Wofford v. Martin

• Decision Date: 29 February 1916
• Docket Number: No. 17672.,17672.
• Parties: WOFFORD v. MARTIN et al.
• Court: Missouri Supreme Court

183 S.W. 603

WOFFORD v. MARTIN et al.

No. 17672.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action to quiet title by Ella Wofford against William B. Martin and others. Decree for plaintiff, and defendants appeal. Reversed and remanded.

Wm. P. Elmer, of St. Louis, for appellants. J. D. Gustin, of Kansas City, for respondent.

BOND, J.

This is an action filed by Ella Wofford, the plaintiff, to quiet title to 160 acres of land situated in Dent county, Mo.

In the year 1856, John B. Smith acquired from the government title to 160 acres of land in Dent county, Mo., upon which he lived with his family until the outbreak of the Civil War. During the war the buildings on the land, except a smokehouse, were destroyed by soldiers, and Smith and his family went over to his uncle's home some distance off. In the following spring they moved again, this time over to one William Sevier's place, about one-half mile away, at which place his widow resided when he was killed in 1864, during the last year of the war.

About a year after the husband's death his widow, Mary A. Smith, with her family moved back upon the land in question and stayed there about one year, occupying a smokehouse, the only building remaining on the land, as her residence, at the end of which time she went to Tennessee to live.

On July 4, 1866, letters testamentary were granted on the estate of the husband and on October 23, 1872, an order of sale was made which stated that Thomas W. Howe, the administrator, was to sell the property at a private sale on or before the second Monday in January, 1872, otherwise at a public sale as directed. The land was sold April 3d at a private sale to William Master, which was contrary to the directions of the order of sale. The order of sale misdescribed the lands in suit by reciting that the land was situated in township 34 instead of 33.

On November 28, 1873, William Master, by a warranty deed, conveyed the land in controversy to John B. Miller, the father of the present plaintiff. In 1876, Mary A. Smith, the widow of John B. Smith, came back from Tennessee and wanted to sell to Miller her interest as dowress in the place, which interest Miller at first refused to buy, but after her application to the court to set off her dower, he paid her $100 in consideration of which she gave him a quitclaim deed conveying her dower in terms. Though some steps were taken preparatory to the setting off of the widow's interest no part of the land, so far as the evidence shows, was actually surveyed and set aside as her part; and after the purchase by Miller all proceedings in the matter came to an end.

From that time on Mr. Miller continues with his daughter, the present plaintiff, in the quiet and undisturbed possession of the land up until his death which occurred about 8 years prior to the filing of this suit. Thereafter the land was held by the plaintiff and her husband under a deed from the father, John B. Miller.

The defendants in this case are the heirs of John B. Smith and claim a fee-simple title to the estate, subject to the dower interest of Mary A. Smith.

The case was tried at the April term of the circuit court of Dent county. A jury was waived by the parties and the case was submitted to the court for determination, who decreed that plaintiff was the owner in fee simple of the land in controversy.

II. There is only one question, and that of law, in this case. It is conceded that the plaintiff has no title to the land, unless one created by the statute of limitations while it was held by her father and herself. This for the reason that her father, who deeded the land to the plaintiff, himself held under mesne conveyances from the purchaser at a void sale of the land by the administrator of J. B. Smith whose title emanated directly from the government, and the defendants are the wife and children of the patentee.

Unless, therefore, the defendants (who are the heirs of the patentee of the land) have parted with their title by grant or legal divestiture (neither of which happened) or have lost...