Porter v. Reed

• Decision Date: 26 June 1894
• Parties: Porter v. Reed et al., Plaintiffs in Error
• Court: Missouri Supreme Court

27 S.W. 351

123 Mo. 587

Porter v. Reed et al., Plaintiffs in Error

Supreme Court of Missouri, Second Division

June 26, 1894

Error to Jackson Circuit Court.

Affirmed.

Beardsley & Gregory for plaintiffs in error.

(1) To quiet title by the remedy of a bill of peace, the plaintiff must first have established his right to the property by repeated trials at law. Sutton v. Dameron, 100 Mo 150; State v. Sioux City, 7 Neb. 375; Collins v Collins, 19 Ohio St. 468; Thompson v. Engle, 4 N. J. Ch. Rep. 276; Patterson v. Jersey City, 1 Stockton (9 N. J. Eq.), 434; West v. Mayor, 10 Paige 540. (2) The repeated bringing of suits which are dismissed is not enough to warrant a court of equity in interposing its power of injunction. Patterson v. McCamant, 28 Mo. 210; Marmaduke v. Railroad, 30 Mo. 545; Knowles v. Inches, 12 Cal. 212; Bond v. Little, 10 Ga. 395; Gunn v. Harrison, 7 Ala. 585. (3) In order to maintain a bill of peace the action sought to be enjoined must be such an one as can be then brought; "there must be a claim of present right capable of being enforced by action." Collins v. Collins, 19 Ohio St. 468. (4) The petition in this case is in the nature of a bill of peace. It seeks to enjoin the defendants from suing in ejectment. Those of the defendants who are married women, as shown by the record, namely, Eliza Jane Reed, Martha K. Witcher, and Fannie Fitlingberger, by reason of their coverture, had neither the right of possession of the lands in question nor the power to sue to recover the same. Dyer v. Wittler, 89 Mo. 81; Kanaga v. Railroad, 76 Mo. 207; Gray v. Dryden, 79 Mo. 106; Cooper v. Ord, 60 Mo. 420; Mueller v. Kaessmann, 84 Mo. 318; Bledsoe v. Simms, 53 Mo. 308. (4) The married woman's act (see sec. 3295, R. S. 1879), does not alter the common law relations of husband and wife in this respect. His possession is her possession, and he is the proper and only party to be made plaintiff or defendant in a suit for land claimed to belong to her. Bledsoe v. Simms, 53 Mo. 308; Rust v. Goff, 94 Mo. 519.

M. Campbell for defendant in error.

(1) This baseless claim is a cloud on the title of John Porter. 2 Am. and Eng. Encyclopedia of Law, 298. Lick v. Ray, 43 Cal. 83. (2) The statement shows his case to be entirely free from doubt. 2 Story's Eq. Jur., sec. 857. Eldridge v. Hill, 2 Johns Ch. 281. (3) "The present is not strictly a bill of peace. Its object is not to quiet a title supported by a single verdict at law, but its object is to prevent a multiplicity of actions, equally vexatious and oppressive to both parties, by asking the aid of a court of chancery to have the title tried under its superintendence so that there may be a final decision. And when a bill is brought on this ground of preventing a multiplicity of vexatious suits at law, the question as to the number of verdicts obtained does not arise." Kent, C. J., in Huntington v. Nicoll, 3 Johns. 602. (4) This is an equitable suit to quiet a particular claim of title. That claim is the wife's claim, in the instances complained of. No other person can make this claim for her, and she is a necessary party to any adjudication of the demand of the petition. Now a wife can be sued for her tort at law even. Merrill v. St. Louis, 83 Mo. 244. (5) And a wife can be sued in equity, and a decree go against her estate. Staley v. Ivey, 65 Mo. 74; Pratt v. Eaton, 65 Mo. 157; Morrison v. Thistle, 67 Mo. 596. (6) Her title to real estate can only be divested by proceedings in equity. Clark v. Rynex, 53 Mo. 380. Here is full jurisdiction over both person and subject-matter, and the judgment binds her. Wagner v. Ewing, 44 Ind. 441; Childress v. Taylor, 33 Ala. 185; Lewis v. Gunn, 63 Ga. 542; Vick v. Pope, 81 N.C. 22; Kennard v. Sax, 3 Ore. 263.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

On the twenty-first of March, 1889, John Porter brought his action returnable to the April term, 1889, of the circuit court of Jackson county, Missouri, against Eliza J. Reed and Jasper Reed, her husband, Martha A. Witcher and Tandy K. Witcher, her husband, Fanny Fitlingberger and Jacob Fitlingberger, her husband, Mary Miller and George W. Miller.

His petition, omitting the caption, was in the following words:

"Plaintiff states that he is the owner of, and entitled to the possession of, and is actually in possession of, the following described land in Jackson county, Missouri, to wit the west half of the northeast quarter of section seven (7), township forty-nine (49), range thirty-two (32). Also part of the east half of the northeast quarter of said section seven (7), township forty-nine (49), range thirty-two (32), described as follows: Beginning at the northwest corner of said last mentioned half quarter, thence running east to the northeast corner of the northeast quarter of said section seven (7), thence south forty poles, thence west to the west line of said east half of the northeast quarter of said section seven (7), thence north forty poles to the beginning, containing twenty acres and being the north twenty of the east half of the northeast quarter of section seven (7), township 49, range 32.

"Also a part of the northwest quarter of said section 7, township 49, range 32, bounded as follows: Beginning at the northeast corner of the northwest quarter of said section 7, thence running south eighty poles, thence north, 67 1/2 degrees west, forty (40) poles to a corner on the east bank of the Big Blue river, thence down on said Big Blue river to its intersection with the north line of said section 7, thence east to the beginning, containing about ten acres.

"Plaintiff states that he has been continuously in the adverse possession and ownership of said land since March 4, 1872, under the following deeds, to wit:

"A warranty deed dated January 12, 1872, recorded March 4, 1872, in book 93, page 578, in the recorder's office, at Independence, Missouri, executed by Hiram Miller, Henry C. Miller, James W. Miller, John D. Miller, Ann Collin, John F. Collin by J. Brown Hovey and George W. Buchanan their attorneys in fact.

"A deed from Alfred J. Galbraith by George W. Buchanan, his attorney in fact, dated also January 12, 1872, and recorded on March 5, 1872, in book 88, page 578, of the records of Jackson county at Independence, Missouri.

"A deed from James A. Etter and wife, Mary Jane, dated January 18, 1873, and recorded March 3, 1873, in book 105, page 400, of the records of Jackson county at Independence, Missouri.

"Plaintiff states that by said deeds he obtained the entire title to said lands and avers that in the year 1858 all the title and the actual possession of said land was vested in one Henry Miller; that said Henry Miller died in said year, 1858, or in January, 1859, and that he left no will; that at his death he left as his heirs his widow Elizabeth Miller and his children, Hiram Miller, Henry C. Miller, James W. Miller, John D. Miller and Ann Miller.

"That George W. Buchanan administered on the estate of said Henry Miller, deceased, and settled said estate without disposing of said land; that at the death of said Henry Miller one Fanny Russell, who was living with said Henry Miller in his lifetime as his housekeeper was left in occupancy of said land; that said Fanny Russell had with her on said land defendants Eliza Jane Reed, known then as Eliza Jane Miller, Martha Ann Witcher, then known as Martha Ann Miller, Fannie Fitlingberger, then known as Fanny Miller, Henry Miller, and George W. Miller; that Eliza Jane Miller afterwards, in 1867, was the wife of one Henry Akers, Martha Ann Miller was in 1867 wife of Tandy K. Witcher, and Fanny Miller was in 1867 wife of Jacob Fitlingberger; that said defendants were the children of said Fanny Russell and they remained with their mother on said land during the troubled times of the civil war in actual occupancy of said land; that after the war and in 1867 said Hiram Miller, Henry C. Miller, James W. Miller and Ann Weatherby, formerly Ann Miller brought suit in ejectment against said Fanny Russell and her said children Eliza Jane Akers by the name of Jane Akers, and her husband Henry Akers, and Fanny and Jacob Fitlingberger, her husband, Martha Ann and Tandy K. Witcher, her husband, and Henry and George W. Miller; that said suit was brought in the circuit court of Jackson county, at Independence, and was numbered on the dockets of said court as 7380.

"That afterwards on the thirtieth day of September, 1869, said cause came on to be heard before a jury who found the issues for the plaintiffs and judgment was duly rendered thereon and is of record in record O, page 514, of the circuit court records at Independence, Missouri, awarding said lands to said plaintiffs, Hiram Miller, Henry C. Miller, James W. Miller, John D. Miller and Ann Weatherby, and affirming their title to the possession thereof; that on said judgment said parties were accordingly put into possession of said lands; that said Ann Weatherby then married one John F. Collin; that plaintiff by the deeds aforesaid, came into ownership of all the title of said parties in and to said lands; that defendants never made any pretense of claim to said land from the time plaintiff bought and took possession thereof till the twenty-second day of September, 1887, when they sued plaintiff in ejectment, claiming title to said lands; that said Eliza Jane, had in the mean time got rid of said Henry Akers and had married Jasper Reed; that said case was brought in the circuit court of Kansas City, Missouri, and was numbered 10606 in said court; that plaintiff was put to heavy expense in employing attorneys and preparing to defend said cause; that, nevertheless, on the day when said cause was set down for trial, defendants dismissed their said cause...