Stone v. Perkins

• Decision Date: 09 March 1909
• Citation: 117 S.W. 717,217 Mo. 586
• Parties: STONE et al. v. PERKINS et al.
• Court: Missouri Supreme Court

117 S.W. 717

217 Mo. 586

STONE et al. v. PERKINS et al.

Supreme Court of Missouri, Division No. 2.

March 9, 1909.

Rehearing Denied March 30, 1909.

1. PUBLIC LANDS (§ 61)—PATENTS FROM COUNTY—PRIORITY.

A subsequent land patent, issued by a county with knowledge of the issuance of a prior patent to the same land, passed no title.

2. JUDGMENT (§ 554)—CONCLUSIVENESS—NATURE OF ACTION.

A judgment for defendant in ejectment, no equitable defense having been pleaded, is no bar to a subsequent ejectment suit between the same parties for the same land, whether the title and defenses be the same or not.

3. ADVERSE POSSESSION (§ 44)—COLOR OF TITLE—CONTINUITY OF POSSESSION.

Possession under color of title, shown to have lasted only for about three months, was insufficient after the expiration of the period of limitations to establish title by adverse possession on the theory that the law presumes the continuance of adverse possession once existing, since the occupancy in order to ripen into title must be continuous, uninterrupted and adverse for the entire required time.

4. QUIETING TITLE (§ 47)—TRIAL OF TITLE— QUESTION FOR COURT OR JURY.

The trial of title under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), providing for suits to determine interests and quieting title to real estate, is for the court and not for the jury.

5. APPEAL AND ERROR (§ 1071)—HARMLESS ERROR — INSTRUCTIONS — TRIAL BEFORE COURT.

Where an action to quiet title was tried to the court without a jury in so far as the issue of title was concerned, an instruction that plaintiffs' prior legal title should be sustained, though the jury should find that W. had a temporary building or structure on the land, which he occupied for a few months and then abandoned, was not prejudicial to defendants.

6. ADVERSE POSSESSION (§§ 23, 88)—PAYMENT OF TAXES—CUTTING TIMBER.

Payment of taxes and cutting timber on land do not constitute adverse possession, but are evidence of a claim of ownership.

7. PLEADING (§ 406)—MISJOINDER OF CAUSES —WAIVER.

Where an alleged misjoinder of causes of action appeared on the face of the petition, defendants waived it by failing to demur on that ground.

8. TRESPASS (§ 44)—RIGHT TO SUE—OWNERSHIP—PRESUMPTIONS.

Where plaintiffs had the legal title to land not in the actual occupancy of another, plaintiffs are presumed to be in possession and were entitled to sue in trespass for the cutting of timber therefrom.

9. JUDGMENT (§ 203)—DIFFERENT CAUSES OF ACTION—ONE JUDGMENT.

Rev. St. 1899, § 694 (Ann. St. 1906, p. 703), provides that where there are several causes of action united in a petition, or where there are several issues, a judgment on each separate finding shall await the trial of all the issues, and section 773 (page 750) declares that only one final judgment shall be given in an action. Held that, where an action involved the quieting of title to certain land and a claim for trespass in the cutting of timber, forms of judgments entered on such counts on different days should be treated as one final judgment, though it would have been better practice for the court merely to have made its findings and deferred entry of final judgment until after trial of all the issues.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by Parmelia L. Stone and others against A. B. Perkins and another. Judgment for plaintiffs, and defendants appeal Affirmed.

Mozley & Wammack, for appellants. Jas. E. Reese and Keaton & Keaton, for respondents.

GANTT, P. J.

This is an action under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), made returnable to the March term, 1904, of the circuit court of Stoddard county, wherein the plaintiffs allege in their first count that they are the owners in fee simple of all of section 9 of township 23, range 12, in Stoddard county, Mo. They allege that the defendants claim to have some title, estate, and interest in and to said lands adverse to the title of plaintiffs, and they prayed the court to ascertain and determine the title and interest of the plaintiffs and the defendants respectively in and to said real estate, and to adjudge and decree the title of the plaintiffs therein, and to declare the defendants' claim a cloud upon plaintiffs' title and to remove the same. In the second count plaintiffs state that on or about the 1st day of October, 1896, and on divers days and times thereafter, the defendants without leave wrongfully entered upon said section of land, and did hire and command other persons to enter into and upon said premises, and did then and there cut down and destroy and carry away and convert to their own use timber and trees of the value of $3,000, to the damage of the plaintiffs in the sum of $3,000, for which plaintiffs pray judgment. In their answer defendants deny that the plaintiffs are the owners in fee of the S. ½ of the S. E. ¼ of the N. W. ¼ of the S. E. ¼ and the W. ½ of section 9 in township 23, range 12, containing 440 acres, and being a part of the land described in plaintiffs' petition. They denied that they had trespassed upon said land, and admitted that they claim title to the same, and that their claim is adverse to the claim of plaintiffs. They aver that they are the owners in fee simple and claim the title to the abovedescribed 440 acres, and that they have been in the actual possession thereof from the 17th of December, 1892, to the present date and disclaimed all title or ownership to the remainder of said land in said section 9 as aforesaid. Further answering, the defendants state that on the 17th of December, 1892, the defendant A. B. Perkins acquired title by mesne conveyances from Stoddard county to said real estate and immediately entered into the possession of the same, and that on the 4th of March, 1893, W. B. Stone, the ancestor of the plaintiffs, and plaintiffs' grantor, brought suit against A. B. Perkins and John Ware in the Circuit Court of the United States in the Eastern Division of the Eastern District of Missouri to recover possession of said real estate and for damages on account of cutting and removing the timber therefrom, being the same cause of action set forth in the petition of the plaintiffs herein, and in said action, upon a trial of said cause on its merits, judgment was rendered by said court on the 21st day of March, 1898, in favor of the defendants therein. Defendants, further answering, pleaded the 10 years' statute of limitations, and for answer to the second count of plaintiffs' petition defendants pleaded, first, a general denial, and, second, a plea of both the 5 years' and the 10 years' statute of limitations; and in answer to this second count defendants also pleaded that on the 4th of March, 1893, W. B. Stone, under whom plaintiffs claim, brought suit against the defendants therein in the Circuit Court of the United States for the Eastern Division of the Eastern District of Missouri for $8,000 damages on account of cutting and removing timber from the land described in said second count of the petition, and upon the trial upon merits judgment was rendered by the court in favor of the defendants. Therefore the defendants prayed judgment. There was a reply denying all the new matter pleaded in the defendants' answer.

The evidence on both sides tended to establish that the land in dispute was what is known as swamp and overflowed lands, which had been given by the United States by Act Cong. Sept. 28, 1850, c. 84, 9 Stat. 519, to the state of Missouri. And by the state of Missouri by the several acts of the General Assembly in the years 1851, 1853, 1855, and 1857 (Laws 1850-51, p. 238; Laws 1852-53, p. 108; Laws 1855, p. 160; Laws 1857, p. 32), were donated to Stoddard county. In 1869 Stoddard county executed a deed by its commissioner to the lands in suit to Louis N. Ringer, and plaintiffs acquired this Ringer title by mesne conveyances. On the 16th of December, 1892, Stoddard county by patent conveyed this land to J. S. Miller, and on the 17th of December, 1892, Miller conveyed the same by quitclaim deed to the defendant A. B. Perkins for an alleged consideration of $1,100. This deed and patent were duly recorded in the recorder's office of said county on the 11th of January, 1893. At that time the evidence tended to show the land was vacant and not in the possession of any one, but on the 17th of December, 1892, the defendant A. B. Perkins erected a building thereon and put one John Ware in it as his tenant. At the May term, 1893, of the United States Court for the Eastern Division of the Eastern District of Missouri, W. B. Stone, plaintiffs' ancestor and immediate grantor, holding at that time whatever title plaintiffs now have, instituted two actions against the defendant Perkins and his tenant, John Ware, one in ejectment to recover the possession of the land in suit, and another by injunction to restrain them from cutting the timber from the land pending the action of ejectment. At the return term of that writ Perkins and Ware filed their answers, which were general denials. In 1898 a trial was had in the United States Circuit Court, which resulted in a judgment for the defendants in the ejectment case. See Stone v. Perkins (C. C.) 85 Fed. 616, and the temporary injunction which was ancillary to the action of ejectment was dissolved. On March 22, 1898, A. B. Perkins and wife conveyed the land in suit to their son Dale Perkins, and on April 25, 1898, A. B. Perkins sold the timber of said land to Nimmons & Bennett and gave them until January 1, 1900, to remove all of the white oak from said land in consideration of $2,000, which timber the evidence tended to show they did cut and remove to a large extent from and after October 26, 1898. The evidence further shows that Jerry Tramble about the year 1891 cleared 2½ acres of the land in section 9 and cultivated it for about two years, and that after that Tramble sold his holding or claim to Kitterman and gave him a quitclaim deed therefor, and...