Rollins v. McIntire

• Citation: 87 Mo. 496
• Parties: ROLLINS, Appellant, v. MCINTIRE.
• Decision Date: 31 October 1885
• Court: Missouri Supreme Court

87 Mo. 496

ROLLINS, Appellant,

v.MCINTIRE.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Audrain Circuit Court.--HON. ELIJAH ROBINSON, Judge.

REVERSED.

Ira Hall for appellant.

(1) The judgment on the facts in evidence should have been for plaintiff on the equity count. (2) The sheriff's deed to Harrison was valid and effectual to convey Fenton's equitable title of the premises to Harrison. Although the judgment was obtained in 1840, the statute of 1849 authorized the issuance of execution thereon. Laws 1849, p. 92, art. 18, secs. 1 and 2; Bolton v. Landsdown, 21 Mo. 399. It was not necessary for plaintiff to show the order of court granting leave. The presumption is that the clerk did his duty and did not issue without authority. It would have been ground only for quashing the execution on motion of defendant if issued without leave of court. Long v. Joplin Mining Co., 68 Mo. 431-2; Perkins v. Quigley, 62 Mo. 498; Whitman v. Taylor, 60 Mo. 137. It could not be attacked collaterally anyhow, plaintiff being a stranger to the execution. Cabel v. Grubbs, 48 Mo. 353; Whitman v. Taylor, 70 Mo. 127, 137. (3) That there was a plat of the ground including the block in question is shown by the order of the county court upon its commissioner to have the same done and the actual sale of blocks therein by numbers, and the reservation of the block in the northwest corner for a graveyard; and, also, by the testimony of Clark and Allison, who saw it. Clark says it was in a till in the office of the circuit clerk, who was ex-officio recorder, where it was required to be “deposited.” See title Town Plats, R. S., 1835; Ibid., R. S., 1845, p. 1056. Besides both parties claimed their title from the same source. (4) Defendant bought with notice of plaintiff's claim. Digman v. McCollum, 47 Mo. 372, (5) The court should have given the instruction asked by plaintiff as to possession. Plaintiff built a substantial post and plank fence in 1871, which, in the usual course of nature, would have lasted fifteen years at least. Bartlett v. Draper, 23 Mo. 407; Draper v. Shoot, 25 Mo. 197; Schultz v. Lindell, 30 Mo. 310-19; Leeper v. Baker, 68 Mo. 405. (6) Plaintiff's instruction number four, as to payment of taxes by the Fentons, should have been given, showing no assessment to them of any real estate for thirty consecutive years prior to February 27, 1874, is pretty good evidence that they gave in none and was prima facie evidence against them that they paid no taxes on any and consequently none on that in suit; that they paid no attention to it at all. See 1 Greenl. Evid., sec. 48. (7) The instructions given for defendant were erroneous. The first is in direct conflict with instruction ( b) given for plaintiff as to showing nonpayment of taxes. And it is wrong in requiring it to be proven to and found by the jury, that neither the city of Mexico nor defendant paid any taxes upon the property during the thirty consecutive years next preceding the twenty-seventh of February, 1874, ( a) because, whilst the city of Mexico owned it, it was exempt from taxation. R. S., 1845, sec. 2, Ch. 147. ( b) The proof is that it was sold to James E. Fenton at a sale by the parties in whom the title was and upon whom the obligation to pay taxes rested during that period, viz: the Fentons. Plaintiff was not obliged to show that defendant paid no taxes within that period, for his claim and title dates only from November, 1881, the date of his deed. Vance v. Corrigan, 78 Mo. 94. Defendant's second instruction as to possession is misleading and improper, wherein it says “the extent of the land must clearly appear.” Actual occupation of a whole tract of land claimed by one in good faith under a deed to the whole, gives possession to such occupant, the real owner not being in posses; sion of any part of it. Turner v. Hall, 60 Mo. 271 - Bradley v. West, 60 Mo. 33; Schultz v. Lindell, 30 Mo. 310. The third instruction for plaintiff was wrong. Mansfield v. Pollock, 74 Mo. 186. Defendant's fourth instruction was wrong; there was no presumption in law of payment of taxes by them as therein declared.

Macfarlane & Trimble for respondent.

(1) The evidence failed to show that the land in controversy, viz: block seven in the county addition to Mexico was the same land as block seven reported by Commissioner Black as having been sold to James E. Fenton and to which the court ordered Commissioner Craddock to make a deed. Forrister v. Scoville, 51 Mo. 268. (2) The sale by Commissioner Black to Fenton, if one was made, was contrary to the statute (R. S.. 1835 chap. --, p. 599) and was illegal, and under said sale Fenton did not acquire a right which a court of equity would enforce, and he had no equity which could be sold upon execution. Sedgwick Con. Stat. 71; Downing v. Ringer, 7 Mo. 585; Hamilton v. Sculls, 25 Mo. 165; Howell v. Stewart, 54 Mo. 404; Saratoga Bank v. King, 44 N. Y. 87; Nellis v. Clark, 20 Wend. 37; Fenton v. Howe, 35 Mo. 409; Tracy v. Talmage, 19 N. Y. 26; Brooks v. Martin, 2 Wall. 70; Planters' Bank v. Main Bank, 16 Wall. 483; Skinner v. Henderson, 10 Mo. 205; Mason v. Kitt, 21 Mo. 392. (3) If Fenton had a vendible interest in the block in question, the judgment, execution sale and deed made by the sheriff were not sufficient to pass such interest to Harrison, the purchaser. R. S., 1845, ch. 90, p. 622, secs. 1 to 7; Laws 1849, art. 18, p. 92; Givens v. Campbell, 20 Iowa, 79; White v. Clark, 8 Cal. 513; Hay v. Hays, 46 Ill. 343; Ranson v. Williams, 2 Wall. 313; Finch et al. v. Martin, 19 Ill. 110; Williams v. Peyton, 4 Wheaton, 79; George v. Middow, 62 Mo. 549. (4) Fenton's conveyance in 1859 to James D. Fenton passed the title free from the pretended equitable title acquired by Harrison by virtue of the sheriff's deed. Harrison's equity, if he had any, did not appear of record. Willingham v. Hardin, 75 Mo. 429, and authorities cited. (5) The pretended sale by Commissioner Black of block seven was contrary to law and was void until executed by deed to Fenton by the county in 1856, and until such deed was made the property belonged to the county and was not subject to taxation. R. S., 1845, sec. 2, p. 928; R. S., 1879, sec. 3225. The land not being subject to taxation for thirty years next before the twenty-seventh of February, 1874, there could not have been such default on the part of defendant and those under whom he claims as would operate as a forfeiture of his title. (6) Divesting title from one and vesting it in another, as provided by section 3225, Revised Statutes, 1879, is an extraordinary method of passing title and in such case the party claiming should and will be required to prove every fact made necessary under the law to entitle him to the benefits of the law. Yankee v. Thompson, 51 Mo. Mo. 234; Abbott v. Dolan, 49 Mo. 302; Sedgwick Con. Stat. 302. (7) The rules applicable to titles acquired by adverse possession should not be applied under this law. Lawful possession must mean actual and not constructive possession. So actual possession of a part of a tract will not entitle the occupant to claim the whole. (8) The evidence shows the whole block was fenced and the conflict in the evidence was as to the condition of the fence in February, 1875. It was admitted that most of the fence was gone. Plaintiff's evidence tended to prove that there were, at places, posts and planks remaining, while defendants' evidence tended to prove that nothing was left, and between the two there was some evidence that there were posts and planks on one side only. Hence the propriety of the instruction that the extent (possession) of the land must clearly appear. (9) Defendant's third and fourth instructions were proper. If improper they were not misleading. The instructions all taken together placed the issues fairly before the jury. (10) The power of attorney from Fenton to Reddington was properly admitted, but whether it was or not could make no difference. An outstanding title was sufficient. (11) The payment of taxes subsequent to 1874 was not a fact relevant to the issues in the case, and the exclusion of testimony of payment of taxes down to the trial was proper.

RAY, J.

The petition in this case contains two counts; the first of which seeks to divest the defendant of the legal title to block seven, in the county's addition to the town of Mexico, in Audrain county, Missouri, and vest the same in the plaintiff, on the ground that the defendant took the deed under which he claims and holds the property in question, with full notice and knowledge of the prior rights and equities of the plaintiff thereto. To this count there is, also, a prayer for general relief. The second count is in the nature of an action of ejectment, and is in the usual form. The answer to both counts is a general denial. There was a separate trial on each of these counts; that on the first count, or equity branch of the case, was had before the court at the October term, 1881, and resulted in a general finding for the defendant, and judgment accordingly; that on the count in ejectment was afterwards had before a jury, in February, 1882, and resulted in a verdict for the defendant and judgment accordingly. After unsuccessful motions for new trials, the plaintiff appealed the case to this court.

It may be premised that, at both trials, a large mass of testimony, documentary and oral, was introduced, which need not here be set out in detail. It may be added, also, that most of this testimony was introduced by one party or the other, on the trial of both counts. It may be remarked, also, that it is objected by defendant, that the evidence fails to identify the block in question; or to show that the county addition to the town of Mexico had been surveyed, and the plat or map thereof filed or deposited in the recorder's office in said county, prior to the sale of said block in 1839, hereafter mentioned. This objection, however, is, we think, not well taken. Indeed, it is only...