Perkins Land & Lumber Co. v. Irvin

• Decision Date: 22 December 1906
• Citation: 98 S.W. 580,200 Mo. 485
• Parties: PERKINS LAND & LUMBER CO. v. IRVIN.
• Court: Missouri Supreme Court

98 S.W. 580

200 Mo. 485

PERKINS LAND & LUMBER CO. v. IRVIN.

Supreme Court of Missouri. Division No. 2.

December 22, 1906.

1. ADVERSE POSSESSION—VALIDITY OF TITLE— SUFFICIENCY OF DEED TO SHOW COLOR OF TITLE.

Though a quitclaim deed given by one not shown to have title to the land, not sealed as required by law, and acknowledged before a justice of the peace in a county other than the one in which the land was located, was insufficient to convey title, it was sufficient to show color of title in the grantee.

2. SAME—EVIDENCE—QUESTION OF FACT.

In an action for the recovery of land claimed by defendant by adverse possession, held a question of fact to be determined from the evidence whether defendant claimed title in good faith to the land by virtue of a quitclaim deed.

3. APPEAL — REVIEW — CONCLUSIVENESS OF FINDING.

The finding of a trial court supported by evidence and made under a proper declaration of law will not be disturbed on appeal.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by the Perkins Land & Lumber Company against William Irvin. From a judgment for plaintiff, defendant appeals. Affirmed.

D. R. Cox, Geo. Houck, and C. L. Keaton, for appellant. N. A. Mozley, for respondent.

GANTT, J.

This action was instituted January 2, 1903, in the circuit court of Stoddard county. The petition contains two counts one to quiet title to the N. ½ of the S. E. ¼ of section 17, township 23, range 12, in Stoddard county, under the provisions of section 650, Rev. St. 1899. The other count is in the usual form of ejectment for the same land. In his answer the defendant disclaimed any title or right to the N. E. ¼ of the S. E. ¼ of said section, but asserted title to the N. W. ¼ of the S. E. ¼ of said section under color of title with open, notorious, continuous, hostile and exclusive adverse possession for more than 10 years. The action was tried to the court without a jury. The plaintiff introduced patents from the United States government and the state of Missouri to the 80 acres to one Crumb and then deduced title by regular mesne conveyance to the plaintiff. The defendant to sustain the issues on his part offered in evidence a quitclaim deed from James Higginbotham, acknowledged before James Stewart, a justice of the peace within and for New Madrid county, Mo., of date February 10, 1882, and recorded in Stoddard county, the 11th of December, 1893. He then offered in evidence facts showing that he had been in possession of the N. W. ¼ of the S. E. ¼ of section 17 since 1882, and had made improvements on the land. At the time he bought it there were four or five acres cleared and a little cabin on it. On cross-examination, he was asked: "When you bought the land from Higginbotham, he never claimed to own it, did he?" Ans. "I did not know anything about that; he sold me the land." Asked: "If he ever claimed to anybody that he owned the title in the land." Answered: "I claim to own the best title there was." He was asked if he had not all the time contended that the land belonged to the county, and he answered that he would not say that it belonged to the county, he said, he had four tax receipts and probably five. Says he did not tell Perkins he did not claim to own the land, and did not tell him it belonged to the county. Did not tell Perkins that he wanted the land; that he wanted to go over and buy the land from the county. Do not know what he said about that; that he did say that, if he did not own the title, he wanted the right title. He stated that he went to Bloomfield when Mr. Wammack was agent for the county to arrange to enter the land in case the county won it, and he said to Wammack if he did not have the right title that he wanted it, but did not tell Wammack that he did not own the land; stated that he was acquainted with Mr. Reed and had a talk with him about the title of the land and claimed that he had as good a title as any one else had to it, he would not say that he had not told Mr. Reed that the county had a title, would not say positive, he might have said it, but he always claimed that he had as good a title as any one else; that he had cleared about ten acres; that Mr. Perkins cut timber off of the land in 1893, 1894, and 1895; that Perkins forced himself onto the land, went into the lot, and cut out the timber; that he did not bring any action against Perkins for so doing. Perkins did not cut all the timber off of the land. He regarded Perkins as a trespasser. John Carter testified to defendant's possession of the land for 19 years, and his exercise of ownership over it. He testified to Perkins' men coming onto the land and cutting off the timber; that he notified Perkins to stay off, and tried to keep him off of the...