Titus v. North Kansas City Development Company
| Decision Date | 02 March 1915 |
| Citation | 174 S.W. 432,264 Mo. 229 |
| Parties | F. TITUS, Appellant, v. NORTH KANSAS CITY DEVELOPMENT COMPANY |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. J. W. Alexander, Judge.
Affirmed.
Frank Titus for appellant.
Whether the judgment in the case of Stevens v. Fitzpatrick, or the case itself in any of its features, concluded and barred the plaintiff in the present ejectment proceeding was essentially a question for the decision of a jury upon the facts constituting such alleged estoppel. Gwin v Waggoner, 116 Mo. 152; Thompson v. Bank, 132 Mo.App. 228; Bank v. Redfearn, 141 Mo.App. 386; Dyer v. Tyrell, 142 Mo.App. 472; 16 Cyc. 813; Vaughan v. Scode, 30 Mo. 604; Ice Co. v Tamm, 138 Mo. 393; Eckrich v. Transit Co., 176 Mo. 648; McKee v. Allen, 204 Mo. 674; Peniston v. Brick Co., 234 Mo. 698; Minor v. Burton, 228 Mo. 563; Berry v. Railroad, 223 Mo. 358; Fronein v. Page, 231 Mo. 90; Lee v. Conran, 213 Mo 414; 24 Cyc. 105; Constitution of Missouri, art. 2, sec. 28; Secs. 1968, 1970, R. S. 1909.
Kenneth McC. DeWeese for respondent.
The plaintiff herein is barred, not only by his conduct, but concluded as well by the judgment in the case of Stevens v. Fitzpatrick, 218 Mo. 708, Turner v. Edmonston, 210 Mo. 411, 212 Mo. 377. The plaintiff in this case claims by, through and under the deed from Oscar Hampton Stevens and wife, who were parties defendant in the suit of Stevens v. Fitzpatrick, and who filed an answer and cross bill therein by the plaintiff herein as their attorney. He is bound and concluded by that judgment. At the time of the execution of the deed to the plaintiff by Oscar Hampton Stevens and Fannie D. Stevens, his wife, Shaffer was in possession of the land under the contract with Edward A. Stevens, of January, 1902. Such possession was notice to the plaintiff of Shaffer's rights in the premises, and charged the plaintiff with knowledge of all that inquiry by him would have imparted to him. The plaintiff is therefore not an innocent purchaser for value received without notice or knowledge. "Actual possession of land by a party is notice to all others of his claim of title." Bartlett v. Glascock, 4 Mo. 62; Beattie v. Butler, 21 Mo. 213. "Actual residence upon the land is notice to all the world of every claim which the tenant may legally assert in defense of his possession." Davis v. Briscoe, 81 Mo. 27. "So of actual possession and cultivation." Martin v. Jones, 72 Mo. 23; Cordova v. Hood, 17 Wall. 1; Long v. Weller, 29 Gratt. 347; Wood v. Krebbs, 30 Gratt. 708; Iron Co. v. Trout, 83 Va. 419; Van Gunden v. Coal & Iron Co., 52 F. 849; Hughes v. United States, 4 Wall. 232; Webb on Record of Titles, sec. 228, pp. 365-366.
Plaintiff commenced an action of ejectment in the circuit court of Clay county, Missouri, on October 7, 1910, to recover from above defendant (a Missouri corporation) the possession of an undivided one-third interest in the east half of the southeast quarter of the northeast quarter of section 23, township 50, of range 33, situated in the county of Clay aforesaid. The petition avers that on February --, 1904, said defendant entered into possession of said premises and since said date has unlawfully withheld from plaintiff the possession thereof, to his damage in the sum of $ 500.
The answer pleads a general denial; that F. Titus and Frank Titus are one and the same person; that plaintiff is barred by the ten-year Statute of Limitations; and that defendant has acquired a good title by adverse possession. The answer likewise pleads an equitable defense of former adjudication, and alleges that the matters and things in controversy were, by reason thereof, res adjudicata. It also pleads estoppel in pais.
The reply may be treated as a denial of the new matter pleaded in the answer. It asserts title in plaintiff through the heirship to William Stevens, deceased, who was the common source of title. It alleges that William Stevens was lawfully seized of the premises described in the petition, from 1881 up to the time of his death in 1902. It pleads estoppel on account of alleged admissions of defendant in the case of Stevens v. Fitzpatrick, 218 Mo. 708, 118 S.W. 51 and following, and the judgment rendered in said cause. Plaintiff avers in the reply that he was not a party to the above action reported in 218 Mo., supra, and is not estopped or deprived of his estate acquired by the deed of Oscar H. Stevens to him, of date November 1, 1902. He further avers that the conveyance to him was upon a valuable consideration, and without knowledge or notice on his part of the matters alleged as adjudicated in said cause in said circuit court. It is further averred that the defendant in this action and plaintiff in the above case of Stevens v. Fitzpatrick were put upon notice and inquiry, as to plaintiff's estate and interest in said real property involved here, long before the commencement of above action in August, 1904. The reply admits that an appeal was taken to this court in the above cause and that the plaintiff herein appeared as attorney of record in behalf of said appellants therein, Oscar H. Stevens and Fannie D. Stevens. Plaintiff admits that his deed aforesaid was not filed for record in Clay county, Missouri, until April 5, 1909. The reply concludes by pleading laches on the part of defendant, and an abandonment of its claim, to the effect that the land in question was owned by Edward A. Stevens in his life-time, etc.
On December 6, 1911, this cause was heard upon the equitable defense set up in the answer. The court found the issues in favor of defendant, and adjudged that it was entitled to the relief sought and prayed for in its answer; that defendant was seized and possessed of a good and indefeasible estate of inheritance in and to the real estate described in plaintiff's petition, in fee simple, and that the plaintiff had no right, title, interest or estate therein. A formal decree was entered in behalf of defendant, and an appeal taken therefrom to this court.
Plaintiff's Title.
William Stevens is conceded to be the common source of title. It is contended by plaintiff that William Stevens died in 1902, as the absolute owner of the land involved here, without ever having conveyed the same, and that Oscar H. Stevens, a son and heir of William Stevens, deceased, inherited said east half of the southeast quarter of the northeast quarter of section 23, township 50, range 33, and that on November 1, 1902, said Oscar H. Stevens and wife, by their general warranty deed of said date, containing full covenants of warranty, conveyed an undivided one-third interest in the land aforesaid to plaintiff, and recited in said deed that the remaining undivided two-thirds interest therein had been conveyed to Jacob Davis. The undivided one-third interest in ten acres of other land was described in the deed to plaintiff, and the expressed consideration therein was $ 500. Plaintiff's deed aforesaid was not recorded until April 5, 1909. The Davis deed, supra, contains this recital: "The remaining undivided one-third of the said interest and estate of the grantors herein to said lands has been sold and duly conveyed to another and different grantee by the grantors herein."
Plaintiff testified as a witness in his own behalf, and said that he became the purchaser of said undivided one-third interest of Oscar H. Stevens in the land aforesaid on November 1, 1902, and that said O. H. Stevens then claimed to be the owner in fee simple of said land; that the conveyance was taken by him in good faith, and for a valuable consideration, said grantors being then indebted to him, and without any knowledge or notice on his part of any claim by the plaintiffs in the action of Stevens v. Fitzpatrick, reported in 218 Mo., supra; that he had no notice that any other person claimed any interest in said land; that the records disclosed that William Stevens died seized as the owner thereof; that he had no notice that on the death of said William the land aforesaid did not at once vest in Oscar H. Stevens, George, Edward A. and Miller Stevens, and their respective descendants or assigns. He further said that shortly after the death of said William Stevens, his grantor O. H. Stevens employed him professionally to prepare and bring a suit for the partitioning of said east half of the southeast quarter of the northeast quarter of section 23, township 50, range 33, among and between the children and heirs of said intestate parent; that in the course of such employment, Mr. Martin D. Lawson, an experienced and capable attorney, examiner and abstracter of land titles, prepared and furnished an abstract of title to said land appearing upon the public records of said Clay county, and which said abstract disclosed the title to said land to be vested in William Stevens at the time of his death. He testified that, in reliance upon such title and abstract, he prepared a petition for partition of said real estate, in which all of the heirs of said William Stevens were named as parties, but before such suit was begun, the petition of Ellen S. Stevens and others, being heirs and devisees of Edward A. Stevens, deceased, as plaintiffs, was filed in the circuit court of Clay county, in August, 1904 (being the same case reported in 218 Mo., supra), and as such petition disclosed a claim on the part of the plaintiffs therein of the existence of an undisclosed, unrecorded deed, having been executed by the father of said Edward A. and Oscar H. Stevens, affecting the land in question, the suit in partition was not instituted.
Plaintiff said he was employed and appeared in said cause of Stevens v Fitzpatrick, as attorney of record for Oscar H....
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