Strother v. Barrow

• Decision Date: 30 November 1912
• Citation: 151 S.W. 960,246 Mo. 241
• Parties: LOUIS A. STROTHER et al. v. FRANKLIN M. BARROW, Appellant
• Court: Missouri Supreme Court

151 S.W. 960

246 Mo. 241

LOUIS A. STROTHER et al. v. FRANKLIN M. BARROW, Appellant

Supreme Court of Missouri, First Division

November 30, 1912

Appeal from Pike Circuit Court. -- Hon. David H. Eby, Judge.

Affirmed.

J. O Barrow and Hostetter & Haley for appellant.

(1) Where a common source of title was admitted or proven, then adverse possession will constitute a defense. Emstring v Gleason, 137 Mo. 594. (2) The trial court refused to give effect to the adverse possession which it affirmatively found to have been enjoyed by the defendant Barrow, by reason of the provision of Sec. 1886, R.S. 1909, which provides in substance that nothing contained in any Statute of Limitation shall extend to any land given, granted, sequestered or appropriated to a pious use. While it might be conceded that if the Old School Presbyterian Church body had remained in control of the property up to the date of the institution of the suit, and had at all times used it for religious purposes as such properties are used, then there might be some ground to support the trial court's ruling in the matter, but it will be noticed that according to the testimony even the Old School Presbyterian Church, the original grantee from Boyd ceased to use it for religious purposes long before it attempted to part with the title to the Universalist General Convention. (3) A proper construction of the deed from Boyd to the elders of the Old School Presbyterian Church would be that the property should be used for the use of that particular congregation of said Old School Presbyterian Church and that any use of the premises by some other congregation, even though a religious body, would be a violation of the trust imposed by said deed. It is questionable whether the Old School Presbyterian Church or its elders had any authority whatever to convey the property as under the terms of the deed the property was required to be used for the benefit of that particular church and none other. (4) Then in the conveyance made by the parties attempting to act for the Old School Presbyterian Church to the Universalist General Convention, it will be noted that the grantee was described merely as a New York corporation and there was no recital in the deed that it is a religious body or that it should use the premises conveyed for pious purposes. There is no proof that the Universalist General Convention was a religious body unless the recital in the deed which it undertook to make to the Methodists should be taken as such proof. (5) The trial court found affirmatively that the defendant's adverse possession began in 1890 and continued down to the date of the institution of the suit. Now, assuming there was a time in the early part of defendant's adverse possession when the disputed strip in controversy was used for pious purposes, thereby making the Statute of Limitation unavailable, still if there was any break in such pious use, the Statute of Limitation would immediately begin to run, and, under well-settled authority, where a Statute of Limitation once begins to run it continues to run. (6) The acknowledgment of the deed from the Universalist General Convention to the trustees of the Methodist Episcopal Church, South, is fatally defective: First, it does not conform to the requirements of Sec. 2799, R.S. 1909; second the acknowledgment does not recite that the alleged chairman and secretary of the board of trustees of the corporation were sworn; third, there is no recital in the acknowledgment that the seal affixed to the instrument is the corporate seal of said corporation; fourth, there is no recital in the acknowledgment or in the deed itself that the instrument was made by authority of the board of directors or by authority of the board of trustees of the said corporation, the Universalist General Convention.

T. B. McGinnis and Tapley & Fitzgerrell for respondents.

(1) The demurrer to the evidence was properly overruled. R.S. 1909, Sec. 1886. (2) There was no abandonment of the property by any of the religious organizations; in fact the opposite was clearly shown by the acts of each of them. Abandonment is a question of intention. Nonuser is not of itself sufficient. Tracy v. Bittle, 213 Mo. 302; Cravens v. Moore, 61 Mo. 178; Judson v. Malloy, 40 Cal. 299; Hummell v. Railroad, 175 Pa. St. 537; Academy v. Academy, 47 S.W. 617. The entire testimony shows that the appellant is precluded from benefit of any Statute of Limitations. R.S. 1909, Sec. 1886. (3) The case being tried before the court sitting as a jury the parties are concluded by the findings on controverted questions of fact. Waddell v. Williams, 50 Mo. 216. (5) The deeds complained of were regular on their face and were prima facie executed by authority. Fire Clay Wks. v. Ellison, 30 Mo.App. 71. (6) Under the pleadings and evidence the appellant cannot raise the objection that deeds are defective. Hunt v. Searcy 167 Mo. 159.

LAMM, J. Graves, P. J., concurs in result.

OPINION

LAMM, J.

Ejectment. Defendant appeals from a judgment in favor of plaintiffs for an undivided two-sixths interest in a tract situate in the hamlet of Ashley, Pike county.

Ashley was not laid out true to the cardinal points of the compass. Its subdivisions run from the northeast to the southwest. Among them is a square acre once belonging to Boyd, the common source of title. Boyd deeded seventy feet in rectangular shape off the southwest end of his acre to the Old School Presbyterian Church, putting the title in named trustees. The residue he deeded to his daughter, Mrs. Dorsey, and she conveyed to defendant. The church seventy feet passed by mesne conveyances (so plaintiffs claimed) to plaintiffs as trustees of the Ashley Church of the Methodist Episcopal Church, South. It will be observed that plaintiffs, who sued for all, were awarded possession of an undivided two-sixths interest only, and abided the judgment. One phase of the dispute is over the boundary line between the church's seventy feet and Barrow's residue; another is adverse possession. The parcel in controversy is a strip eleven feet wide at one end, six feet ten inches at the other, and three and sixteen-hundredths chains long.

A map, furnished by appellant is, so far as it goes, accurate enough to aid in grasping the situation, viz.:

[SEE ILLUSTRATION IN ORIGINAL]

The petition was conventional; the answer was a general denial, coupled with two affirmative pleas (one the ten-year and the other the thirty-year Statute of Limitations); the reply was conventional.

At the close of plaintiffs' case and again at the close of the whole case, defendant interposed a demurrer to plaintiffs' evidence, which was overruled and he saved the point. No other instructions were asked on either side. The trial was to the court without the aid of a jury and, at defendant's request, the court made a finding of facts.

Facts essential to the determination of questions raised will appear in connection with rulings thereon.

The assignments of error are:

"1. The court erred in refusing defendant's instructions in the nature of a demurrer to the evidence offered at the close of plaintiffs' testimony and at the close of all the testimony.

"2. The court erred in refusing to give effect to defendant's adverse possession, which he affirmatively found to have continued from 1890 down to the date of the institution of the suit.

"3. The court erred in finding that the strip of ground in controversy was not conveyed by the deed from Cary A. Boyd to Elizabeth Dorsey and by the deed from Elizabeth Dorsey to the defendant Barrow.

"4. The court erred in interpreting the deed from the alleged officers of the Old School Presbyterian Church to the Universalist General Convention, a New York corporation.

"5. The deed purporting to be from the Universalist General Convention, a corporation, to the trustees of the Methodist Episcopal Church, South, dated October 25, 1905, was ineffective to convey any title and the acknowledgment thereto was fatally defective."

Of these in their order.

I. Of the demurrers.

In effect, the demurrers search, under guise of a general form, errors specified in assignments 2, 3, 4, and 5. Hence a disposition of those specifications will be tantamount to an appellate ruling on the demurrers. Accordingly we pass by that assignment eo nomine, as filling no separate function on appeal.

II. Of adverse possession.

The court found that defendant had been in possession under claim of title uninterruptedly and adversely since the year 1890 up to the date of the suit, 1908. To break the force of that finding, it also found that the Statute of Limitations could not be invoked as a bar to plaintiffs' claim or to create title in defendant. Contra, that Sec. 1886, R.S. 1909, applied to the facts -- that section reading:

"Nothing contained in any Statute of Limitations shall extend to any lands, given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this State."

To break the force of that ruling, defendant contends that, assuming the original grant to the trustees of the Old School Presbyterian Church to be for a "pious and charitable use," yet on the facts here, that use was abandoned; whereat (on such abandonment) the statute began to run and continued to run, although a pious use of the property was subsequently resumed. In outline such is the controversy under this head.

We are of opinion the ruling, nisi, was correct. This because:

(a) For present purposes it will be assumed that the strip in dispute passed by the deeds in plaintiffs' chain of title, and not by the deeds in defendant's. Whether that assumption be correct will be looked into presently. On that assumption out of abundant caution, we...