Vincent v. Means

• Decision Date: 10 December 1907
• Citation: 106 S.W. 8,207 Mo. 709
• Parties: MINOS C. VINCENT, Appellant, v. JOHN R. MEANS and JOHN CLAPP
• Court: Missouri Supreme Court

106 S.W. 8

207 Mo. 709

MINOS C. VINCENT, Appellant, v. JOHN R. MEANS and JOHN CLAPP

Supreme Court of Missouri, Second Division

December 10, 1907

Appeal from Putnam Circuit Court. -- Hon. Geo. W. Wanamaker, Judge.

Affirmed.

John C McKinley and Higbee & Mills for appellant.

(1) The uncontradicted evidence is that a fiduciary relation existed between plaintiff and his brother, who agreed to pay the taxes and look after plaintiff's lands. Defendant proved plaintiff's assertion of this relation by McClanahan in his interview at Salt Lake City in 1892, and by Marshall and Brawford in 1894 at Unionville. A. B. Vincent was plaintiff's agent when he leased it to Marshall in 1885 and when Marshall fenced it in July, 1885. This possession in its inception was the possession of plaintiff. He could not be tricked nor cheated out of it by any artifice of his brother. A. B. Vincent's sale and deed to Means, followed by the latter's exclusive possession, did not give the possession an adverse character. To convert a friendly or subordinate possession into an adverse possession, in any case, there must be a clear, positive and continued disclaimer and disavowal, and an assertion of an adverse right, brought home to the owner. These are indispensable before any foundation can be laid for the operation of the statute. Zeller's Lessee v. Eckart, 4 How. 296; Hamilton v. Boggess, 63 Mo. 249; Budd v Collins, 69 Mo. 139; Meier v. Meier, 105 Mo. 431; Stevenson v. Black, 168 Mo. 561; Coberly v. Coberly, 189 Mo. 17; Hart v. Adams, 86 Mo.App. 80; Pitzman v. Boyce, 111 Mo. 392; McCune v. Goodwillie, 102 S.W. 997; Stewart v. Miles, 166 Mo. 181. The court, therefore, erred in refusing declaration 3, prayed by plaintiff, and by striking out the latter part thereof inclosed in brackets. This identical declaration, including the part in brackets, was given on the first trial, was assigned as error by defendant, but received the approval of this court and is the law of the case. 184 Mo. 338. (2) The record title to this land was in plaintiff. The plat book of entries and the records of the patents in the General Land Office were notice to the world. That Marshall may have supposed A. B. Vincent was owner does not alter the complexion of the case. That A. B. Vincent never told Marshall plaintiff had made him a deed until he invented that falsehood in his letter of March 18, 1891, is clear beyond all question, from Marshall's letter of March 23, 1891, and all the prior correspondence. But if A. B. Vincent did from the first claim ownership of the land, Marshall's possession was none the less plaintiff's possession; neither he nor Means could claim any other right against plaintiff than A. B. Vincent could rightfully claim, and neither could "dispute the title of his landlord until and unless he first surrender possession to his landlord." Stewart v. Miles, 167 Mo. 181. Yet this hypothetical admission, recalled after the lapse of years, is made the basis of a claim of title. "It would be too hazardous to divest titles upon such uncertainties." Fanning v. Doan, 139 Mo. 414. It cannot be considered for the purpose of proving the execution of a deed, and of overturning a legal title, especially when positively denied by plaintiff. 2 Wharton Ev. (1 Ed.), secs. 1082, 1089, 1092-3-5; 1 Greenleaf Ev. (13 Ed.), sec. 200, n. a., and 201. The giving of defendant's declaration 1 was therefore error.

N. A. Franklin, D. M. Wilson and A. W. Mullins for respondents.

(1) The evidence on the trial tended strongly and we think to a reasonable certainty to support the claim made by A. B. Vincent, and this for a period of twenty-odd years before he sold the land to Means through Marshall as agent, that the land was his and had been conveyed to him by his brother, the plaintiff, by a deed of conveyance defectively acknowledged -- the acknowledgment having been taken by a justice of the peace in the State of Ohio. But if such deed was made by the plaintiff to his brother, A. B. Vincent, and delivered to him, it conveyed the title though defectively acknowledged and not therefore entitled to record, or though neither acknowledged at all or recorded. Vincent v. Means, 184 Mo. 327; Parsons v. Parsons, 45 Mo. 265; Stephens v. Hampton, 46 Mo. 404; Tiedeman on Real Property, sec. 810. (2) If A. B. Vincent was not the agent of the plaintiff with respect to the land in question when he by his agent, Marshall, made the sale of it to Means, and under his purchase Means entered into the actual and exclusive possession of the land, on or about March 1, 1889, and from that time on to the commencement of this action, to-wit, February 28, 1901, said defendant remained in the actual possession thereof by himself, his agents and tenants, claiming said land as his own, then the plaintiff's right of action was not only barred by the ten-year Statute of Limitations but the absolute title of the land had become vested in the defendant Means. Mississippi County v. Vowels, 101 Mo. 225; Wilkerson v. Eilers, 114 Mo. 245; Ekey v. Inge, 87 Mo. 493; Barry v. Otto, 56 Mo. 177; Fulkerson v. Mitchell, 82 Mo. 13.

OPINION

BURGESS, J.

This cause was before this court on a former appeal by the defendants, and was then reversed and remanded for further trial. The last trial resulted in a judgment for defendants, from which judgment, after an unavailing motion for a new trial, plaintiff appeals, and assigns error.

The action is ejectment for a tract of land in Putnam county. The case was tried by the court without the aid of a jury. In the former opinion of this court the facts in the case were fully stated, but upon the last trial additional facts were shown by defendants which confirmed their position on the former appeal.

As the cause was tried by the court, a jury being waived, the same presumption is to be indulged in favor of the correctness of the finding as the verdict of a jury, and it will not be interfered with by the Supreme Court unless there be an absence of substantial evidence to sustain such finding. [Irwin v. Woodmansee, 104 Mo. 403, 16 S.W. 486; Godman v. Simmons, 113 Mo. 122, 20 S.W. 972; Gould v. Smith, 48 Mo. 43; Gaines v. Fender, 82 Mo. 497.]

Plaintiff contends that the court erred in refusing to give declaration of law numbered 3, as asked by him, and in giving it in a modified form. As asked, it reads:

"If the court, sitting as a jury, find from the evidence that plaintiff entered the land in question and made arrangements with his brother, A. B. Vincent, to look after the land and pay the taxes thereon, and his brother agreed to do so, and plaintiff went away and has resided abroad, relying upon his brother to pay the taxes on said land, and about the year 1885 said A. B. Vincent leased the land in his own name to witness Marshall, without disclosing that he was acting as agent for plaintiff, and witness Marshall fenced the land and paid taxes thereon under the terms of his lease for the use of the pasture, and remained in possession of said land under said agreement until March, 1891, when said A. B. Vincent sold and conveyed said land to defendant Means, then you are instructed the relation of said A. B. Vincent to plaintiff was that of agent, and the possession of witness Marshall was not under claim of ownership, either in himself or of A. B. Vincent, but was consistent with and not in opposition to nor adverse to plaintiff's title and ownership; in other words, the law presumes that Marshall's possession up to the time A. B. Vincent conveyed said land to Means, in March, 1891, was in law and in fact plaintiff's possession, and this possession could not be changed to an adverse possession by any intent on the part of A. B. Vincent not disclosed to plaintiff.

"[Before this presumption of the law can be overthrown, defendant Means must show by the preponderance or greater weight of the evidence that actual notice was brought home to plaintiff ten years before this suit was brought that A. B. Vincent claimed to be the actual owner of said land, and had repudiated the relation of agent for plaintiff as to said land, and that plaintiff had notice...