Potter v. Long

• Decision Date: 30 March 1909
• Parties: POTTER v. LONG.
• Court: Missouri Supreme Court

117 S.W. 724

217 Mo. 607

POTTER v. LONG.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

1. DEEDS (§ 120)—CONSTRUCTION AND OPERATION —PROPERTY CONVEYED.

S., the owner of a tract of land, conveyed it during his lifetime to a grantee, who conveyed it to T. Subsequently T. and others, heirs of S., conveyed all their interest in the real property of S., "deceased," contained in a described parcel of land. Held, that, assuming that the description of the land in the deed of the heirs was sufficient to embrace the tract conveyed by S., their deed did not convey any interest in the tract, since it operated merely to pass the grantors' interest in the property S. had at his death in the described land, and S. had parted with his title to the tract during his lifetime.

2. ADVERSE POSSESSION (§ 114)—EVIDENCE.

Evidence held to show that the ancestor of a party's grantors had been in possession of the land conveyed, claiming it as his own, for over 30 years.

Appeal from Circuit Court, Barry County; F. C. Johnson, Judge.

Action by James T. Potter against John D. Long. Judgment for defendant, and plaintiff appeals. Affirmed.

This cause is now pending before this court upon an appeal on the part of the plaintiff from a decree and judgment in favor of the defendant.

This proceeding is one brought under the provisions of section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to ascertain and determine the title to 12 acres of land in the N. E. ¼ of the S. E. ¼, section 23, in township 24, range 26, lying south of Flat creek, in Barry county, Mo. The petition is in the usual form, and alleges that plaintiff has been for 20 years or more last past in possession of the land in controversy. It also alleges that defendant makes claim, asserts title, and interest in and to the property described in the petition. Then follows the prayer of the plaintiff that the court ascertain and determine the estate, title, and interest of the parties to this litigation in the real estate involved. The answer of the defendant denies that plaintiff is in possession of the premises mentioned, or any part thereof, and also denies that plaintiff has any valid claim to said premises, or that he is seised of an estate of inheritance in said premises thereof. The answer further alleges and states that the defendant is in the absolute and exclusive possession of said premises, and that he and his grantors and their ancestors have been in the peaceable, continuous, open, notorious, and adverse possession of said premises for more than 30 years before the institution of this action, and that defendant is the owner of said premises in fee simple absolute. Following this the defendant prays that the court adjudge and decree all the right, title, and interest claimed by plaintiff, of and to the said premises mentioned in plaintiff's petition, to be in defendant, and that plaintiff be divested of all claim thereto, and for all other proper relief.

Upon the trial it was conceded that Thomas Stockton was the common source of title. It was also shown that on the 7th day of August, 1856, Thomas Stockton and wife, by warranty deed, conveyed the land in controversy to Alexander Linn, which deed was duly recorded in the recorder's office, and on March 5, 1866, Alexander Linn and wife conveyed the said land, with other lands, to Thomas Jefferson Stockton. This deed was duly recorded on the 25th day of April, 1867, in Book H, of the recorder's office of Barry county, at pages 142 and 143, and recorded in Book 64, p. 267. Plaintiff also introduced in evidence a deed dated August 21, 1867, from J. Stockton and others, including T. J. Stockton, to B. G. Eden, by which it was sought to convey their interest in the real estate of Thomas Stockton, deceased; said deed being in the following words and figures:

"[50 cents. Thomas Stockton.]

"Know all men by these presents that James Stockton, and Rebecca Stockton, Jonathan Eden and Matilda Eden, and S. I. Stockton, Madison Walker, and Rachel Walker, of the county of Barry, and state of Missouri, for and in consideration of the sum of two hundred and seventy-five dollars, account to them in full satisfaction of B. G. Eden, of Barry county, state of Missouri, the receipt whereof is hereby acknowledged, do give, grant, bargain, and sell, and convey, unto the said B. G. Eden, and to his heirs and assigns, all our interest in the real estate, of Thomas Stockton, deceased, contained in the following described lot, tract, or parcel of land, viz.: Commencing at the south half of the northeast quarter of section twenty-three, in township twenty-four, of range twenty-six, and the northeast quarter, of the southeast quarter, of section twenty-three in township twenty-four, of range twenty-six, to have and to hold the above granted and bargained, premises with the appurtenances thereof unto the said B. G. Eden, his heirs and assigns, in fee simple forever, to their proper use and behoof, and further we the said James Stockton, Rebecca and Jonathan Eden and Matilda Eden, and T. J. Stockton, and Madison Walker and Rachel Walker, to covenant to and with the said B. G. Eden, that at and until the unseating of these present, we were seised of the above granted, and bargained premises, as a good and indefeasible estate in fee simple that the same are free from all incumbrance and that we will forever warrant and defend the title thereof to the said B. G. Eden, his heirs and assigns against all claims and demands whatsoever. And I Rebecca Stockton, wife of James Stockton, and Matilda Eden, wife of Jonathan Eden, and Rachel Walker, wife of Madison Walker, do hereby relinquish our right of dower in said estate as described for the above consideration aforesaid.

"In testimony whereof we have hereunto set our hands and seal this 21st day of August, in the year of our Lord one thousand eight hundred and sixty-seven.

                    "Samuel T. Clemens.       Matilda Eden
                    "Beththane Clemon
                           his                     his
                    "James  X  Stockton.      T. J. X Stockton
                           mark                    mark
                             her              Madison Walker
                    "Rebecca  X  Stockton.          her
                             mark             Rachel X Walker
                    "Jonathan Eden.                 mark
                

"State of Missouri, County of Barry—ss.:

"Be it remembered that James Stockton and Rebecca Stockton and Jonathan Eden and Matilda Eden and T. J. Stockton, Madison Walker, and Rachel Walker, who are personally known to the undersigned justice of the peace to be the persons whose names are subscribed, to the foregoing deed, to be the parties thereto, this day appeared before me and acknowledged that they executed and delivered the same as their voluntary act and deed, for the use above specified, and the said wives by me made acquainted with the contents of said deed, acknowledged that they executed the same and relinquished the right of dower in said estate, before me this 21st day of August, 1867."

To this deed counsel for defendant interposed an objection for the reason that it does not convey or purport to convey any interest of the grantor, except such interest as might be in the estate of Thomas Stockton, and for the further reason that the record of the deed as heretofore introduced by the plaintiff shows that the land in controversy had long before that time been conveyed to Jeff Stockton. Hence it is urged at the time of the execution of this deed the estate of Thomas Stockton owned no interest in this real estate, or did any of the parties by reason of being his heirs. The title had long since passed from Thomas Stockton. The objection to this deed is also urged that it is void for want of sufficient description of the property.

Plaintiff next offered in evidence a general warranty deed dated March 19, 1869, from Bolin G. Eden and wife to Peter Hought, which deed sought to convey the S. ½ of the N. E. ¼ of section No. 23, township No. 24, range No. 26, and the N. E. ¼ of the S. E. ¼ of section No. 23, township No. 24, of range No. 26, containing 120 acres. Following this there was offered in evidence a general warranty deed, dated February 26, 1871, which was filed for record October 22, 1904, Book 79, p. 620, from Peter Hought and wife and J. M. Stockton to Hastin Potter, by which deed it was sought to convey the same land as is described in the deed from Eden and wife to Peter Hought. Following this plaintiff offered in evidence a general warranty deed, dated the 13th of January, 1875, from Hastin Potter and wife, conveying to James T. Potter the land described in the immediately preceding deeds offered in evidence by the plaintiff.

Numerous witnesses were introduced by plaintiff, but we deem it unnecessary to set out their testimony in detail. It is sufficient to say that this testimony tended to show that the plaintiff had been in possession of the 12 acres of land in dispute in this action, and that plaintiff and his grantors had been paying the taxes on it for a number of years. The testimony of some of these witnesses tended to show that T. J. Stockton was occupying these premises as a mere tenant and accounting to the plaintiff for rent. There was other testimony introduced by the plaintiff to show that the defendant was the owner of 17 acres on the north side of Flat creek, the N. W. ¼ of the S. W. ¼ of section 22, which adjoins on the east the quarter section in which the land in controversy is located, and that the plaintiff claimed to own the 12 acres of land in controversy on the south side of Flat creek, and that by mutual consent, brought about by the way the creek cut through the two forties, it was agreed that Thomas Jefferson Stockton should use, occupy, and cultivate the 12 acres in controversy on the south side of the creek, and that plaintiff should use, occupy, and cultivate the 17 acres on the north side of the creek; the use and occupancy of the one being a stand-off for the use and occupation of the other. It was...