Pharis v. Bayless

• Decision Date: 24 May 1894
• Citation: 26 S.W. 1030,122 Mo. 116
• Parties: Pharis v. Bayless, Appellant
• Court: Missouri Supreme Court

26 S.W. 1030

122 Mo. 116

Pharis v. Bayless, Appellant

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from Barry Circuit Court. -- Hon. Joseph Cravens, Judge.

Affirmed.

Norman Gibbs and Thomas M. Allen for appellant.

(1) The pretended tax deeds, executed by Sample Orr and by Jared E Smith, register of lands, and by John H. Moore, collector read in evidence by plaintiff, and under which he claims the lands in controversy, were void on their face, as has ever been held by this court when like deeds have been before this court. Yankee v. Thompson, 51 Mo. 234; Smith v Funk, 57 Mo. 239; Hubbard v. Gilpin, 57 Mo. 441; Spurlock v. Allen, 49 Mo. 178; Eimstein v. Gay, 45 Mo. 62; Moore v. Harris, 91 Mo. 616. (2) This action was begun under section 2095, Revised Statutes, 1889. That section is the only law that pretends to authorize this action. That section provides for the entering of a decree virtually divesting the legal title to real estate, from the record owner, under certain circumstances, and this section must be strictly construed. And plaintiff must prove by direct and positive testimony, beyond a reasonable doubt, every fact necessary to entitle him to the decree asked. Bradley v. West, 60 Mo. 37. (3) The origin of plaintiff's claim of title to the Horner forty (i. e., the southeast quarter of the southeast quarter of 28-23-27) is separate and distinct from the origin of his claim of title to any of the other lands in controversy; and as no part of that forty had been, on the day of trial, held adversely to defendant or his grantor for more than six or seven years, the finding and judgment of the court should have been for the defendant as to that forty acre tract. Tiedeman on Real Property [1 Ed.], sec. 694; Musick v. Barney, 49 Mo. 458; Pike v. Robertson, 79 Mo. 615. (4) The testimony shows beyond question that the Ben Cooper clearing was not on the Horner forty. But if it had been on that forty, it was abandoned long prior to Horner's taking possession; and plaintiff does not claim through Cooper. And there never was any adverse possession of that forty for ten years. (5) No one can maintain an action under section 2095, Revised Statutes, 1889, for outlying lands that he is not in the actual possession of. (6) A deed void on its face never constitutes color of title nor constructive possession, until the grantee takes actual possession of a part of the lands described in the deed. (7) Under the sixth declaration of law asked by defendant and given by the court, there could have been no adverse holding of the west half of the southeast quarter of 28-23-27, except for a few years before bringing the suit; and then only for the small portion thereof which the Walls field was extended over; and judgment should, at least, have been for defendant for all of said tract, except the portion inclosed by said extension. Tiedeman on Real Property [1 Ed.], sec. 699; University v. McCune, 28 Mo. 481; Schad v. Sharp, 95 Mo. 573.

T. D. Steele and W. Cloud for respondent.

(1) As to appellant's first point: It is difficult to ascertain what relevancy the authorities cited bear upon the issues involved in this case, as under section 6770, Revised Statutes, 1889, defendant or those under whom he claims had only one year after said section was amended in 1889 to bring his action. And this court has repeatedly construed this section and the conditions required to invoke its aid. Fairbanks v. Long, 91 Mo. 630; Rollins v. McIntire, 87 Mo. 496. (2) Plaintiff was in actual possession of the land, and under section 6768, Revised Statutes, 1889, possession of part under color of title shall be deemed possession of the whole. Harbison v. School District, 89 Mo. 184; McElhenney v. Kraus, 10 Mo.App. 218. (3) The deeds of plaintiff were instruments, each having a grantor and a grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, and gave color of title to lands described. Crispen v. Hannavan, 50 Mo. 546; Long v. Higginbotham, 56 Mo. 245. (4) It makes no difference for the purposes of this suit if the deeds were void on their face, as the evidence shows that plaintiff was in the actual possession and exercised the usual acts of ownership over the land, and a portion of each tract under fence and in cultivation. Hickman v. Link, 97 Mo. 482; Hamilton v. Boggess, 63 Mo. 233; Campbell v. Laclede, etc., Co., 84 Mo. 377. (5) The judgment of the court was warranted by the testimony which tended to prove all the findings of the trial court, and the court having passed on all the questions of fact, and the testimony clearly warranting such findings, this court will not disturb the findings of the trial court. Hamilton v. Boggess, 63 Mo. 233; Waddell v. Williams, 50 Mo. 216; R. S. 1889, sec. 5102, title, Lawful Possession; Krevet v. Myer, 24 Mo. 110; Beeler v. Cardwell, 29 Mo. 74; McCartney v. Alderson, 45 Mo. 38.

OPINION

Gantt, P. J.

D. P. Pharis, the plaintiff, brought his action in the circuit court of Barry county against John M. Bayless, under the new section, 2095, Revised Statutes, 1889, to perfect his record title to certain lands in said county, to wit, the west half of the southeast quarter, and the southeast quarter of the southeast quarter of section 28, and west half of the southwest quarter of section 27, all in township 23 of range 27, west of the fifth principal meridian.

It is alleged in the petition, and the uncontradicted evidence shows, that Charles Ingles purchased and received his patents from the United States government, to all of said lands on the twenty-eighth of August, 1857; that said Ingles, about one week after entering said lands, went upon them in company with one Wells and prospected for lead, by digging a hole; that said Ingles never, after 1857, occupied said lands or any portion of them nor performed any visible act of ownership over them prior to the bringing of this suit.

On June 13, 1891, said Ingles and wife, by a quitclaim deed, conveyed all of said lands to defendant Bayless for a consideration of $ 30, which said deed was recorded June 15, 1891, in book 46, page 305, in recorder's office of Barry county. It was also shown that said Ingles never paid any taxes on said lands at any time.

The plaintiff offered and read in evidence a tax deed to the southeast quarter of the southeast quarter of section 28, township 23, range 27, from Sample Orr, register of lands of Missouri, to William S. McConnell, of date 1864, and recorded in Barry county June 12, 1867; a deed from said McConnell and wife to L. C. Horner to said forty acres of date May 23, 1885, duly acknowledged on same day, and recorded February 2, 1886; a deed from said Horner and wife to plaintiff to said forty acres, February 3, 1886, duly acknowledged and recorded February 4, 1886. These conveyances constituted plaintiff's paper title or color of title to said forty acres.

Plaintiff then read in evidence a tax deed from the collector of Barry county to plaintiff, conveying to him the west half of the southeast quarter of section 28, township 23, range 27, on a sale of same for delinquent state and county taxes for the year 1866, acknowledged and recorded November 26, 1869. Plaintiff then read in evidence a deed from Jared E. Smith, register of lands of Missouri, to plaintiff for west half of the southwest quarter of section 27, township 23, range 27, acknowledged January 11, 1868, and recorded in Barry county March 10, 1869.

Plaintiff then offered evidence tending to prove an actual possession of these lands for a period of twelve or fifteen years, the evidence showing that he inclosed and cultivated, by his tenants, portions of the west half of the southeast quarter of section 28, and the west half of the southwest quarter of section 27, claiming title to the whole one hundred and sixty acres, continuously and openly for twelve or fifteen years; that he paid the taxes thereon; that it was known generally that he claimed it and no one made any adverse claim until Bayless placed his quitclaim of record.

There was more controversy over the southeast quarter of southeast quarter of section 28, known as the Horner forty. Plaintiff's evidence tended to prove possession by McConnell and then by Horner as grantee of McConnell and plaintiff under deed from Horner. Defendant disputed this and his evidence tended to prove possession by plaintiff of about seven years only. Counsel being themselves so well acquainted with the locus in quo have failed to preserve the evidence in such a way as to show the error, if any, in the finding of the court on this question of fact.

Defendant assigns various grounds for reversal and we will endeavor to consider them.

I. The action is a statutory proceeding, authorized by the Revised Statutes of 1889, section 2095, for the first time. There is an error in the recital of the limitation chapter. It should read "chapter 103" instead of "101."

This section provides that in all cases when the title or claim of any person, out of possession of any real estate, shall be barred by limitation, under the provisions of the section entitled, "Limitation in case of certain equitable titles" of chapter 103 of the Revised Statutes of 1889 the same section being section 6770, and the title to said real estate has vested in the party in possession or those under whom he claims,...