Western v. Flanagan

• Citation: 25 S.W. 531,120 Mo. 61
• Parties: Western et al. v. Flanagan et al., Appellants
• Decision Date: 05 February 1894
• Court: United States State Supreme Court of Missouri

25 S.W. 531

120 Mo. 61

Western et al. v. Flanagan et al., Appellants

Supreme Court of Missouri, First Division

February 5, 1894

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Teasdale Ingraham & Cowherd for appellants.

(1) Whether the tax deeds were or were not sufficient to pass the title, no exception was saved to the action of the trial court in admitting them, and they are in the record as properly as if all the preliminary proof had been made. Margrave v. Ausmuss, 51 Mo. 561; Parsons v Railroad, 94 Mo. 292. (2) Where the occupant is compelled to leave the premises by the act of God or the public enemy, or by the illegal act of the true owner, the continuity of the statute is not broken. The assertion of text writers that any break in the possession arrests the running of the statute, is based upon cases where there was a voluntary leaving. If it was involuntary the statute is not arrested. Hamilton v. Boggess, 63 Mo. 233; Clark v. Potter, 32 Ohio St. 63; Fugate v. Pierce, 49 Mo. 441; La Frambois v. Jackson, 8 Cow. 615; McColgan v. Longford, 6 Lea (Tenn.), 108; Smith v. Larrilord, 10 Johns. 338; Ferguson v Bartholomew, 67 Mo. 212. (3) Respondents are presumed to have known of the adverse claim of appellants. Dausch v. Crane, 109 Mo. 337. (4) The deed from Lucas to Grider was improperly admitted. Without it respondent had no title. Geary v. Kansas City, 61 Mo. 378.

H. M. Meriwether for respondents.

(1) The contention that the acknowledgment of the deed from Hester Lucas to Western and Grider is bad, can not avail appellants. First. It had been of record for more than thirty years and respondents were claiming title under it. R. S. 1889, secs. 4864, 4865, 4869. Totton v. James, 55 Mo. 494; Wilson v. Albert, 89 Mo. 541. Second. Appellants made no specific objection to the deed when offered in evidence. Clark v. Loan Co., 46 Mo.App. 248. (2) The tax deed under which appellants claim, is void for a number of reasons: First. There are a number of tracts sold in bulk for one sum without stating the amount of taxes due against each tract, and it also appears that the several tracts belong to different persons. For this reason the deed is absolutely void. Keene v. Barnes, 29 Mo. 377; Guffy v. O'Riley, 88 Mo. 418. Second. The law required twenty days' public notice to be given for the sale of real estate for taxes, while the deed recites merely that the advertisement was made as required by law without stating the length of time. This is not sufficient, hence the deed is void. Acts, 1858 and 1859, sec. 28, p. 219; Spurlock v. Allen, 49 Mo. 178; Spurlock v. Dougherty, 81 Mo. 171; Lange v. Fisher, 49 Mo. 307. Third. The description contained in the deed is so indefinite as not to describe any land whatever, and certainly not the land in controversy; hence the deed is absolutely void. Lowe v. Ekey, 82 Mo. 286.

OPINION

Brace, J.

This is an action of ejectment to recover two acres of land in Jackson county, described in the petition by metes and bounds. The answer was a general denial. The cause was tried by the court without a jury. No declarations of law were made. The finding and judgment was for the plaintiff, and the defendant appeals.

It was agreed that Hester Lucas was the common source of title. To show title, the plaintiffs introduced in evidence a deed from Hester Lucas dated May 2, 1857, acknowledged by her on the same day before the mayor of Kansas City, and duly recorded in said county on the twenty-second of May, 1857, conveying a tract of eleven acres of which the land in question is a part, to W. W. Western and B. C. Grider, and parol evidence showing that the plaintiffs are the heirs at law of the said Western and Grider, deceased.

The defendants, to show title, introduced in evidence a tax deed from the register of the City of Kansas, dated the twenty-second day of July, 1863, and recorded on the third day of August, 1863, purporting to convey, among other lands, "two (2) acres in the northwest quarter of section six (6), township forty-nine (49), range thirty-three (33), the property of Hester Lucas" to Joseph P. Howe; a quit-claim deed dated the sixth day of September, 1865, from said Howe and wife to Edward Holloeldt for two acres of land by the same description, and parol evidence tending to prove that some of the defendants (under whom the other claims) are the heirs at law of the said Holloeldt, and that the said Holloeldt went into possession of the premises in 1862, or 1863, under a lease from Howe, and remained in possession thereof until the year 1868 or 1869, when the land, which was on the shore of the Missouri river, was washed out, and its possession abandoned by him. After remaining under water for some years the river receded, or filled in the soil upon the premises and it became again dry land.

In October, 1889, the plaintiffs, by their agent, fenced in the whole of their eleven acre tract, within the boundaries of which was included the two acres in controversy. Afterwards the defendants, by their agents, entered upon the land and fenced in the two acres in controversy within the plaintiff's fence, and afterwards on the twenty-sixth of March, 1890, this suit was brought.

I. Counsel for appellant, at the close of their brief, say the deed from Lucas to Western and Grider was improperly admitted, and simply cite us to Geary v. Kansas City, 61 Mo. 378. From which we infer that they claim that the acknowledgment was defective because certified by the mayor under his private seal as in that case. They failed to call the attention of the court below to such defect by a specific objection, on the trial, when the consequences thereof might have been avoided, and they will not be permitted to avail themselves of it now on review of the action of that court.

II. To...