Powell v. Bowen

• Decision Date: 14 June 1919
• Docket Number: No. 19550.,19550.
• Parties: POWELL et al. v. BOWEN et al.
• Court: Missouri Supreme Court

214 S.W. 142

279 Mo. 280

POWELL et al. v. BOWEN et al.

No. 19550.

Supreme Court of Missouri, in Banc.

June 14, 1919.

Rehearing Denied July 7, 1919.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Belle Powell and another against Mary Bowen and another. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions.

J. E. Duncan and J. R. Brewer, both of Caruthersville, for appellants.

C. G. Shepard, of Caruthersville, for respondents.

FARIS, J.

This is an action to determine interest in a certain parcel of real estate situate in Pemiscot county. Upon the trial below defendants had judgment, and plaintiffs, after the usual motions, appealed.

The facts are few and simple. Plaintiff Belle Powell married one John W. Powell on the 24th day of March, 1870, and ever since has been and was at the time of the bringing of this suit, on the 4th day of May, 1915, a married woman. While under all the disabilities of coverture, plaintiff Belle Powell (hereinafter for brevity, except where otherwise stated, referred to simply as "plaintiff") acquired title to the land in dispute. On the 15th day of September, 1882, plaintiff, together with her husband, attempted to convey this land by warranty deed to one Mark T. Leonard. The form of deed used in this attempted conveyance was not the general form of warranty deed in common use at that time in the state of Missouri, but seemingly this instrument followed an Indiana form. No point is made, however, upon any portion of this instrument, except the acknowledgment appended thereto, which is alleged to be defective. This acknowledgment constitutes the sole ground and raison d'être of this action. Omitting venue, signature, and seal of the officer taking the same, all of which are conventional and are not attacked, the acknowledgment to this deed reads thus:

"Before me, Fred P. Leonard, notary public in and for said county, this 15th day of September, 1882, personally appeared the within named Belle Powell and John W. Powell, both being personally known to me and acknowledged the execution of the annexed deed."

A part of the land in controversy was, at the time of the above attempted conveyance thereof, in cultivation and in the possession of the grantors. The grantees in the above instrument of conveyance—we so denominate it for convenience—thereupon took possession of this land, and they and their mesne grantees continued in possession, and were in possession thereof on the 4th day of May, 1915, when this action was brought.

The defendants derive their paper title from the above-mentioned conveyance to Mark T. Leonard. Leonard thereafter conveyed the land to one Willis Charles. Willis Charles gave a mortgage thereon to said Mark T. Leonard, which mortgage being foreclosed, the land was sold by the sheriff and purchased by one John Wilks, who entered into possession of the same and continued in possession thereof till his death. Upon the death of Wilks, the land was duly partitioned among his heirs, and the part here in dispute was set off to his daughter Mary, intermarried with one William J. Bowen, who are the defendants herein.

The several defenses interposed upon the trial will be summarized in the opinion, and no necessity exists for lengthening this statement by a recital of them here.

Upon the trial, the testimony of plaintiff Belle Powell was offered in evidence by deposition. Among other things shown therein was the nature of the contract made by plaintiff Belle Powell with her coplaintiff Bex A. Trimble. Touching this contract, plaintiff Belle Powell said in her cross-examination:

"I received information about March of this year from Bex A. Trimble that led me to believe that I could recover this land. Bex A. Trimble is one of the lawyers representing me in this case. He was to have one-half of (sic) 50% of any land recovered by suit or compromise. Mr. Trimble and the lawyers with whom he is associated in this matter are to pay all costs and expense and to hold me harmless in regard to the costs in this suit, or any suits that might be brought for this land or any part of it."

This plaintiff further testified that she sold the land to Mark T. Leonard, and that after she sold it to Leonard she "didn't have anything further to do about it," and that she had "never paid any taxes on it from that time, since she considered that she had no further interest in it, and abandoned all claims to it." As a part of plaintiffs' case they offered a quitclaim deed, dated April 30, 1915, from Belle Powell and her husband, John W. Powell, conveying to plaintiff Bex A. Trimble an undivided one-half interest in the land in dispute and other lands.

If any further facts shall become necessary to an understanding of the points involved, these will be stated in the opinion.

I. The sole source of paper title in defendants, as such title is disclosed by the record, is one Mark T. Leonard, to whom, as stated, plaintiff and her husband attempted to convey the land in dispute by warranty deed bearing date the 15th day of September, 1882. At the time plaintiff signed and delivered, and attempted to acknowledge the instrument in question, and for some ten months thereafter (see Laws 1883, p. 21) the law in force in this state, required that any officer taking the acknowledgment of a married woman to any deed of conveyance of real estate must examine such woman separate and apart from her husband (sections 680, 681, R. S. 1879) and so certify in the certificate of acknowledgment, and further certify that the wife executed such conveyance freely and without compulsion or undue influence of her husband.

Mere casual reference to the acknowledgment of the deed of conveyance from plaintiff and her husband to Leonard discloses a palpable lack of conformance to the certificate of acknowledgment with the law then force. That this deed was void is well settled—in fact, that it is so void is tacitly conceded by defendants.

Certain other facts, as shown in part by the foregoing statement, are either conceded by the parties or they are conclusively shown by the record. These we epitomize, and restate below some of them. They are: (a) That plaintiff was married March 24, 1870, and when she attempted, on the 15th of September, 1882, to convey the land in controversy to Leonard, was, is now, and continuously since said latter date has been a married woman and under all the disabilities of coverture which existed by law in this state until 1889 (section 6869, Revised Statutes of 1889); (b) that neither plaintiff, nor any one for her, nor her husband or any one for him, has paid any taxes of any kind on this land since September 15, 1882, but that such taxes, and all of them, have been, for all the years intervening, paid by defendants and those under whom defendants claim; (c) that since the dates last mentioned defendants and those under whom they claim title have been in the actual, open, notorious, continuous, exclusive, peaceable and adverse possession of the lands in controversy; (d) that these lands have grown in value by reason of the labor and money expended thereon, and on account of money expended for betterment taxes by defendants and those under whom defendants claim, from $800, their fair value when the attempted conveyance was made to Leonard, to $32,000, their present actual cash value; and (e) that by the contract of plaintiff Belle Powell with her coplaintiff Trimble, who is an attorney at law, this action is to be maintained and prosecuted by the latter at his own expense, and plaintiff Belle Powell is to be held harmless from all costs of suit and expenses, in consideration of her conveying to said Trimble a half interest In the land in controversy.

To escape the force of the legal conclusion, arising from the fact that plaintiff's deed to Leonard, the common source of title, is void, defendants urge that plaintiffs are barred by: (1) the 24-year statute of limitations; (2) the 31-year, or so-called 30-year, statute of limitations; (3) the 10-year statute of limitations as based upon the act of 1897 (Laws 1897, p. 74), and the alleged duty of plaintiff to have begun her action within 10 years after she was by the above act permitted so to do; (4) that the contract between plaintiff Belle Powell and her coplaintiff Trimble is champertous; (5) that plaintiff Belle Powell abandoned this land from September 15, 1882, till May 4, 1915; and (6) that plaintiffs have been guilty of such laches and acts in pais as to estop them from asserting title after more than 32 years have elapsed from the date of the attempted conveyance.

II. Coming to consider whether any of the above defenses are valid as against plaintiff's paper title, we might, without examining them for the sake of argument, concede that each and all of them except that of abandonment would be efficacious and would constitute complete defenses as against any person sui juris. The defense of abandonment, disassociated from other defenses, e. g., adverse possession, or a failure to pay taxes, has never been recognized as affecting title to real property at common law. For at common law, whatever the rule may have been under the Spanish or Civil law (Tayon v. Ladew, 33 Mo. 207), title to real property can neither be gained nor lost by abandonment operating alone (Robie v. Sedgwick, 35 Barb. [N. Y.] 319; Philadelphia v. Riddle, 25 Pa. 259; Perkins v. Blood, 36 Vt. 273). Because both the defense of Inches and that of estoppel in pais may be dealt with together, we do not stop to consider again whether laches may be imputed even to one sui juris when such one puts forward as the basis of his action nothing but a pure legal title. See Kellogg v. Moore, 271 Mo. loc. cit. 193, 196 S. W. 15; .Garrison v. Taff, 197 S. W. loc. cit. 274; Newbrough v. Moore, 202 S. W. loc. cit. 551; Bell v. George, 204 S. W. loc. cit. 519; Chilton V. Nickey, 261 Mo. loc. cit. 243, 169 S. W....