Squires v. Kimball

• Decision Date: 10 December 1907
• Parties: SQUIRES v. KIMBALL et al.
• Court: Missouri Supreme Court

106 S.W. 502

208 Mo. 110

SQUIRES v. KIMBALL et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. VENDOR AND PURCHASER — BONA FIDE PURCHASERS — NOTICE — POSSESSION.

A person who buys property in the visible possession of a third person is chargeable with notice of the title and right of that person to the premises.

2. APPEAL — REVIEW — FINDINGS OF TRIAL COURT.

Findings of fact by the trial court on conflicting testimony will not be disturbed on appeal.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action in ejectment by James M. Squires against Margaret J. Kimball and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This cause is now before this court upon appeal by the plaintiff from a judgment of the circuit court of Boone county in favor of defendants in an ejectment proceeding. The petition is in the usual form, and need not be reproduced. This is a suit to recover possession of a small piece of ground, 20 feet east and west, by 150 feet north and south, and situated in the N. E. ¼ of the S. W. ¼ of section 15, township 51, range 11, in Boone county, Mo. The case was tried before the judge of the circuit court of said county sitting as a jury, and a verdict and judgment was rendered for respondents. Both parties claim title under George N. Johnson. The following plat, which is here reproduced, indicates the strip of land in dispute, as well as that embraced in the numerous deeds introduced in evidence:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On August 3, 1897, George N. Johnson and wife conveyed to Mary E. Jennings (now Mary E. Williamson) a tract of 105 feet from north to south, and 225 feet, more or less, from east to west, and extending from the middle of the road on the east "to corner stone on proposed alley"; the land conveyed being described on plat as "Squires." Mary E. Jennings conveyed the same land on February 22, 1898, to A. L. Cox, trustee, to secure the payment of a certain note due James W. Green. The next conveyance was one executed by George N. Johnson and wife to William A. Parks on August 17, 1900, and conveyed the balance of the land that he (Johnson) owned, the tract conveyed being situated on the north and west sides of appellant's land, and being described on the plat as "Kimball." The land conveyed by Johnson and wife to Parks by deed last above mentioned is described in said deed as follows: "To obtain the point or corner of beginning, commence at the corner of section (15) fifteen, township number (51) fifty-one, range number (11) eleven and run south forty feet to a stake as the point or corner of beginning; thence run south (105) one hundred and five feet to a stake; thence run west (225) two hundred and twenty-five feet; thence run south (105) one hundred and five feet; thence west (100) one hundred feet; thence run north (210) two hundred and ten feet to a stake; thence east (325) three hundred and twenty-five feet to the point or corner of beginning, be the same more or less. An alley (18) feet wide, running through said premises from north to south is reserved, and same to be opened when adjoining owners open up their said alley." On March 6, 1901, William A. Parks and wife conveyed the land last above described to defendant Margaret J. Kimball, making the same reservation with reference to the alley as was made in the deed from Johnson and wife to Parks. Mrs. Jennings, to whom Johnson and wife made the conveyance, having made default in the payment of the note secured by the deed of trust as heretofore mentioned, the land was sold by the trustee in pursuance of the provisions of the deed of trust, and on the 12th day of April, 1902, the trustee executed his trustee's deed to James W. Green, the purchaser at such sale. There was also introduced in evidence, over the objections of plaintiff, a quitclaim deed executed by James W. Green on March 11, 1903, by which he conveyed the land in dispute to the defendant Margaret J. Kimball. This deed, however, had never been recorded, and was not recorded for some months after the trial of this cause. Plaintiff introduced in evidence a deed executed on May 30, 1903, by James W. Green, who was unmarried, conveying the land purchased at the trustee's sale as heretofore mentioned. This deed, it will be observed, was executed and delivered subsequent to the quitclaim deed heretofore referred to.

This constitutes substantially the paper title of the respective parties. There was a great deal of oral testimony introduced, which was very much in conflict. On the part of the plaintiff, testimony was introduced tending to show that at the time the defendants purchased this land from Parks that Parks showed them the lines, which they recognized, and that the land in dispute was not intended to be included in such conveyance. On the other hand, defendants' testimony tended to show that Parks did not point out the lines of the land conveyed in this deed. There was other testimony introduced on the part of the plaintiff which tended to show conversations with the defendants, in which they said that they knew they did not buy the land, but their deeds covered it, and they would claim it. This testimony is also contradicted by the defendants testifying that no such conversation occurred. There was testimony introduced on the part of the defendants tending to show that, after James W. Green acquired his title, there was some talk about the eastern boundary of the land in dispute, and the defendants and said Green agreed that the west side of the barn on plaintiff's land should be the line, and that, in accordance with such agreement, in February defendants put their fence on said line and took possession of the land in dispute, and that in accordance with such agreement on March 11, 1903, executed the quitclaim deed as heretofore indicated, by which he conveyed the land in dispute to the defendant Margaret J. Kimball.

There was also a disputed question as to whether on the sides of the contemplated alley there were stones or stobs placed indicating the line. Upon this question there was testimony both ways — on the one side that the...