Vincent v. Means

• Decision Date: 02 July 1904
• Citation: 82 S.W. 96,184 Mo. 327
• Parties: VINCENT v. MEANS et al.
• Court: Missouri Supreme Court

82 S.W. 96

184 Mo. 327

VINCENT v. MEANS et al.

Supreme Court of Missouri, Division No. 2.

July 2, 1904.

EJECTMENT — QUIETING TITLE — PROCESS — SERVICE — NONRESIDENT — PUBLICATION — JUDGMENT — COLLATERAL ATTACK — VALIDITY — NAMES — INITIALS — PEREMPTORY INSTRUCTIONS.

1. Where, in ejectment to recover certain land, there was substantial evidence that plaintiff had conveyed the land to his brother, who was defendant's grantor, long prior to such grant, the giving of a peremptory declaration of law for plaintiff on a trial by the court without a jury was erroneous.

2. Where the record, in a suit to quiet title to real property, showed an order for publication of process, issued by the clerk of the court in vacation, directed to defendant, who was a nonresident, as authorized by Rev. St. 1889, § 2022, and that process was published according to law, such judgment was not subject to collateral attack on the ground that there was in fact no order of publication, and that the proof thereof was insufficient.

3. Where there was no proof that a person had ever received or executed conveyances of land by using the initial letter or letters of his name, in a suit against him to quiet title to land, in which he was sued by his initials and surname, a judgment which did not disclose his Christian name was void.

Appeal from Circuit Court, Putnam County; P. C. Stepp, Judge.

Action by Minos C. Vincent against John R. Means and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Wilson & Clapp and N. A. Franklin, for appellants. John C. McKinley and Higbee & Mills, for respondent.

FOX, J.

This is an action of ejectment for the possession of the southwest quarter of section 10, township 65, range 19, in Putnam county. The petition is in the usual form in such case. Hugh D. Marshall, who was originally made a codefendant, by answer disclaimed any title or interest in the land, and the case was thereafter dismissed as to him. The other defendants, Means and Clapp, filed answer, in which they admit the possession of the land, but deny all other allegations in the petition. The trial was by the court, a jury being waived, and resulted in a judgment for plaintiff for the possession of the land and $100 damages. After unsuccessful motion for new trial and in arrest, defendants appeal.

Plaintiff read in evidence a certified copy of a patent to the south half of the southwest quarter of said section 10 from the government of the United States to Minos C. Vincent, dated September 10, 1859. Plaintiff next read in evidence a certified copy of a patent to the north half of the southwest quarter of said section 10 from the government of the United States to Minos C. Vincent, dated September 10, 1859. Plaintiff then introduced evidence as to the rents and profits of the land, and rested. Upon the part of defendants it appeared that A. B. Vincent claimed to own the land from the fall of 1867, and that during that fall he wrote to the collector of Putnam county, wanting to know what the taxes were on this land for that year, claiming to be the owner. His letter was handed by the collector to Mr. Marshall, who was then county clerk, to answer. Mr. Marshall did so, writing A. B. Vincent that on examination he had found the land on the forfeited list of 1862; and informing him that under the law, when land had been forfeited to the state, it was not again taxed until redeemed or sold, and advising Mr. Vincent what amount he would have to pay to redeem his land. In 1881 B. H. Bonfoey, of Unionville was employed by the Chicago, Burlington & Kansas City Railroad Company to secure for it a right of way through Putnam county. Mr. Bonfoey, having ascertained in some way (not disclosed) that A. B. Vincent was the owner of this quarter section, entered into a correspondence with him, extending over a period of about a year, trying to obtain from Mr. Vincent the right of way through the land without suit. But, failing in this, Bonfoey instituted condemnation proceedings, alleging A. B. Vincent to be the owner, and on the 7th day of September, 1882, judgment was rendered against Mr. Vincent in the Putnam circuit court condemning a right of way through the land. The money due Mr. Vincent was paid at the time to the circuit clerk, and in 1884 was received by Mr. Vincent. After the patents to the land were issued, they were delivered to A. B. Vincent, a brother of the plaintiff, who turned them over to H. D. Marshall in 1884, when he claimed to have bought the land from his brother, and to have had a deed to it from him; and at his request Marshall took possession of the land, fenced it for him, the contract being the fencing in a general way and the payment of the taxes upon it for five years. Marshall, as the agent of A. B. Vincent, after his lease was out, in March, 1889, sold the land to the defendant Means for $6.25 per acre. The money was paid by Means to Marshall, or placed in the bank at Unionville to be drawn by Marshall when he wanted to pay for the land, except $240 or $250, which Marshall loaned Means. Of this $240 or $250 Marshall sent $200 of it to A. B. Vincent, and retained the balance for his commissions. A. B. Vincent received the money, and in March, 1891, made Means a deed for the land. Means took possession of the land in March, 1889, under his contract of purchase, and has held possession of it ever since. It seems as part of the purchase money for the land Means and Marshall executed to A. B. Vincent their note for $800, which became due in March, 1896. In September, 1894, the plaintiff for the first time appeared in Unionville. He hunted up Judge Z. T. Brawford, then postmaster, and had him go with him to the recorder's office and introduce him. Vincent examined the records, and found that his brother had made a warranty deed for the land to Means, and that the Means note for $800 would fall due in March, 1896. He claimed to own the land himself, and expressed a desire to see Mr. Marshall. Vincent found Marshall at the depot. Vincent claimed that he was the owner of the land. He expressed great surprise at his brother's acts and conduct. He denounced his brother as a liar, a scoundrel, and an embezzler. He further stated that he had been at the recorder's office, and found out that the note Means had given his brother for the balance of the purchase price would mature in March, 1896. He said that his brother would probably come to Unionville then, and that he would come back, too, meet his brother, and get the money himself. He said further to Marshall that his brother had been merely his agent all this time to look after the land, and yet in a letter written to Marshall in January, 1896, he told him that he had not had a line or a word from his brother for more than a dozen years, although his brother was owing him upwards of $20,000 for money loaned, and that his brother had designedly and continuously kept his whereabouts an entire secret from him. When Means learned that the plaintiff had been at Unionville and was claiming the land, he discontinued paying any more interest on his note given to A. B. Vincent. However, shortly before the note fell due Means deposited the full amount of the note, principal and interest, in Marshall's bank at Unionville, and with it filed a claim for damages. Mr. Marshall at once notified A. B. Vincent of this. On the day the note matured, it was paid off, but the money was held by the bank to await the adjustment of Means' claim. By this time the plaintiff had arrived in Unionville; and although Mr. Marshall had been authorized by A. B. Vincent to compromise for him the claim of Means, and to pay his brother, the plaintiff, whatever was coming to him, still he preferred not to compromise with Means until he had first seen Mr. M. C. Vincent. The plaintiff remained in Unionville this time for several days, and during his stay Mr. Marshall had several long talks with him. The matter finally narrowed down to two propositions. The one was that plaintiff should pay Means $632, and Means make him a deed to the land; the other was that Means should pay the plaintiff $340 or $360 — Mr. Marshall is uncertain as to the exact amount — and the plaintiff make Means a quitclaim to the land; Means wanting a deed, as there was a break in the record title, the deed from M. C. Vincent to A. B. Vincent never having been recorded. During one of these conversations Mr. Marshall told Mr. Vincent that when his brother had made the warranty deed to Means he had turned over to him, for Means, the original certificates of entry; that these certificates had been given by him to Means, and had been left by Means at the bank, and that he (Marshall) would step over to the bank and get them; whereupon the plaintiff exclaimed that if his brother had done that he must have sold him the land. He then stated to Mr. Marshall that it might be that he had made his brother a deed for it. He further agreed to take the second proposition, viz., to take the $340 or $360, and make Means a quitclaim deed. After this settlement had been made, Mr. Marshall referred to Mr. Vincent's letter to him written in January, 1896, in which he alluded to his brother owing him $20,000.

Mr. Vincent replied to this that his brother not only owed him $20,000 for money loaned, but also a note for $12,000 besides, and went over to his trunk, and got the note, and showed it to Mr. Marshall. The note bore date somewhere in the 60's. He says he asked him for what his brother had given him the note, and he said it was given for land he had sold his brother. After the settlement had been effected, Mr. Marshall remarked that he would go over to the bank and get the money, but Mr. Vincent said to just let it be for the present in the bank; that he was going out West to see his brother, and would be gone two or three weeks, when he would return, and get the money. The plaintiff left his trunk, and was gone some two or three...