Toler v. Edwards
| Decision Date | 28 March 1913 |
| Parties | SUSAN J. TOLER et al. v. WILLIAM C. EDWARDS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. Jesse C. Sheppard, Judge.
Reversed and remanded (with directions).
Ward & Collins for appellants.
Plaintiffs plead that they are "owners in fee" of the 160 acres of land in controversy; and but for the answer this would be an action at law. But the answer pleads an equitable defense, to-wit, laches and estoppel, and therefore converts this action into a suit in equity. Actions under section 650 are either legal or equitable, depending upon the issues raised by the pleadings. Minor v. Burton, 228 Mo 563; Nelson v. Jones, 245 Mo. 579; Hayes v Shaw, 229 Mo. 124; Lee v. Conran, 213 Mo. 404. In cases of equity the Supreme Court will adhere largely to the finding of facts by the trial judge, but is not bound by them. Morley v. Staley, 54 Mo. 419; Hendricks v Woods, 79 Mo. 540; Carter v. Dilly, 167 Mo. 564. And this is only when the finding of the trial court is based on conflicting evidence. Sharpe v. McPike, 62 Mo. 300; Springer v. Cleinsorge, 83 Mo. 152; Loring v. Atterberry, 138 Mo. 262. Plaintiffs restricted their claim to a fee simple title, they tender that sole issue, and plead no equitable estate, etc. Stewart v. Land Co., 200 Mo. 289; Shelton v. Horrell, 232 Mo. 371; Shelton v. Franklin, 224 Mo. 357; Hayes v. Shall, 229 Mo. 124; Minor v. Burton, 228 Mo. 563. Plaintiffs wholly failed to establish any title in themselves, and most especially failed to establish the legal fee simple title in themselves. No common source of title was assumed, for plaintiffs, instead of assuming a common source of title, undertook to deraign their title from the Government, and when they reached the deed conveying the land to plaintiffs they stopped and nothing was said about common source of title by plaintiffs. Therefore, in the language of Nall v. Conover, 223 Mo. 491, plaintiffs did not rely upon a common source of title. There is no presumption of law that the service against these parties was by publication; there was no proof introduced by plaintiffs to show that service was had by publication; and even the witness Susan J. Summers (Toler) nowhere in her testimony states that she was not served personally, though a witness in the case; but there was a deed, and that deed was based upon a judgment, and the law presumes that all things were regular and that the judgment was rendered upon proper service and that the judgment was valid and binding. Sec. 3150, R.S. 1899; McCormick v. Fitzmorris, 39 Mo. 244; Adams v. Cowles, 95 Mo. 501; McClannahan v. West, 100 Mo. 309. Plaintiffs are estopped herein by laches. Guffy v. O'Reilly, 88 Mo. 426; State ex rel. v. West, 68 Mo. 232; Hudson v. Cahoon, 193 Mo. 562; Moreman v. Tolbert, 55 Mo. 392; Loomis v. Railroad, 165 Mo. 495; Kroenung v. Goehri, 112 Mo. 648; Kline v. Vogel, 90 Mo. 247.
James R. Brewer for respondents.
(1) While the answer of the defendants set up laches and estoppel yet as no affirmative relief is asked or prayed, this answer does not convert the suit to one in equity. Kostuba v. Miller, 137 Mo. 172; Kerstner v. Vorweg, 130 Mo. 196. (2) The appellants contended below and in their brief contend in this court that they have acquired the title of Susan Summers (now Mrs. Toler) and William A. Summers, hence they are in no position to contend now that as the plaintiff counted on a "fee simple" title they cannot recover. Dixon v. Hunter, 204 Mo. 390. Appellants contend in their answer that they have the fee simple title and contend that they have the Susan Summers and William Summers title, hence they thereby admit that the title of Susan Summers and William A. Summers is a fee simple title. (3) There is no proof in the record in this case nor any presumption that the "S. J. Summers and W. A. Summers" mentioned in Entry 14 are the William A. Summers and Susan Summers to whom the land in question was deeded in 1874. State v. Priest, 215 Mo. 1.
STATEMENT BY THE COURT.
This suit was brought in the 9th of April, 1906, by Susan J Toler, formerly Susan J. Summers, and others, to determine the title, estate and interest between plaintiffs and defendants in 160 acres of land.
Defendant W. C. Edwards disclaimed any interest in the land in controversy, and averred that all his title and interest therein had been conveyed, in February, 1897, to his co-defendant, W. R. Edwards. Defendant Joseph Sanders made no answer. The remaining defendant, W. R. Edwards, answered separately, stating that none of the defendants other than himself had any interest in the land sued for; admitted that he was a claimant of title to said land, and averred that he owned it in fee simple and that plaintiffs had no right, title or interest in and to said land. For a second defense he pleaded the Statute of Limitation of ten years. For a third defense he pleaded the Statute of Limitation of thirty years. For a fourth defense he averred that neither plaintiffs nor those under whom they claimed title had paid any taxes on said land since 1874, nor had possession of the same, nor exercised any ownership over said land; that though in full possession of knowledge concerning the claim they now seek to establish, they remained silent until the bringing of this action; that during all these years defendant and those under whom he claims title paid taxes on the land, spent large sums of money in lasting and valuable improvements, cleared and fenced a good portion of the same, thereby materially enhancing its value; that with reasonable care plaintiffs might have known of these acts and doings of defendant, but by their conduct led defendants and others under whom he claims to believe they had no claim to the land. All of which defendant avers constituted laches and estoppel against the claim now made by plaintiffs.
The case was sent to Butler county on a change of venue. At the April term, 1908, the cause was submitted to the court, a jury being waived, and was taken under advisement until the January term, 1909, when the court rendered judgment in favor of Susan J. Toler for an undivided three-sixths interest in and to three-fourths of the above described land, and in favor of plaintiff James R. Brewer for an undivided two-sixths interest in and to the same quantity of land, and in favor of plaintiff J. S. Patrick as the owner of an undivided one-sixth interest in and to the same amount of land, and adjudged that defendant had no right, title or interest in and to an undivided three-fourths interest in the land described in the petition.
As showing the theory upon which the case was decided, the learned circuit judge made a finding of facts and law, setting out plaintiffs' chain of title and the chain of title claimed by defendant emanating from a sheriff's deed after a tax sale of the land while Susan J. and William A. Summers were the record owners. The court held that deed to be void and that defendant had no paper title to the land nor any title by the Statutes of Limitation of ten and thirty years, respectively; and that plaintiffs were not estopped by the laches pleaded. The court then decreed the title in plaintiffs to three-fourths of the land according to their respective interests -- one-half of that amount to Susan J. Toler and the other half to her attorneys. Other facts will be stated in the opinion.
Defendant duly perfected his appeal to this court; and assigns for error, that the judgment is contrary to the evidence and the law; that incompetent testimony was admitted; and that the judgment is erroneous on the face of the record.
OPINION.BOND, J. (after stating the facts as above):
-- I. Preliminary to a review of this case, we will dispose of the contention of the learned counsel for appellant, that this action, though strictly one at law in its inception, was transformed into a suit in equity by the inclusion in the answer of the defense of laches and estoppel.
As has been seen, four defenses were interposed in the answer. The record shows that each one of them, including the one resting on laches and estoppel, concluded in the following terms: and defendant "again prays the court to go hence without day and with his costs." None of the defenses asked for any affirmative relief whatever.
It has long been settled in this State that a purely legal action such as ejectment, is not converted into one in equity simply by the interposition of equitable defenses thereto unless there is a prayer for affirmative relief based on those defenses. [Shaffer v. Detie, 191 Mo. 388; Kostuba v. Miller, 137 Mo. 161; Kerstner v. Vorweg, 130 Mo. 196, 32 S.W. 298.] Both divisions of this court, after some hesitation, have applied this rule to suits to quiet title. [R.S. 1909, sec. 2535.] In the leading case on that subject, the test was stated to be, "If the issues joined entitle the parties to an ordinary judgment at law, then, under the Constitution and laws of the State, the parties are entitled to a trial by a jury; but if the issues tendered are equitable in their nature and call for equitable relief, then the cause is triable before the chancellor." [Lee v. Conran, 213 Mo. 404, 111 S.W. 1151.] That case was followed, after a thorough discussion of the subject, in a case where the point for review arose upon the answer in a suit under the statute to determine title, to which the defendant made the identical pleas made in the case at bar, but concluding his answers with a prayer for full and complete affirmative relief by the investiture of title, and for general relief. [Withers v. Railroad, 226 Mo. 373.] Speaking as to the state of the...
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