Stewart v. Lead Belt Land Co.

• Decision Date: 22 December 1906
• Citation: 98 S.W. 767,200 Mo. 281
• Parties: STEWART v. LEAD BELT LAND COMPANY et al., Appellants
• Court: Missouri Supreme Court

98 S.W. 767

200 Mo. 281

STEWART v. LEAD BELT LAND COMPANY et al., Appellants

Supreme Court of Missouri, Division One

December 22, 1906

Appeal from Madison Circuit Court. -- Hon. Robert A. Anthony, Judge.

Reversed and remanded.

M. R Smith, Moses Whybark, B. B. Cahoon, Sr., and David M. Tesreau for appellants.

While it is true that certified copies of entries of land, made by the register of the U. S. land offices, are evidence of the fact of entry of real estate from the Government of the United States, yet no such certified copy or copies were offered and in this case plaintiff wholly failed to show that the title to the land had ever passed out of the United States Government. Consequently, he utterly failed to make good the allegations in his petition as to his being the owner in fee simple of the land described in his petition. Hence, as he in no sense made out even a prima-facie case the demurrer to the evidence should have been sustained and judgment on the testimony should have been for defendants instead of plaintiff. It is idle to require defendants to enter on any defense of title when plaintiff failed to show good and complete title. Secs. 3094, 3098, 3111, R. S. 1899; Wilhite v. Barr, 67 Mo. 284; Pabst Brewing Co v. Smith, 59 Mo.App. 176; Payne v. Lott, 90 Mo. 681. No common source of title was proven. No evidence was introduced to prove that this land is in the possession of any one or that it is other than, in fact it is, wild land. While title in ejectment based on adverse possession may be recovered as against one claiming under the weaker title, yet such title by adverse possession must be a completed title. In all questions of title the plaintiff recovers, if at all, on the strength of his title, and not on the weakness of his adversary's title. Foster v. Evans, 51 Mo. 39; Horwood v. Tracy, 118 Mo. 631; West v. Bretelle, 115 Mo. 653; Walther v. Walsh, 107 Mo. 121. Legally speaking, no adverse possession can sustain or be proof of a title in fee simple to real estate such as plaintiff alleged and was required to prove to recover either in ejectment or under section 650, Revised Statutes 1899, on which he attempted to base his action, until it is shown the title has passed out of the source of all titles in this State, towit, the Government, and that the completed legal title was in plaintiff at the time of the suit. Clay v. Mays, 144 Mo. 376; Finley v. Babb, 144 Mo. 403; Robinson v. Claggett, 149 Mo. 153. Section 650 does not undertake to alter that rule. One who sues under section 650 must make precisely the same proof of title he is required to make in actions of ejectment.

E. D. Anthony for respondent.

OPINION

LAMM, J.

Suit to determine interests in, and quiet title to, 200 acres of land in Madison county, instituted July 20, 1903. Judgment for plaintiff; defendants appeal.

The petition, omitting caption and signature, follows:

"Plaintiff, for a cause of action against defendants, states that he is the owner in fee simple, and claims the title to the following described real estate lying, being and situate in the county of Madison in the State of Missouri, to-wit: The northeast quarter of section thirty-six, in township thirty-three, in range seven east, and the northeast quarter of northwest quarter of the same section, township and range as above; all in Madison, containing two hundred acres, more or less.

"Plaintiff further states that the defendant Lead Belt Land Company is a corporation organized under the general and special laws of the State of Missouri, and as such corporation and as such trustees and beneficiaries in a deed of trust on above-described land, claims some title, interest or estate in and to said premises, the nature and character of which claim is unknown to plaintiff and cannot be described herein, except such claim is adverse to plaintiff.

"Wherefore, the plaintiff prays the court to try to [sic] ascertain and determine the estate, title and interest of the plaintiff and defendants herein respectively in and to the real estate aforesaid and to define and adjudge by its judgment or decree, the title, interest and estate of the parties, plaintiff and defendants, severally in and to the aforesaid premises and for costs in this behalf expended."

The only answer in the record, that of the Lead Belt Land Company, is as follows:

"Comes now the defendant in the above-entitled cause, and for its answer to plaintiff's petition in this behalf, denies every allegation, statement and averment therein contained and all knowledge or information sufficient to form a belief thereof, except the admission by averments in plaintiff's petition as to its title and claims to the premises described in his petition; and in this connection, it avers that it has full and complete title to said premises and prays that it may be discharged hereof with costs of suit.

"Further answering, defendant avers that plaintiff is prosecuting this cause against it with full knowledge of when it obtained title to the premises described in his petition; of the exact 'nature and character' of its title and claim of title and its muniments of title and of its bona fide belief in the goodness of such title and yet, notwithstanding such knowledge of defendant's title, plaintiff wilfully refuses to plead such facts in his petition, but knowingly suppresses them.

"And defendant avers that plaintiff's petition does not state facts sufficient to constitute a cause of action; wherefore, defendant says that plaintiff, under his petition, is not entitled to recover and that his suit is by virtue of section 1 of an act of the Legislature of Missouri, approved March 6, 1903, entitled, 'An Act Relating to Setting Aside of Tax Deeds,' should be dismissed and defendant prays that said cause be dismissed."

The replication reads thus (the part in italics being struck out on motion of defendant):

"Now comes the plaintiff, and for reply to defendant's answer, denies each and every allegation of new matter therein contained.

"Plaintiff, further replying, denies that there is such an Act of the Legislature of Missouri, approved March 6, 1903, entitled, 'An Act Relating to Setting Aside of Tax Deeds,' and further answering [sic] states that such pretended act is not properly plead in defendant's answer.

"Plaintiff denies that he is liable under such pretended act for taxes, costs or other expenses of defendants, but for the purpose of this suit, plaintiff hereby tenders and offers to pay to defendants all taxes, if any, paid by them as soon as the amount thereof shall be ascertained by the court, if any there be, and require the defendants to set up in their answer all taxes paid by them and when and where paid and for costs of this suit."

The replication was struck at by a motion, as follows:

"Comes now the defendant, Lead Belt Land Company and states that plaintiff seeks, as a matter of fact, to set aside and avoid a tax deed made by the sheriff of Madison county, Missouri, to certain parties and yet, such material allegation is not set out in his said petition, and to cure such defect he attempts to plead that fact in his replication and to plead the further important fact of non-payment of taxes on the property described in said petition and the payment of taxes by the purchaser at such tax sale and subsequent guarantees [sic] under said purchaser, including this defendant. And in his replication he tenders all taxes paid by the said purchaser and his grantees, down to defendant Lead Lead Belt Land Company.

"It being necessary that these material facts be set up in his petition in order that a cause of action might be stated therein.

"1. Defendant, therefore, moves the court to strike out all that part of said replication, commencing with line 20 thereof, down to line 33 of said replication, including line 33, on the ground it constitutes a departure in pleading and is an attempt to amend his petition in a material matter.

"2. Because the replication admits that his petition seeks to set aside a title acquired by defendants under a tax deed and then by the allegations in the replication, admits that his petition states no cause of action, and, therefore, this suit ought to be dismissed."

Defendant's motion to strike out was sustained; but the court refused to dismiss the suit, and defendant saved no exception to this action of the court.

At the trial there was no claim or proof of possession in plaintiff; there was no claim or proof of possession by defendants, or any of them; there was no proof of the character of defendants' claims. Plaintiff contented himself by undertaking to prove a dry, naked, legal title in himself and by resting on such title. To this end, he introduced evidence as follows:

(1) A warranty deed from Henry T. Mayer to Matthew A. Trevor, dated February 9, 1860, and recorded September 5, 1870.

(2) A warranty deed from Matthew R. Trevor and wife to Albert G. Trevor, dated August 30, 1870, and recorded September 5, 1870.

(3) A defective and irregular warranty deed from Albert G. Trevor and wife to Mrs. L. C. Bascom, dated February 9, 1883, and recorded February 24, 1883.

(4) A quitclaim deed, duly executed, from Albert G. Trevor (a widower) to Mrs. Lucretia A. Bascom, dated October 15, 1891, and recorded November 21, 1891.

(5) A warranty deed from Lucretia C. Bascom, a widow, to plaintiff, dated October 15, 1891, and recorded November 21, 1891.

It will be seen there is no common source of title in the case; the title relied on starts with Henry T. Mayer. The theory of plaintiff seems to be that Mayer's title emanated from the Government of the United States. To sustain such theory plaintiff placed upon the stand Mr. Farrar and showed by him that he was county...