Swearengin v. Swearengin

• Citation: 202 S.W. 556
• Decision Date: 16 February 1918
• Docket Number: No. 18886.,18886.
• Parties: SWEARENGIN v. SWEARENGIN.
• Court: United States State Supreme Court of Missouri

202 S.W. 556

SWEARENGIN v. SWEARENGIN.

No. 18886.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Rehearing Denied April 9, 1918.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by McDonald Swearengin against W. R. Swearengin. Judgment for plaintiff, and defendant appeals. Affirmed.

Delaney & Delaney, of Springfield, and Asbery Burkhead, of Tahlequah, Old., for appellant. G. Purd Hays, of Springfield, and G. A. Watson, of Ozark, for respondent.

WALKER, P. J.

This appeal arose out of a suit to quiet title to 80 acres of land in Douglas county, described as the W. ½ of N. E. ¼ of section 23, township 27, range 18. It was tried on a change of venue in Greene county, resulting in a judgment for the plaintiff, from which the defendant appealed.

The petition is in the usual form under section 2535, R. S. 1909. The answer, after a general denial, pleads a former adjudication in ejectment of the title to the land herein in an action determined in this court (217 Mo. 565, 117 S. W. 704) in March, 1909, in favor of William R. Swearengin, who was the plaintiff, and W. A. Swearengin and Samuel Bookout, who were the defendants.

For further answer and by way of affirmative relief, defendant in the instant case claims title to the land by virtue of a warranty deed from Andrew Swearengin and wife to defendant in July, 1905, in which the land was described as the W. ½ of N. E. ¼ of section 23, but omitted the township and range. It is alleged that it was the land in controversy that was sought to be conveyed by this deed, and that such was the purpose and intention of the parties. It is asked, therefore, that defendant be permitted to introduce testimony to establish the identity of the land and the intention of the parties that the deed may be corrected in conformity therewith.

William A. Swearengin, the father of the plaintiff, is the common source of title. On the 31st day of December, 1884, he and his wife executed a deed of trust to H. M. Miller, as trustee, to 520 acres of land, including the 80 acres in controversy, to secure the payment of a note for $1,000 to J. A. G. Reynolds. In October, 1887, this deed was foreclosed and the land sold and conveyed to J. A. G. Reynolds for $1,000. In November, 1888, J. A. G. Reynolds quitclaimed the land heretofore conveyed to him at the foreclosure sale to W. A. Swearengin, stating therein that said deed was made to release certain deeds of trust theretofore made to him by W. A. Swearengin, particularly designating same by their respective dates, but not including therein the deed of trust dated December 31, 1884, under which said Reynolds had purchased the land at the foreclosure sale. In April, 1904, the heirs of J. A. G. Reynolds conveyed by quitclaim deed the 80 acres in controversy to McDonald Swearengin, the plaintiff.

Defendant's claim to title is traced as follows: In May, 1901, W. A. Swearengin and wife by their deed of trust conveyed the 80 acres in controversy to D. M. Coleman, as trustee, to secure the payment of a note for $400 to Almus Harrington. In April, 1904, this deed of trust was foreclosed, the land sold to satisfy same, and Andrew Swearengin became the purchaser, and the land was conveyed to him by the trustee in July, 1905, Andrew Swearengin conveyed the land to William R. Swearengin, the defendant. In describing the land, the subdivision of the section, to wit, the W. ½ of the N. E. ¼ of section 23, was properly designated, but the township and range were omitted. Plaintiff concedes that the land in controversy was intended to be conveyed to Andrew Swearengin. Upon the execution of the deed to him he went into possession of the land, paid the taxes thereon for the succeeding years until the trial of this case, and his possession has since been continuous.

The adjudication in favor of the plaintiff in the suit of William R. Swearingin v. William A. Swearingin and Samuel Bookout, 21 Mo. 565, 117 S. W. 704, set up as a defense in the answer here, does not constitute a bar to plaintiff's right of action in this case. That case was one in ejectment, and the answer was simply a disclaimer of ownership on the part of one of the defendants and an admission of possession of the lands involved on the part of the other. We have held affirmatively ever since the ruling in Kimmel v. Benno, 70 Mo. 62, following Lord Mansfield in Atkyns v. Hord, 1 Burr, 114, that the nature and extent of a judgment in ejectment was simply a recovery of possession, not of the seisin or freehold; and that such judgment was without prejudice as to any rights as they may afterwards appear, even between the same parties themselves. Whenever we have had occasion to subsequently rule upon this question, we have affirmed this doctrine, subject, of course, to such a condition of the pleadings as...