Price v. Hallett

• Decision Date: 03 April 1897
• Citation: 38 S.W. 451,138 Mo. 561
• Parties: Price et al. v. Hallett
• Court: Missouri Supreme Court

38 S.W. 451

138 Mo. 561

Price et al. v. Hallett

Supreme Court of Missouri, Second Division

April 3, 1897

Appeal from Chariton Circuit Court. -- Hon. O. F. Smith, Special Judge.

Affirmed.

C Hammond & Son, A. W. Mullins and L. Benecke for appellants.

(1) The first instruction given for respondent is wrong and misleading. In effect, it tells the jury that appellants have entirely failed to show any title to the land in controversy. It is in direct conflict with the second instruction given for appellants, in which the jury are instructed that adverse possession, if found from the evidence for a period of ten years by Abrogast, vested in him an absolute title to the land. (2) There was no evidence whatever to warrant the second instruction given for respondent. The uncontradicted evidence was that Cassabeer conveyed the land in controversy to Abrogast in September, 1869; that it became part of the Abrogast farm, and that Abrogast continued in the possession of all of the farm that remained for a period of ten years or more; that when this land was restored it was made back to the part of the farm that had not been cut away by the river that appellants succeeded to the Abrogast possession; that Nunn, who sold to Hallett, had no possession certainly until 1888, if then, and never any color of title. "The grantee of the person holding prior possession succeeds to his rights; and the plaintiffs made a prima facie case and the defendant must show title or leave." Dale et al v. Faivre, 43 Mo. 556. (3) No facts relied upon to establish an estoppel in pias were pleaded and no such issue made. The testimony that was relied upon to warrant this instruction was brought out in a controversy over a deed, whether or not it was originally written by Benecke for a certain number of acres, and afterward changed. Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Hammerslough v. Cheatham, 84 Mo. 13; Stones v. Richmond, 21 Mo.App. 17.

Tyson S. Dines and Crawley & Son for respondent.

(1) The infant plaintiffs named in the petition had no standing in the court, for the reason that they did not sue by guardian or next friend, as provided by statute. R. S. 1889, sec. 1997, et seq. The mother, as natural guardian, had no authority to sue for them. Sherwood v. Neal, 41 Mo.App. 416; McCarty v. Rountree, 19 Mo. 345. (2) The change of the land in February, 1886, from the south side to the north side of the main channel of the Missouri river, made it part of Chariton county from and after that date. R. S. 1889, sec. 3067. It follows, therefore, that the sale made at Marshall, Saline county, in October, 1888, purporting to foreclose the old school fund mortgage, and the deed executed by the sheriff of that county to Alfred Rector, from whom plaintiffs acquired their pretended title, were mere nullities, and passed nothing to the purchaser. (3) The evidence adduced at the trial was very conflicting as regards the identification of the land in dispute, so as to leave grave doubts as to whether or not any part of the lands occupied by defendant is fairly embraced within the description given in plaintiffs' deeds. In such cases the identification of the land becomes a question of fact for the jury, whose finding upon it ought not to be disturbed. Dausch v. Crane, 109 Mo. 323.

C. Hammond & Son for appellants in reply.

(1) The only objection made at the trial on the question raised in the first point of respondent's brief was to the right of the infant plaintiffs to sue by their mother, Emma Price, as their natural guardian and curator. The plaintiffs were permitted to amend by inserting the allegation, and the trial proceeded without further objection on that ground. The guardians and curators of minors are the proper persons to appear for them in all legal proceedings. (2) The river being the boundary line between Chariton and Saline counties, and having thus suddenly changed its course the boundary remained in the middle of the old channel, until the legislature by new enactment fixed the boundary line in the middle of the new channel. Rees v. McDaniel, 115 Mo. 145; Cooley v. Golden, 117 Mo. 33; R. S. 1889, ch. 44, sec. 2961. (3) Plaintiffs' grantors having owned and being in possession of the land when it washed away, the plaintiffs are entitled to it when it is re-formed. Minton v. Steele, 38 S.W. 746.

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

OPINION

Gantt, P. J.

This record presents another case growing out of the erratic action of the Missouri River. The land in controversy is claimed to be a part of a large tract which originally was attached to Saline county on the south side of the river but by the action of the currents has been transferred to the north bank and attached to Chariton county.

The process of transfer plaintiffs claim was complete in 1886. The particular portion of said land forming the basis of this action is the north half of the north half of the southwest quarter of section number 25, township 53, range 20.

If plaintiffs are right in their contention this land was originally a part of "Horse Shoe Bend" near New Frankford, in Saline county, between Glasgow and Brunswick. This "bend" included in the government survey parts of sections 23, 24, 25, and 26, range 20. The east half of section 25 was bounded by the river and was fractional. The west half was full. A plat of the original survey accompanies this opinion.

The evidence of plaintiffs tended to prove that the river began cutting away all the land on the west side of this "bend" many years ago, and in 1869 had cut away all of fractional section 26 and a large part of the west half of section 25. In that year, the evidence tends to show, one John Cassabeer was in possession of and claimed to own the remaining part of the north half of the north half of the southwest quarter of section [SEE MAP IN ORIGINAL] 25. On the first day of September, 1869, Cassabeer and wife by warranty deed conveyed said last named tract to Frederick Abrogast. Abrogast was already in possession of and claimed to own the fractional east half of section 25 and some other tracts. He had a farm with dwelling house and other farm buildings, and had a portion of it in cultivation. He continued in possession by himself and tenants until the most of his farm, including the twenty acres purchased of Cassabeer, was washed away by the river. Some time prior to 1878 the river had completely submerged the Cassabeer tract and all of the Abrogast farm save about thirty acres, and a small strip of the original "Horse Shoe Bend." About this time the river cut through the bend on its south or Saline county side, and thereupon sandbars began to form anew the "bend" on its west side. For some time, however, a channel of the river ran around the north end of the "bend," but gradually a large tract had formed to the west and adjoining the "bend" and the river ceased altogether to flow between the "bend" and the Chariton county shore. These alluvial formations soon became valuable cultivating land. The defendant and others squatted on these newly made lands, and their claim thereto is based entirely on adverse possession, without paper title thereto.

Neill Cabin is 23 Chains and 63

Nunn Dwelling is 300 Links North of

Links West, and 3 Chains and 63 Links

Line through Centre of Section 25,

South of Centre of Section 25,

Township 53, Range 20. Nunn Dwelling

Township 54, Range 20, and in

is the Southwest quarter of the

Northwest quarter of the Southwest

Northwest quarter of said Section 25

quarter of said Section 25.

and very close to the East Line

thereof.

During the time Abrogast was in possession, to wit, on the twelfth day of February, 1873, he executed a mortgage conveying said farm, including the Cassabeer tract or land in suit, to Saline county to secure $ 1,000, borrowed from said county, and stipulated therein "that should default be made in the payment of the principal and interest, or any part thereof, at any time, it should all become due and payable according to the tenor and effect of the bond thereby secured, and the sheriff of Saline county was authorized without suit to proceed to sell the said mortgaged premises to satisfy said debt and interest thereon."

Abrogast made default, and thereupon, on the fourth day of September, 1888, the county court of Saline county, by its order of record, found that said Abrogast was indebted to said county for the use of said school funds in the sum of $ 859.60, and that default had been made, and thereupon ordered that judgment be entered for said sum against Abrogast and his sureties, and made its order of sale of said property in said mortgage described to satisfy the same, and thereafter said order and judgment was duly certified to the sheriff of Saline county by the clerk of said court and was delivered to said sheriff on the sixth day of September, 1888, commanding him to levy the same on said real estate, and to sell the same according to law to satisfy said debt, interest, and costs, and thereupon said sheriff gave twenty days' notice of the time, terms, and place of sale, and the real estate to be sold, in a newspaper published in Saline county, and in pursuance thereof on the nineteenth day of October, 1891, by virtue of said execution and notice, sold said real estate at public vendue to the highest bidder at the courthouse door in the city of Marshall in said Saline county, during the session of the circuit court, and at said sale Alfred Rector became and was the highest and best bidder therefor and the same was struck off and sold to him, and thereupon said Rector, having paid said bid, the sheriff executed, acknowledged, and delivered his sheriff's deed to said Rector.

Afterward said Rector sold and conveyed said...