Potts v. Smith

• Decision Date: 30 June 1915
• Docket Number: No. 17116.,17116.
• Parties: POTTS et al. v. SMITH et al.
• Court: Missouri Supreme Court

178 S.W. 881

POTTS et al. v. SMITH et al.

No. 17116.

Supreme Court of Missouri, Division No. 1.

June 30, 1915.

Rehearing Denied August 9, 1915.

Appeal from Circuit Court, Pemiscot County; W. S. C. Walker, Special Judge.

Action by A. W. Potts and another against George W. Smith and another. From a judgment for plaintiffs, defendants appeal Affirmed.

On January 18, 1910, plaintiffs filed a petition in the circuit court of Pemiscot county aforesaid in two counts. The first is an ejectment, and the second an action to quiet title. The land in controversy in each count is the W. ½ of S. W. ¼ of N. E. ¼ of section 36, township 21 north, range 12 east, located in said Pemiscot county.

Answer.

The answer to first count admits that defendants are in possession of the premises described in said count, but deny every other allegation contained therein. The answer to second count avers that defendants are the owners of, and claim title to, the land described in said count, deny every other allegation contained therein, and pray judgment.

Defendants for further answer and counterclaim allege that on February 20, 1893, one Emily Taylor was the owner of the S. W. ¼ of N. E. ¼ of said section 36, and conveyed the same to one George W. Spears, with other lands; that one Lucy Jackson at said time owned the S. E. ¼ of N. E. ¼ and N. ½ of S. E. ¼ of S. E. ¼ of section 36 aforesaid, and other lands in said county, and conveyed the same to said George W. spears; that on December 11, 1893, said Spears, for value received, executed and delivered to one Sol Levy his two promissory notes of that date, each for the sum of $500, and each bearing interest at 8 per cent. per annum from January 1, 1894, one due January 1, 1897, and the other due January 1, 1900; that to secure said notes said Spears and wife executed and delivered to Henry C. Riley, as trustee, their deed of trust, conveying to him as trustee all of the above-described land; that said deed of trust was duly acknowledged and recorded in the recorder's office of Pemiscot county, Mo.

Defendants aver in said answer that the money used by said Spears in paying for said land bought from Emily Taylor, to wit, S. W. ¼ of N. E. ¼ of said section 36, was not the money of said Spears, but the property of his two infant children, Archie and Estelle Spears; that said Spears held the legal title to said land in trust for said Archie and Estelle Spears.

The answer alleges that said Spears died in 1896, and that said Archie and Estelle Spears entered into the possession of said S. W. ¼ of N. E. ¼ of section 36 aforesaid, and claim to own the same by reason of their equitable title and against the legal title held by said George W. Spears in his lifetime, and against the world.

It is further alleged that defendants claim title to said land by mesne conveyances from said Archie and Estelle Spears; that they and those under whom they claim title to said land, have been in the actual, open, notorious, continuous, exclusive, and adverse possession of said land ever since said date, claiming the same as their own under the title which the said Archie and Estelle held the same, to wit, their equitable title.

It is further alleged that in 1900 there was still due on said notes, the sum of _____ dollars, and that on said date one Edward De Lisle and Alphonse De Lisle, being the owners of said notes, requested one John W. McFarland, who was then the acting sheriff of Pemiscot county, Mo., to advertise and sell under said deed of trust 20 acres off the west side of what is known as the "Lucy Jackson place," the latter being the S. E. ¼ of N. E. ¼ of said section 36.

It is averred that the said De Lisles did not request said McFarland, the acting trustee aforesaid, to advertise and sell the west half of S. W. ¼ of N. E. ¼ of said section 36; that on May 5, 1900, said McFarland, as trustee aforesaid, offered for sale the west half of S. E. ¼ of N. E. ¼ of said section 36, known as the "Lucy Jackson place"; that at said sale said McFarland sold to one Lilbourn A. Lewis what was known as the "Lucy Jackson place"; that at said sale it was understood by said McFarland that he was selling said 20 acres off the west side of what was known as the "Lucy Jackson place"; and that said Lewis bought, and knew he was buying, said last-described 20 acres.

It is further alleged that said McFarland did not offer for sale, and was not requested by the holders of said notes to sell, the west half of S. W. ¼ of N. E. ¼ of section 36, and the said Lewis did not buy and did not bid on said 20 acres off the west side of said S. W. ¼, etc., but, in truth and in fact, the said McFarland at said sale offered for sale, and the said Lewis bought, the west half of what is known as the "Lucy Jackson place" of said section 36, and the west half of S. W. ¼ of N. E. ¼ of said section 36 was not offered for sale by said McFarland nor bought by said Lewis.

Defendants further aver that on May 5, 1900, said McFarland executed and delivered a deed to said Lilbourn A. Lewis, not for the west half of S. E. ¼ of N. E. ¼ of said section 36, but, by mistake, a deed was made by said McFarland to said Lewis for the west half of S. W. ¼ of N. E. ¼ of said section 36, instead of the 20 acres off the west side of S. E. ¼ of N. E. ¼ of said section 36, sold by said McFarland to said Lewis.

The answer further charges that on the _____ day of March, 1906, said Lewis sold to plaintiffs 20 acres off the west side of what is known as the "Lucy Jackson place," and, each believing that said "Lucy Jackson place" was properly described as the west half of S. E. ¼ of N. E. ¼ of said section 36, the said Lewis and wife executed and delivered to plaintiffs their deed in writing, duly acknowledged, intending to convey to them the place known as the "Lucy Jackson place," but, instead of describing said place as the S. E. ¼ of N. E. ¼ of said section, the same was by said mutual mistake described as the west half of S. W. ¼ of N. E. ¼ of said section 36.

Defendants further allege that plaintiffs in this case claim to own and have title to said land in question only by and through said deed made by said McFarland as trustee aforesaid to Lilbourn A. Lewis and the deed made by said Lewis and wife to plaintiffs. The answer then concluded by praying the court to declare them owners of said land, that they have the title thereto, and that plaintiffs have no right, title, estate, or interest, in said land, and that the deed from said McFarland to Lilbourn A. Lewis and the deed from said Lewis and wife to plaintiffs be canceled, for naught; held, and for general relief.

Reply.

The plaintiffs for reply to the new matter set up in said answer deny each and every allegation contained therein, except that which is specifically admitted. Further replying, they admit that Emily Taylor, being the owner of the land in controversy, made and delivered the deed to said George W. Spears set up in said answer, and that said Spears made and delivered the deed of trust and notes mentioned in said answer. They admit that said deed of trust was foreclosed, but deny each and every other allegation in said answer contained.

Plaintiff's Title.

(1) It is admitted that the title to W. ½ of S. W. ¼ of N. ¼ of section 36, township 21 north, of range 12 east, situate in Pemiscot, being the land in controversy, was in Emily Taylor as the common source.

(2) Emily Taylor conveyed said land, with other lands, by warranty deed, to George W. Spears, dated February 20, 1893.

(3) George W. Spears and wife on December 11, 1893, executed a deed of trust to Henry C. Riley as trustee on the land in controversy and other lands, to secure to Sol Levy, the payee therein named, two promissory notes of even date, each for $500, one payable January 1, 1897, and the other payable January 1, 1900, each bearing interest at the rate of 8 per cent. per annum from January 1, 1894, and reciting that if interest be not paid annually to become as principal and bear the same rate of interest. It is provided in said deed of trust that, should the said first parties, Spears and wife, fail or refuse to pay said debt, or the said interest, or any part thereof, when the same or any part shall become due and payable, according to the true tenor, date, and effect of said notes, then the whole should become due and payable, and said deed remain in full force. (Said deed of trust covered W. ½ of S. W. ¼ of N. E. ¼, and W. ½ of S. E. ¼ of N. E. ¼, 36-21-12.)

(4) Plaintiffs read in evidence a trustee's deed, from John W. McFarland, acting trustee, in the foreclosure of said deed of trust, to L. A. Lewis, dated May 5, 1900, conveying to him the W. ½ of S. W. ¼ of N. E. ¼ of said section 36, township 21, range 12, in Pemiscot county, Mo., for the consideration of $420. It recites that Henry O. Riley, the trustee in said deed of trust, refused to act, and that after giving 20 days' notice of time, terms, and place of sale, said land was sold to said Lewis for the consideration aforesaid.

(5) L. A. Lewis and wife on March 6, 1906, conveyed the land in controversy, by warranty deed, to plaintiffs A. W. and Laura Potts as tenants by the entirety.

(6) The file mark of petition was offered in evidence by plaintiffs, showing that the action was commenced January 18, 1910, and less than 10 years from the time Lewis received his deed.

Defendants offered testimony tending to sustain the new matter set up in their answer and counterclaim, a part of which was admitted in evidence by the court, and the remainder excluded.

In order to avoid repetition, we will consider the questions and evidence presented by defendants in the opinion which is to follow. The trial court found the issues and entered judgment in behalf of the plaintiffs herein, upon both counts of petition and in respect to the new matter pleaded in the answer. Motions for new trial and in arrest of judgment were duly filed, overruled, etc., and the...