Snyder v. Chicago, Santa Fe & California Railway Company
| Citation | 20 S.W. 885,112 Mo. 527 |
| Parties | Snyder, Appellant, v. The Chicago, Santa Fe & California Railway Company |
| Decision Date | 06 December 1892 |
| Court | United States State Supreme Court of Missouri |
Appeal from Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.
Reversed and remanded.
Crawley & Son for appellant.
(1) The holder of a prior recorded mortgage is not bound to speak and silence in such cases works no estoppel. Walker v Railroad, 57 Mo. 275; Barrett v. Johannes, 70 Mo. 439. (2) Counties and beneficiaries in mortgages to secure school moneys are not estopped to foreclose such mortgages by reason of the neglect, acquiescence or misconduct of county officers. Marion Co. v. Moffet, 15 Mo. 604; Ray Co. v. Bentley, 49 Mo. 236; Cedar Co. v. Johnson, 50 Mo. 225; Jones v Mack, 53 Mo. 147; Board of Ed. v. Boyd, 58 Mo. 276; Sturgeon v. Hampton, 88 Mo. 203; Heidelberg v. St. Francois Co., 100 Mo. 70; Knox Co. v. Goggin, 105 Mo. 182. (3) Purchaser at sale under a prior recorded mortgage takes the title unaffected by previous conduct or acquiescence on his part, as holder of a junior mortgage, though such conduct or acquiescence be sufficient to estop him from asserting said junior mortgage. McShane v. Moberly, 79 Mo. 41. (4) Any pleading, motion, application or affidavit, filed in court by a party to a pending cause, or his attorney of record, may be used against him in any other cause, as an admission of the truth of the matters stated in such paper. Dowzelot v. Rawlings, 58 Mo. 75; Turner v. Baker, 64 Mo. 218; Utley v. Tolfree, 77 Mo. 307; Pomeroy v. Benton, 77 Mo. 64; Schad v. Sharp, 95 Mo. 573; Bogie v. Noland, 96 Mo. 85; Murphy v. Type Foundry, 29 Mo.App. 541. (5) Defendant's first instruction should have been refused. A mortgage to secure public school moneys, being a grant to a public use, is expressly excepted from the operation of the statute of limitation relating to lands. As against the title acquired by plaintiff under the county mortgage, limitation could not commence to run until his purchase at foreclosure sale, July 12, 1889. Revised Statutes, 1889, sec. 6772; Revised Statutes, 1879, sec. 3227; General Statutes, 1865, p. 746, sec. 7. (6) Defendant's second instruction should have been refused. As a definition of adverse possession, it is incorrect and misleading. Sedgwick & Wait's Trial of Titles to Land [2 Ed.] sec. 730, p. 568, et seq.; 2 Jones on Mortgages [4 Ed.] sec. 1211. Possession by the mortgagor and his grantees is presumed to be friendly and not adverse to the mortgagee. Atchison v. Pease, 96 Mo. 566. A mere license or conveyance from a mortgagor in possession gives his licensee or grantee, having notice of the mortgage, no greater right or better title than the mortgagor himself had, and if such licensee or grantee with notice enters upon the land, and makes valuable improvements thereon, he does so at his own peril. 1 Jones on Mortgages [4 Ed.] sec. 676; 1 Hilliard on Mortgages [4 Ed.] p. 167, sec. 17. 1 American & English Encyclopedia of Law, title, "Adverse Possession," p. 245, sec. 14, and cases cited. Defendant's third instruction should have been refused. There is nothing in the record upon which to base it. (7) It is not necessary that an estoppel in pais be specially pleaded in ejectment suits. Tyler v. Hall, 106 Mo. 113. But, if the pleader elect to plead it specially, the matters alleged must make a prima facie case. Bigelow on Estoppel [2 Ed.] ch. 23, p. 532; Bliss on Code Pleading [2 Ed.] sec. 364; Bank v. Doran, 18 S.W. 836. "To constitute an estoppel in pais, there must have been a false representation or concealment of material facts made with knowledge of such facts to one who was ignorant of the truth of the matter, with intention that he should act upon it, and the other party must have been induced to act upon it." Blodgett v. Perry, 97 Mo. 263, and cases cited; Bigelow on Frauds [1 Ed.] p. 458; Bigelow on Estoppel [2 Ed.] p. 437; Bispham's Principles of Equity [3 Ed.] ch. 4, p. 347 et seq.; 3 Washburn on Real Property [3 Ed.] p. 77. No estoppel where the means of knowledge are equally open to both parties, or where the muniments of title to which the supposed estoppel relates are of record. Cooley on Torts, p. 310; Bronson v. Wanzer, 86 Mo. 408; Mason v. Black, 87 Mo. 329; Hagerman v. Sutton, 91 Mo. 519; Wolfe v. Dyer, 95 Mo. 545; Blodgett v. Perry, supra, 273; Railroad v. Richards, 19 A. 931. No estoppel where the person setting it up acted without reference to the conduct or acquiescence complained of. 7 American & English Encyclopedia of Law, title, "Estoppel," p. 17, sec. 5; Bigelow on Estoppel [2 Ed.] 492; 3 Washburn on Real Property [3 Ed.] p. 75. An estoppel can have no greater effect than would a release deed of the same date, executed by the party sought to be estopped. 3 Washburn on Real Property [3 Ed.] pp. 74, 75; Mueller v. Kaessmann, 84 Mo. loc. cit. 327; Henry v. Sneed, 99 Mo. loc. cit. 426. No estoppel as against a superior recorded title, subsequently acquired, over which the party sought to be estopped had no control at the date of the acts or acquiescence alleged. Barrett v. Johannes, 70 Mo. 439; McShane v. Moberly, 79 Mo. 41; McCormick v. James, 36 F. 14; People v. Miller, 44 N.W. 172.
Gardiner Lathrop, Isaac H. Kinley and S.W. Moore for respondent.
(1) Plaintiff is estopped to recover. Where the land-owner, by his deed or acquiescence or license, induces a railroad to build its road, make permanent and costly improvements upon the strength of such contract, he will not be permitted to maintain ejectment. McClellan v. Railroad, 103 Mo. 313; Baker v. Railroad, 57 Mo. 265; Bradley v. Railroad, 91 Mo. 493; Provolt v. Railroad, 57 Mo. 256; Hubbard v. Railroad, 63 Mo. 68; Masterson v. Railroad, 72 Mo. 342; Gray v. Railroad, 81 Mo. 126; Cory v. Railroad, 100 Mo. 282. (2) "Where abutting lot-owners who own the fee of a street stand by during a period of three years after authority has been granted to a railroad to construct its track in the same, they will be deemed to have acquiesced in the use of the street for railroad purposes, and will be estopped thereby from maintaining an action of ejectment against the company." 2 Wood on Railroad Law, sec. 792; Wood v. Railroad, 33 Beav. 290; Railroad v. Nye, 113 Ind. 223; Deere v. Guest, 1 N. Y. L. & Craig, 515; Railroad v. Saltweddle, 116 Ind. 257; Sherlock v. Railroad, 115 Ind. 22; Trenton v. Chamber, 1 Stock. 475; Carson v. Coleman, 3 Stock. 106; Pricket v. Ridgefield, 10 C. E. Green, 316; Railroad v. Boorm, 1 Stew. 450. (3) The right derived by plaintiff, by the purchase of the property in controversy at the sale under the county mortgage, is not sufficient to maintain ejectment. The mortgagor for many years had been in default; the mortgagee had long been entitled to take possession of the premises. Masterson v. Railroad, 72 Mo. 347; Chouteau v. Riddle, 19 S.W. 814. (4) That a state or municipal corporation may estop itself by its acts seems to be well settled. State v. Bailey, 19 Ind. 452; Sedgwick & Wait on Trial of Titles to Land, sec. 854; State v. Milk, 11 Biss. 197; Commonwealth v. Andre, 3 Pick. (Mass.) 224; Commonwealth v. Pegepsent, 10 Mass. 155; People v. Society, 2 Paine, 545; People v. Maynard, 15 Mich. 463; Cahn v. Barnes, 7 Saw. 48; Bigelow on Estoppel, 278. (5) Under the evidence it is clear that plaintiff is barred of his action by reason of two years' adverse possession in the defendant. The defendant, since March 7, 1887, has been in the continuous, open, notorious and adverse possession of the property in controversy claiming under a warranty deed of O. H. Wood. Bushey v. Glenn, 107 Mo. 331; Neelson v. Chariton Co., 60 Mo. 333.
This suit is ejectment to recover a strip of land through the southwest quarter of section 11, township 56, range 19, in Chariton county, which is occupied by defendant and used for the track of the main line of its railway between Kansas City and Chicago. The suit was commenced September 25, 1889. The answer was a general denial and two pleas of estoppel.
It was admitted on the trial that the land in dispute is military bounty land. It was admitted also by the pleadings and on the trial, that John B. Holloway was the common source of title; that on the twenty-eighth day of May, 1867, the said Holloway made and delivered to the county of Chariton a mortgage on said southwest quarter to secure the payment of about $ 1,400, borrowed by him of the school fund of said county; that about January, 1882, said Holloway sold and conveyed said land to O. H. and E. J. Wood, subject to said county mortgage; that on the ninth day of February, 1882, the said O. H. Wood made and delivered to James Snyder a deed of trust on said land to secure to plaintiff, Benjamin F. Snyder, a note for $ 1,050, due one day after date, with power of sale. The interest on the county debt was paid annually by Holloway until he sold to Wood, and after that by Wood until 1889, when the interest for 1888 was not paid.
It appears from the evidence that preliminary surveys for the location of defendant's road were made through this land some two years before work was commenced. After such preliminary surveys had been made and stakes set indicating several lines through this land, plaintiff and O. H. Wood went upon the land and examined the different lines, and from some marks inferred that defendant contemplated putting a depot on it. The evidence tended to prove that plaintiff then gave Wood authority, if a depot was put upon the land, to give the right of way through the tract, and also ground for depot purposes. But if the depot was not located on the land then he should get all out of defendant he could obtain for right of way.
The road was finally located through this land, but no depot was put upon it. About the...
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