Riley v. O'Kelly

• Decision Date: 31 May 1913
• Citation: 157 S.W. 566
• Parties: RILEY et al. v. O'KELLY et al.
• Court: Missouri Supreme Court

157 S.W. 566

RILEY et al. v. O'KELLY et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. EJECTMENT (§ 82) — QUIETING TITLE (§ 43) — ISSUES — TITLE OF COMMON ANCESTOR.

Where in actions to quiet title or in ejectment the adversary parties prove, admit, or assume a common source of title, the only issue is which of the parties acquired the title of the common ancestor or grantor, and such common ancestor's or grantor's title is not in issue.

2. PLEADING (§ 430) — ISSUES — TITLE OF COMMON ANCESTOR.

In an action to quiet title, in which plaintiffs relied upon the title of J. Q. C., claimed to have been acquired from the county and in which defendant offered in evidence a deed to him from J. J. C. stating that he did so on the ground that it had not been shown that J. J. C. was not an heir of J. Q. C. "who entered this land and has been dead for 40 years," and requested instructions based on the theory that J. Q. C. obtained title, the doctrine of common ancestor applied, and plaintiff's failure to prove that J. Q. C. acquired title from the county was not fatal.

3. TRIAL (§ 418) — DEMURRER TO EVIDENCE — WAIVER.

Where in an action to quiet title plaintiffs failed to prove that the party under whom they claimed acquired title from the county, but defendant after demurring to the evidence offered evidence and asked instructions basing their title on the title of the party under whom plaintiffs claimed, they waived such failure of proof, since they were bound to stand on their demurrer, and, having failed to do so, plaintiffs were entitled to the benefit of any testimony and proceedings subsequently had in the case in determining whether they had established their cause of action.

4. ATTORNEY AND CLIENT (§ 70) — PROOF OF ATTORNEY'S AUTHORITY — PRESUMPTIONS AND BURDEN.

The authority of a duly licensed and practicing attorney to represent the party in whose behalf he appears in an action is presumed until challenged in some adequate way, and the burden of disproving such authority is on the party questioning it, unless the client denies the authority, in which case the burden is on the attorney.

5. ATTORNEY AND CLIENT (§ 71) — PROOF OF ATTORNEY'S AUTHORITY — MANNER OF CHALLENGING AUTHORITY.

The defendants in an action could not challenge the authority of plaintiff's attorney to represent one of the plaintiffs by merely offering evidence on the trial that he had not been expressly authorized, but should have challenged his authority by a motion supported by affidavits.

Appeal from Circuit Court, Pemiscot County; Robert G. Ranney, Special Judge.

Action by H. C. Riley, Jr., and another, against H. H. O'Kelly, Jace Fisher, and another. From a judgment for plaintiffs, the defendants named appeal. Affirmed.

This is a suit to quiet title to 80 acres of land lying in Pemiscot county, Mo., and which is a part of the donation of swamp and overflowed lands made to this state by the United States through an act of Congress, approved 28th of September, 1850, and subsequently granted by the state to the said county.

By an act of the General Assembly of this state (Session Acts 1855, p. 154), provision was made through the instrumentality of registers of lands and receivers of public moneys within certain counties of the state for the acquisition of title to such lands under a patent to be issued by the Governor of the state upon compliance by the purchasers with the provisions of said act. This statutory rule obtained in such matters until February 27, 1857 (Session Acts 1856-57, p. 271), when the Legislature provided for the issuance of patents to such lands to purchasers after that date in certain counties including Pemiscot, by authorizing and directing the patents to be made in the name of the state and under the seal of the county court of said counties "signed by the president thereof, and attested by the clerk" whenever it was shown that the grantee had made full payment for such lands according to the terms of sale and in conformity with the statutes authorizing the sale. Said act further provided (section 3): "Such patent shall be recorded before delivery in the office of the clerk of the courts issuing the same, and such patent and the record thereof, by such clerk, or by any other officer authorized to record deeds and other instruments in writing, and copies of such records, duly authenticated, shall be received in evidence in all courts, and other places, in the same manner, and with like effect, and may be used as fully for all purposes as patents for lands issued by the United States, or deeds duly proven or acknowledged, or the record of the same are received, or can be used in this state, and shall, at all times, and in all courts, and other places, be received as prima facie evidence of title to the lands and real estate therein named." The statute also made it the duty of the government to furnish to the said counties a list of the same swamp lands lying therein which should be recorded in the office of the recorder of deeds and filed in the office of the clerk of the county court and should be made a public record, and that copies of said list or the record thereof should be prima facie evidence that the lands therein described were granted by Congress to this state and by this state donated to such counties. The act further provided that it should be "a public act and in force from its passage." In order to carry out the provisions of this act, and at the same session, the General Assembly on November 4, 1857 (Acts of Adg. Sess. 1857, p. 269), passed an act entitled "An act supplementary to an act, entitled `An act in relation to the disposal of swamp lands in the counties of Cape Girardeau, Dunklin, Mississippi, New Madrid and Pemiscot, approved February 27, 1857.' Be it enacted by the General Assembly of the state of Missouri, as follows, Sec. 1. That the secretary of state is hereby required to return by due course of mail, all the certificates of entry and payment of and for said lands, to the respective county courts named in said act, and that the county courts of the respective counties so named shall have the entire control of the matters contemplated in said act, any law to the contrary notwithstanding. This act to be in force from and after its passage. Approved November 4, 1857."

The public records of Pemiscot county were destroyed by fire in 1882.

Carleton's Abstract (see respondents' additional abstract) was offered in evidence on the trial of this case and contains the following recitals: "Date January 25, 1858 No. of entry 815 to whom sold John Q. Cormack. Residence Pemiscot county, Missouri, description of land east half of the southeast Qr., section 7, township 20, range 13 east; number of acres 80; price per acre, $1.25 amount received, $100.00 total $100.00, script No. 791."

The plaintiffs adduced evidence that John Q. Cormack, who was spoken of by some of the witnesses by the surname of Cormack or McCormack, lived upon this land five or six years after the date (January 25, 1858) mentioned in the above excerpt from Carleton's Abstract, when, about 1865, he died, leaving a widow and five children, four of whom died without issue and one left as his sole heir died leaving her plaintiff Lavinia Beach; that the widow subsequently married a Mr. Garner, to whom she bore several children, and died leaving these and her granddaughter, plaintiff Lavinia Beach, as her heirs; that plaintiff H. G. Riley, Jr., has acquired by deeds all the interest of the said Garner children in and to said lands. Plaintiffs adduced oral testimony tending to prove that McCormack purchased the land in question by scrip which had been given him for work done upon the construction of a levy built in Pemiscot county prior to the Civil War.

There were three defendants to the cause of action brought by said Henry C. Riley and Lavinia Beach, two of whom answered, claiming title in fee to the land. The other answered separately also claiming title in fee to the land, and denying that his codefendants had any interest or title therein.

At the close of plaintiffs' case, defendants filed a demurrer to the evidence, which was overruled. Thereupon, defendants introduced J. R. Brewer, who testified that he was one of the attorneys in the case and that he made Lavinia Beach a coplaintiff in the case prior to going into trial; that he had no communications from her on the subject, but that he discovered that she was one of the heirs and was requested to do so by a Mr. Garner, who was her half-cousin. The defendants further introduced in admission that a suit is now pending in the circuit court of Pemiscot county, wherein defendant John Pigg is plaintiff and defendant H. H. O'Kelly is defendant for the purpose of determining title to this land. The defendant O'Kelly then offered in evidence what purported to be a warranty deed to him, dated January 25, 1909, wherein the grantor appeared to be John J. Cormack, and which purported to convey this land for a consideration of $5. This deed was objected to by counsel for plaintiff on the ground that there was no evidence that the grantor therein ever owned or had any interest or title in this land, but that the evidence showed the title was originally in John Q. Cormack. Thereupon counsel for defendant made this statement and the court made the following reply:

"Mr. Collins: We have some other reasons; the first is, John Q. Cormack, who entered this land, had been dead for forty years, and not John J. Cormack, who purports to convey this land; for the further reason that there is no evidence to show that John J. Cormack is not an heir of John Q. Cormack.

"Court: If this is all the evidence you have, I will have to exclude the deed from the jury. The proof here yesterday shows very clearly that the man who owned this land died in 1865, a good many years before the execution of this deed which...