Roberts v. Adkins
| Decision Date | 09 April 1928 |
| Docket Number | No. 26395.,26395. |
| Citation | 5 S.W.2d 70 |
| Parties | WILLIE MYRTLE ROBERTS, Appellant, v. R.A. ADKINS and CHARLES HIGGINBOTHAM. |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. — Hon. W.S.C. Walker, Judge.
AFFIRMED.
Ward & Reeves for appellant.
(1) The deed from John Cude to Matilda A. Cude, dated March 7, 1873, recorded May 22, 1873, reciting a consideration of one dollar and love and affection, receipt of which was acknowledged in the deed, should take precedence over the prior deed from John Cude to John M. Cude and Horner Cude, dated August 1, 1868, reciting a like consideration, but not recorded until September 21, 1877. The rule of law is that since the recited consideration of one dollar is a valuable consideration, although nominal, the one recorded first takes precedence over the other, in the absence of proof of fraud or actual notice of the prior deed on the part of the grantee in the subsequent deed, which was first recorded, and the burden of proof is upon the defendant to establish such fraud and notice. Strong v. Whybark, 204 Mo. 341; Harrison v. Moore, 199 S.W. (Mo.) 189; Hays v. Pumphrey, 226 Mo. 119; Anderson v. Cole, 234 Mo. 1; Forbes v. Ry. Co., 107 Mo. App. 661; Aubuchon v. Bender, 44 Mo. 560; Youngblood v. Vastine, 46 Mo. 239. (a) The one first recorded should be given precedence under the mandate of the statute, because there can be no equities in favor of the first grantee as against the second grantee, both being voluntary. Sec. 2200, R.S. 1919; Strong v. Whybark, 204 Mo. 341. If, as contended by defendant, the deed from John Cude to John M. Cude and Horner Cude dated August 1, 1868, but not recorded until September 21, 1877, should be given precedence over the deed from John Cude to Matilda A. Cude, dated March 17, 1873, recorded May 22, 1873, then the plaintiff owns an undivided one-fourth interest in the forty acres, instead of an undivided one-half interest; this, because of the deed from John M. Cude back to John Cude dated November 29, 1870. This placed back in John Cude an undivided one-half interest in the forty acres. The deed then from John Cude to Matilda A. Cude dated March 7, 1873, would convey an undivided one-half interest instead of the whole title to the land. Matilda A. Cude, when she died, would then own an undivided one-half, which was held under the curtesy of her husband until he died in 1921, when it descended to the plaintiff and her sister. (c) The only title claimed by defendant in the land in question is that obtained by him by mesne conveyances from Hiram L. Prewett, the father of plaintiff. Prewett then owned a life estate in this land, and he also owned by mesne conveyances the title of Mrs. M.J. Gregory, the sister of plaintiff. So the defendant has no title in any shape or form except the life estate of H.L. Prewett and the undivided one-half interest in fee of Mrs. M.J. Gregory. The defendant, as conceded by the record evidence in this case, never acquired any of the alleged interest of Horner Cude in the land in controversy. He claims an undivided interest in the property as stated by mesne conveyances from Mrs. M.J. Gregory, sister of plaintiff. The plaintiff owned the same interest as did Mrs. Gregory. (2) The law is, that when the grantee once records his deed he has done all the law requires, and, although the records be subsequently destroyed, legal notice of the recorded deed is still imparted to the world. Wall v. Hanford, 142 Mo. App. 395; Manwaring v. Mo. Lbr. Co., 200 Mo. 718; Weir v. Lbr. Co., 186 Mo. 388; Geer v. Lbr. & Mining Co., 134 Mo. 85; Crane v. Dameron, 98 Mo. 567; Williams v. Butterfield, 214 Mo. 426. (3) The defendant relies upon estoppel to defeat the plaintiff's record title. It is admitted by the record evidence in this case that Matilda A. Cude, the mother of plaintiff, acquired her title on March 7, 1873. She married Hiram L. Prewett in 1879 and continued to live with him until her death on December 6, 1884. So Matilda A. Cude owned this land and it was her general property under a warranty deed. No separate estate was created under the law as it existed at that time. When she married Hiram L. Prewett the latter, under the law as it existed prior to the Married Woman's Act of 1889, became the absolute owner and entitled to the possession of his wife's land as long as he should live. The act of marriage cast upon the husband an unqualified life estate in the land, and the wife neither had the right of possession nor could she maintain an action for possession. Prewett undertook to sell the land after the death of his wife, but he could not convey any more interest or title than he had, which was a life estate; nor could the plaintiff be guilty of laches or estoppel in and about the use and occupancy of the land, because the plaintiff could not, until the death of her father in 1921, assert any effective rights in or about the land in question. Neither estoppel, laches, the Statute of Limitation, nor the failure to pay taxes, can operate to defeat the plaintiff's title, short of a period of ten years after the death of her father. Powell v. Bowen, 279 Mo. 280; Falvey v. Hicks, 286 S.W. (Mo.) 385. (4) Respondent's contention is that by the partition proceedings in 1922 she was estopped from asserting her title to the forty acres in controversy. The respondent, Atkins, who was a stranger to the partition proceedings, cannot invoke them as estoppel or abandonment in this case. Atkins was not a party to that record, or to the judgment therein, and the same can in no way give him any legal concern in this case. To constitute estoppel at least three things must concur: First, there must be an admission, statement or act inconsistent with the claim afterwards asserted and sued on; second, acts or conduct by the other party on the faith of whose admission, statement or act; and third, injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act. These three things must concur in the case at bar. The defendant claims to have acquired title to this land on December 15, 1896. The plaintiff's conduct or acts in the partition suit in 1922 could not have been relied upon by defendant when he acquired his alleged title, nor was there any evidence in this case that the defendant Atkins has done anything to his injury or hurt since 1922 in reliance upon the plaintiff's conduct or position in the partition proceedings. Pollard v. Ward, 233 S.W. 17; McLain v. Trust Co., 237 S.W. 506; Vette v. Hackman, 237 S.W. 802; Schick v. Rehkop, 237 S.W. 209; DeLashmutt v. Teetor, 261 Mo. 412; Keeney v. McVoy, 206 Mo. 42; Acton v. Dooley, 74 Mo. 63.
John T. McKay and Langdon R. Jones for respondent.
(1) The recited consideration in the deed from John Cude to Matilda A. Cude, mother of appellant, to-wit. "one dollar and love and affection," and in the deed under which appellant claims, is not the "valuable consideration required by law to give such deed priority over the former deed, conveying the same lands, and executed by John Cude to his sons, John M. Cude and Horner Cude, and which last mentioned deed is in the chain of title under which respondent claims title to the property in controversy. Strong v. Whybark, 204 Mo. 347; Hays v. Pumphery, 226 Mo. 127; Aubuchon v. Bender, 44 Mo. 564; Moris v. Wicks, 81 Kan. 890; Dunn v. Dunn, 136 N.Y. Supp. 282; Sullivan v. Sullivan, 122 Ky. 707; Conklin v. Kruse, 36 L.R.A. (N.S.) 1124. (a) Even if such was a "valuable consideration" the burden to prove payment of the same would rest on the appellant. As to the respondent the recital in the deed is not prima-facie evidence. Conklin v. Kruse, 36 L.R.A. (N.S.) 1124. (b) Respondent has acquired the title of Horner Cude in this property under the Statute of Limitations. Secs. 1305, 1307, R.S. 1919. (2) The appellant, by her position in the partition proceedings of her father's estate, her statement and prayers as incorporated in her petition for partition, the result of such proceedings and her conceded profit thereby, has made her election of remedies (assuming she ever had concurrent remedies from which to elect), and she is now estopped to claim any interest in the land in controversy. Deer v. Deer's Estate, 180 S.W. 572; Abbott v. City of Senath, 243 S.W. 641; Trimble v. Bank, 71 Mo. App. 486; Nanson v. Jacob, 93 Mo. 345; Iron Co. v. St. Louis, 138 Mo. 618; Valles Heirs v. Flemings Heirs, 29 Mo. 164; Jelly v. Lamar, 242 Mo. 44; Plumb v. Cooper, 121 Mo. 668; Condit v. Maxwell, 142 Mo. 266; Sec. 2270, R.S. 1919.
This suit, filed in the Circuit Court of Dunklin County on August 23, 1923, involves a controversy between the plaintiff, Willie Myrtle Roberts, and the defendant Adkins, over the title to forty acres of land, described as the Northwest Quarter of the Southwest Quarter of Section 23, Township 17, north, Range 8, east, in Dunklin County. The plaintiff claims an undivided one-half interest in this land, and her petition is in two counts: first, to determine title, and second, in ejectment. Adkins, in his answer, denies plaintiff's alleged interest in the land, asserts his ownership of the same, in fee simple, by virtue of the record title and adverse possession, and specially pleads estoppel and other equitable defenses. The reply admits certain relationships between parties to the record title, as pleaded in the answer of Adkins, and denies all of the other affirmative allegations therein contained. Higginbotham, being in possession of the land in question, as a tenant of Adkins, was joined as a defendant for that reason only. Under the pleadings, the case was converted from an action at law into an equity proceeding. The trial chancellor found against the plaintiff and in favor of the defendants on all issues and rendered judgment accordingly. From that judgment, the plaintiff has perfected this appeal.
This forty acres of land was conveyed to Adkins by the...
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