Truitt v. Bender

• Decision Date: 16 March 1917
• Docket Number: No. 17982.,17982.
• Citation: 193 S.W. 838
• Parties: TRUITT v. BENDER et al.
• Court: Missouri Supreme Court

193 S.W. 838

TRUITT v. BENDER et al.

No. 17982.

Supreme Court of Missouri, Division No. 2.

March 16, 1917.

Appeal from Circuit Court, New Madrid County; Frank Kelly, Judge.

Action by R. H. Truitt against C. W. Bender, Elize Bender, and others. From a judgment for defendant Elize Bender, plaintiff appeals. Reversed and remanded, with directions to adjudge title to the land in controversy to be in plaintiff in fee.

Thomas Gallivan, of New Madrid, for appellant. Oliver & Oliver, of Cape Girardeau, and Riley & Riley, of New Madrid, for respondents.

FARIS, J.

This is an action in ordinary form to determine interest to the northwest quarter of the southwest quarter of section 27 in township 21 north of range 12 east, in New Madrid county, Mo. Upon a trial below plaintiff was cast, it being adjudged by the circuit court that defendant Elize Bender is the owner of the above land in fee, and that plaintiff has no title therein. From this judgment plaintiff appealed, after the usual motions.

For reasons which are obvious from our discussion of the point up for judgment it will not be necessary to cumber the books with any extended statement of the facts, since those facts can be more logically stated in connection with a discussion of the one question we find it necessary to consider in giving our views and in reaching a conclusion.

There is no contention that there is any paper title in plaintiff. It is conceded that he must maintain his title, if at all, wholly under the statute of limitations. This, of course, he may do; for, if he prove the requisite possession both in time and character, the effect thereof is to cause title to be divested out of the holder of the paper title and to become vested in such possessor. In other words, a title acquired by adverse possession may be used either for offense or defense. Nall v. Conover, 223 Mo. 477, 122 S. W. 1039; Potter v. Adams, 125 Mo. 118, 28 S. W. 490, 46 Am. St. Rep. 478.

The land belongs to that large class of lands in the southeastern part of this state which are called swamp lands. The state of Missouri took title thereto pursuant to the act of Congress of September 28, 1850, and selection and patent thereunder as land falling within the purview and contemplation of said act. The state of Missouri conveyed it to New Madrid county by patent dated October 1, 1875, pursuant to the provisions of statutes so permitting. Russ v. Sims, 261 Mo. 27, 169 S. W. 69. New Madrid county held it as swamp land till June 29, 1899, on which day that county conveyed it to one John H. Himmelberger, from whom, by mesne conveyances, it came to be owned (so far as the paper title is concerned) by the defendant Elize Bender.

There has never been any actual possession of the 40-acre tract in controversy by any person. If it can be held by plaintiff by grace of the statute of limitations, such holding must be made, because under the evidence the case falls within the provisions of section 1882, R. S. 1909. All of the proof of defendants was devoted to showing that there was no possessio pedis of the land in controversy, and that there had never been, a fact which was not only not denied by plaintiff by either evidence or iteration, but per contra was conceded by him. So, if plaintiff may not hold the land by holding for the requisite period a possession of the character demanded (Nall v. Conover, supra) of a part of the tract under color of title to the whole thereof, and by exercising the usual acts of ownership over the land in dispute for more than ten years, he cannot hold it at all. Plaintiff need not, of course, do this himself. It may have been done, and was so done, if done at all in this case, by his grantors, remote and immediate.

Without showing (except by a vague inference, arising from a loss by fire of some of the records of swamp land sales) any title in him, one William B. Nichols in the year 1859 sold and conveyed, by deed containing covenants of general warranty, the southwest quarter of section 27 in township 21 north of range 12 east, and other lands, to one Jefferson Branham. Said Branham died, and in 1881 his administratrix conveyed the land to one Adolph Branham, a son of said Jefferson, and one of the three heirs which the latter left surviving him. In 1885 said Adolph, with his brother, Lee Branham, conveyed this land by warranty deed to his sister, Laura Ward, who was intermarried with one George Ward. There is some evidence in the record that this latter conveyance, notwithstanding the administratrix's deed to said Adolph, was made in order to carry out an amicable partition among the three heirs of the lands of the estate of said Jefferson Branham. All of the above conveyances purported to convey the entire southwest quarter of said section 27. In 1905, subsequent to the death of said Laura Ward, said George Ward, the surviving widower of the latter, conveyed by warranty deed to his and the said Laura's two children (being all of the heirs of said Laura) the whole of said southwest quarter of section 27. From these latter grantees plaintiff got title in 1907 to the north half of the said southwest quarter of section 27 by a warranty deed. Plaintiff therefore (as had his mesne grantors for almost 50 years) had color of title to the land in dispute. What possession did his grantors and their ancestors have of any part of the tract? How and by what acts did plaintiff's predecessors in title connect their possession of a part of the land to the whole tract embraced in the muniment of title which constituted their color of title? These, we think, are the only questions to be determined.

Incidentally and as a foreword, we meet in limine the question whether the statute of limitations will run against a county so as to deprive such county of its title to swamp lands. This seems to be tacitly conceded by respondents. The cases hold in consonance with that concession. Dunklin County v. Chouteau, 120 Mo. loc. cit. 595, 25 S. W. 553; Palmer v. Jones, 188 Mo. 163, 85 S. W. 1113; Hunter v. Pinnell, 193 Mo. 142, 91 S. W. 472; Lumber Co. v. Craig, 248 Mo. loc. cit. 331, 154 S. W. 73. This ruling, illogical and ill-considered as it patently is (Lumber Co. v. Craig, supra), has been consistently held in this court for almost a quarter of a century. It is a rule of property, touching which more harm would be done by getting right in our holdings than by remaining wrong. It is stare decisis, and on that rule alone we rest, and continue to hold that a county is, as to its swamp lands, subject to the 10-year statute of limitations. Patently no county could be brought within the 30-year statute of limitations, because, being burdened with no legal duty to pay taxes, it could never be convicted of nonpayment thereof, which fact in a way accentuates the bad reasoning of applying any statute of limitations to a county in such wise as to divest its title to its swamp lands.

The case was tried without a jury, and no...