Schofield v. Harrison Land & Mining Co.

• Court: Missouri Supreme Court
• Writing for the Court: Woodson
• Citation: Schofield v. Harrison Land & Mining Co., 187 S.W. 61 (Mo. 1916)
• Decision Date: 02 June 1916
• Parties: SCHOFIELD et al. v. HARRISON LAND & MINING CO.

187 S.W. 61

SCHOFIELD et al. v. HARRISON LAND & MINING CO.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

Appeal from Circuit Court, Dent County, L. B. Woodside, Judge.

Action by Mary E. Schofield and others against the Harrison Land & Mining Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

See, also, 139 Mo. 467, 41 S. W. 234, 61 Am. St. Rep. 464.

This was a suit at law under section 2535, R. S. Mo. 1909, to ascertain and adjudge title to 240 acres of land situate in Dent county, particularly described in the petition. It was bought October 24, 1911. The trial resulted in a verdict and judgment for the defendant, and the plaintiffs duly appealed the cause to this court. The paper title to the land was conceded to be in the plaintiffs, but they had paid no taxes on the same since before 1879. The defendant interposed the 10 and 30 year statutes of limitations as a defense in the case. The defendant, through mesne conveyances, claimed title to said lands from Joseph A. Schofield, the ancestor of plaintiffs. Said lands were sold by the sheriff under tax judgments against said Schofield; part in the year 1879, and the remainder in 1880.

It is conceded, however, those deeds were void and conveyed no title whatever to the lands; but defendants contend, and their evidence tended to show that when it and those through whom it claims title took possession of the lands under said deeds, they constituted color of title. That shortly after the sale of said lands for taxes, the Nova Scotia Iron Company duly acquired the same from the purchasers at said sales, and some 10,000 additional acres in the same vicinity from other parties, and took possession thereof and constructed a large blast furnace for the manufacture of pig iron, and built a good-sized town thereon, consisting of stores, residences, and barns, for the accommodation of the several hundred people who were employed by the defendants' predecessors, at a cost of more than $200,000. Said company, in the year 1880, began the manufacture of pig iron at said furnace, and continued to so do for 4 years, and cut the timber from several thousand acres of said land for fuel in the operation of said furnace. That said plant was a losing proposition, and after 4 years it was dismantled and moved to another state. The residences, barns, etc., were left standing for the accommodation of such of the former employés who were left in charge of the property.

The principal stockholders, Harrison, Lackland, and Howard, in the meantime, had loaned to said company, it being a corporation, $20,420, and in satisfaction of that indebtedness, the company conveyed to them all of its property, including the land in controversy; and later in the year 1890, said stockholders incorporated the defendant company and conveyed all of said land to it by one deed; and that since said time said company has been claiming said lands, paying the taxes thereon and protecting the timber, as will be presently stated. That T. J. Scott, one of the former employés of the Nova Scotia Company, was left in charge of all its lands as agent or superintendent, and as such he leased several small tracts of the land to various persons; one to S. C. Ramsey, a part of the land in controversy. That was in the year 1883 or 1884. Under the agreement Ramsey was to cultivate and fence as much of the land as he desired, and in consideration thereof he was to preserve and protect the timber on the adjoining lands of the company. In pursuance to that agreement Ramsey inclosed and cultivated 10 or 12 acres of this land, and always recognized the defendant as his landlord, and patrolled the adjoining lands of defendant and protected it from trespassers. That after the dissolution of the Nova Scotia Company E. L. Dye procured some kind of a title to the land in section 11, another part of this land, and took possession of the same and built a box house thereon and operated a sawmill on an adjoining section. Dye claimed under a deed based on what was known as the Butler sale of Scotia lands. Butler obtained a judgment and sold some of the Scotia lands after the conveyance to Harrison, Lackland and Howard. Butler attacked this conveyance, but was unsuccessful. The rights of the parties were determined in this court and the case is reported in Butler v. Harrison Land & Mining Co., 139 Mo. 467, 41 S. W. 234, 61 Am. St. Rep. 464. During the time Dye occupied the lands, he built a small house, cleared out and fenced about 12 acres of the land and cut the pine timber off of the southwest quarter of section 11. In a subsequent action of ejectment against him, the possession was adjudged to the Harrison Land & Mining Company, and Dye vacated the land and the company took possession, through its agent, D. B. Ball, and placed a tenant in the house, and has ever thereafter kept one there.

The Harrison Land & Mining Company employed D. B. Ball as agent to look after all of the lands belonging to this company and to lease the lands to tenants and to protect and care for all of the lands and timber, and prevent trespassing. Mr. Ball has acted in this role for more than 18 years, at the date of this trial, and has gone over the lands periodically about once a month and has prevented practically all trespassing on said lands, except by Dye, who claimed to have bought the land. This was particularly true of the lands in dispute, which were also under the protection of Mr. Ramsey. The land is rough, not worth much without the timber. Only about 40 acres in section 11 is susceptible to cultivation.

The possession of Ramsey was open and notorious, and the possession of the land in section 11, by Cisco, Hulsey, and Sapaugh, under the permission of Ball, was open, notorious, and exclusive.

It was admitted by the plaintiffs in the trial that neither they nor their ancestor had paid any taxes on the lands for 30 years. It was proven they never had been in the possession of the lands, and that since the date of the tax sale the Nova Scotia Iron Company and its successors in title had discharged all of the taxes on the same and had been claiming the title thereto. After the Nova Scotia Iron Company acquired it, all of the lands which they owned were treated and conveyed as one tract to the three stockholders and from them to the defendant, and the plaintiffs' ancestor and predecessors in title at no time conveyed the lands in any other way.

The evidence for the plaintiffs tended to disprove adverse possession of the defendant for the requisite period of time to ripen into title.

J. D. Gustin and Jackson C. Stanton, both of Kansas City, and R. L. Horsman, of Salem, for appellants. Wm. P. Elmer, of Salem, for respondent.

WOODSON, J. (after stating the facts as above).

I. The court, at the request of the plaintiffs, gave a number of instructions which need not be questioned and need not be considered, as they are binding upon them, whether they correctly declare the law or not.

Counsel for plaintiffs requested the court to instruct the jury that in passing upon good faith of the defendant, and those through whom it claims, in taking possession of the land that they should take into consideration all of the facts and circumstances in the case, including the purpose for which the land was required, the length of time for which said possession was claimed, the character and nature of the improvements, if any, the purposes for which the land was used, the extent of the cultivated land compared with the amount of tillable land in the whole tract, etc. This instruction was by the court refused, to which action of the court the plaintiffs duly excepted.

If error, that action of the court was not reversible error, for the reason that there was no evidence...