Parker v. Wear

• Decision Date: 09 April 1921
• Docket Number: No. 21525.,21525.
• Citation: 230 S.W. 75
• Parties: PARKER v. WEAR et al.
• Court: Missouri Supreme Court

230 S.W. 75

PARKER v. WEAR et al.

No. 21525.

Supreme Court of Missouri, Division No. 1.

April 9, 1921.

Appeal from Circuit Court, Ozark County; Fred Stewart, Judge.

Action by Martha D. Parker against F. E. Wear and others. From judgment for defendants, plaintiff appeals. Affirmed.

L. N. Dempsey, of Kansas City, for appellant.

F. W. Casner, of Kansas City, for respondents.

RAGLAND, C.

This is a statutory action to determine the title to 4,920 acres of land in Ozark county. No formal statement of the parties defendant appears anywhere in the record in this court. N. S. Wear, John C. Harlan, F. W. Casner, F. E. Wear, C. B. Wescott, and Missouri Improvement Company, a corporation, are shown to have filed answers. The court found that defendants Sidney F. Amyx, O. F. Wayland, George D. Bronson, Lillie O. Bronson and the West Plains Bank, a corporation, had no interest in the premises described in the petition, and that they were not proper parties to the action. It also found that defendant Mary Wear had no interest. There is no recital in the judgment that any defendant failed to plead, so it may be inferred that the persons named were all the defendants. For obvious reasons, the full title of the cause should have appeared both in the short transcript certified by the clerk of the circuit court and in the abstract of the record filed by appellant. However, from the pleadings and the evidence, it appears that the contest is between the plaintiff, who claims to own the land in fee simple, on the one hand, and on the other, John C. Harlan and N. S. Wear, trustee and cestui que trust, respectively, in a deed of trust securing notes aggregating $60,000, which they claim is a first lien thereon, and the Missouri Improvement Company, which asserts that it is owner in fee subject to said deed of trust.

When the evidence on the part of both plaintiff and defendants was all in, over their protest, the court permitted one Frank Brasier to file what is denominated an "interplea," and proceeded to hear evidence pro and con on the issues raised by the "interplea." The court found against the interpleader." The appellant and respondents have by agreement performed a surgical operation on the record by deleting the "interplea" and all the evidence introduced on the trial of the issues tendered by it. Notwithstanding, the decree indicates that some of the findings of facts, on which the court predicated in part its adjudication of the title as between appellant and respondents, were based on that evidence.

There was evidence on the part of the defendants tending to show that Frank Brasier was the actual owner of all the land in question from 1908 to 1913, inclusive, and that the deeds of conveyance made and recorded during that time, as will hereinafter appear, were so made at his instance and under his direction; in other words, that during all that time he had the equitable title, notwithstanding the legal title of record was being passed along to successive grantees; and that defendant Missouri Improvement Company not only acquired that legal title, but the undisclosed equitable title as well. But as it was admitted that plaintiff had no notice, with respect to the title, that was not imparted by the deed records, it is apparent that the defendant Missouri Improvement Company must rest its case solely on the evidence tending to show that it has the record title. We will therefore eliminate everything relating to the alleged equitable title in the statement which follows. In setting out the evidence relevant to the issue just indicated, we cannot do better than to follow the language of the abstract of the record:

"At the instance of plaintiff and for the purpose of saving plaintiff the expense of a transcript of the evidence taken in this case, it is agreed that the following statement is a statement of the evidence submitted by the plaintiff and by defendants, and that said evidence and the usual presumptions indulged in by courts of general jurisdiction were the basis of the judgment herein rendered:

"For the convenience of handling the number of descriptions involved in the several deeds hereafter shown, it is agreed that there is 4,920 acres of land in issue between plaintiffs and defendants herein, located in Ozark county, Mo., and that this tract, for further convenience, is arbitrarily divided into the following items, which are hereafter referred to by number to save a repetition of each description in the statement connected with each deed or transfer:

"First. The 3,320-acre tract which contains the following lands: [Here follows the description of land in township 24, range 11.]

"Second. The 1,120-acre tract which contains the following lands: [Here follows description of land in same township and range.]

"Third. The west half of section 12, township 24, range 11.

"Fourth. The Fox land which contains the following: The N. W. ¼ of section 13, township 24, range 11.

"It is agreed that Prank Brasier was the owner of all of said 4,920-acre tract on October 26, 1908, notwithstanding fact that the title to No. 3, the west half of section 12, was in F. E. Wear and the further exception that No. 4, the Fox land, was not purchased by Frank Brasier until May n, 1909, when he took the title thereto in George D. Bronson.

"Upon the trial of this action plaintiff introduced the following evidence:

"Quitclaim deed from Frank Brasier and wife to Sterling P. Iles, dated February 9, 1914, recorded February 21, 1914, in Book Z, at page 1, in the office of the recorder of deeds of Ozark county, Mo., containing the following description: [The land described consists of 2,310 acres, part of tract No. 1.]

"Quitclaim deed from Sterling P. Iles and wife to F. G. Smith, dated February 9, 1914, recorded October 15, 1914, in Book Z, page 331, containing the same description.

"Warranty deed from F. G. Smith, a single woman, to David T. Nicoson, dated October 26, 1914, recorded October 16, 1915, in Book Z, page 591, in the office of the recorder of deeds, Ozark county, Mo., containing the same description.

"Quitclaim deed from David T. Nicoson and wife to M. D. Parker dated February 24, 1916, recorded October 30, 1916, in Book 3, page 188, in the office of the recorder of deeds of Ozark county, Mo., containing the same description.

"On tract No. 2, the 1,120-acre tract, plaintiff introduced warranty deed from Frank Brasier to Lillie O. Bronson, dated April 20, 1909, recorded January 10, 1910, in Book B, page 387, in the office of the recorder of deeds of Ozark county, Mo., and containing all of said 1,120-acre description.

"Warranty deed from Lillie O. Bronson to M. D. Parker, dated November 27, 1912, filed for record October 30, 1916, recorded in Book 2, page 611, in the office of the recorder of deeds of Ozark county, Mo., same 1,120 acres, and reciting in said deed that it was made subject to a deed of trust, dated January 27, 1910, to O. L. Haydon, trustee, for the principal sum of $15,000. * * *

"As to tract No. 1, the 3,320-acre tract, the defendants offered the following evidence:

"Deed from F. E. Wear and wife to Frank Brasier, dated August 1, 1908, recorded February 4, 1909, in Book V, at page 3, in the office of the recorder of deeds of Ozark county, Mo., containing all of said 3,320-acre description. "Deed from Frank Brasier and wife to the White River Stock & Fruit Farms Company, a corporation described as of Howell county, Mo., dated October 26, 1908, recorded February 4, 1909, in book V, at page 4, in the office of the recorder of deeds of Ozark county, Mo., and containing all of said 3,320-acre tract. "Deed from the White River Stock & Fruit Farms Company, a corporation, described as of Arizona, to Frank E. Wear, dated May 19, 1911, and recorded December 26, 1912, in Book X, page 506, in the office of the recorder of deeds, Ozark county, Mo., covering all of said 3,320 acres. Deed from Frank E. Wear to O. F. Wayland, December 13, 1912, recorded February 12, 1913, in Book V, page 505, in the office of the recorder of deeds of Ozark county, Mo., and covering all of said 3,320-acre tract. * * *

"Trust deed from O. F. Wayland to John C. Harlan, trustee for the West Plains Bank, dated February 22, 1913, and recorded February 24, 1913, in Book B, at page 215, in the office of the recorder of deeds, Ozark county, Mo. * * *

"Trustee's deed from O. F. Wayland by John C. Harlan, trustee, to N. S. Wear on February 21, 1914, recorded February 21, 1914, in Book Z, at page 148, at the office of the recorder of deeds of Ozark county, Mo., for all of said 3,320 acres of land, and being based upon the foreclosure of the trust deed from O. F. Wayland to John C. Harlan, trustee, as shown above.

"As to the 1,120-acre tract No. 2, defendants introduced the following evidence: * * * "Deed from Frank Brasier to Lillie O. Bronson, dated April 20, 1909, recorded January 10, 1910, in Book V, at page 389, at the office of the recorder of deeds of Ozark county, Mo., containing all of said 1,120-acre description.

"Trust deed from Lillie O. Bronson to O. L. Haydon, trustee, for Frank Brasier, dated January 27, 1910, recorded January 31, 1910, in Book A, at page 609, at the office of the recorder of deeds of Ozark county Mo., and covering all of said 1,120-acre description.

"Trustee's deed from Lillie O. Bronson, by E. E. Compton, sheriff and acting trustee of Ozark county, Mo., to J. L. Vanwormer, dated November 4, 1912, filed for record December 11, 1912, and recorded in Book X, page 491, in the office of the recorder of deeds, Ozark county, Mo., and covering all of said 1,120-acre description. This together with the foreclosure proceedings attached. This deed is based on foreclosure of the above-described mortgage from Lillie O. Bronson to O. L. Hayden.

"Deed from J. L. Vanwormer to Allen Vanwormer, dated July 5, 1913, recorded July 8, 1913, in Book B, page 610, in the office of the recorder of deeds of Ozark county, Mo.,...