumption of the date of delivery of said deeds exists, such presumption is that the deed of Johnson Land Company to Aubrey L. Wisker was delivered and took effect subsequent to the conveyance of said Wisker heirs and devisees to said Johnson Land Company.

"Fourth. As a fourth and further defense to plaintiff's claim to said land and its cause of action herein, your petitioner says that said conveyance of Johnson Land Company to Aubrey L. Wisker was intended to and did divest Johnson Land Company of all right, title and interest in and to said land and did invest the same in Aubrey L. Wisker; and that plaintiff, claiming by, through and under said Johnson Land Company has not and had not at the time of the commencement of this action, any right, title or interest in said lands.

"Wherefore your petitioner prays the court to set aside final judgment and to grant him leave to answer and defend said suit, upon such terms and conditions as are prescribed by law and are just and equitable, and for his costs."

The petition was duly verified by the affidavit of the defendant, Sigrist.

Plaintiff filed answer admitting the rendition of the judgment, but denying in effect the other allegations of the petition for review. The circuit court seems to have held that it was necessary for defendant to establish by proof a prima-facie case with respect to the defense set forth in his petition. In any event it heard evidence pro and con offered by the parties with reference thereto, and at the conclusion of such hearing made a finding: "That plaintiff's petition is not untrue in any material matter, but is true; and the defendant has not shown that he has or had at the time of the rendition of the judgment, a good defense to plaintiff's petition."

I. This proceeding is governed entirely by statute, Sections 1532-1535, Revised Statutes 1919. If the defendant has brought himself within its provisions his right to have the judgment vacated, in order that he be afforded an opportunity to make a defense on the merits, is absolute and in no wise dependent upon the discretion of ...