Woodside v. Durham

• Decision Date: 23 May 1927
• Docket Number: 25539
• Citation: 295 S.W. 772,317 Mo. 15
• Parties: Leigh B. Woodside, Appellant, v. Bertha Durham
• Court: Missouri Supreme Court

295 S.W. 772

317 Mo. 15

Leigh B. Woodside, Appellant, v. Bertha Durham

No. 25539

Supreme Court of Missouri

May 23, 1927

Appeal from Dent Circuit Court; Hon. W. E. Barton, Judge.

Affirmed.

Gratia Woodside Monegan for appellant.

(1) Plaintiff is not estopped to maintain this suit by reason of the fact that he may have furnished Callahan a part of the money with which to purchase the land. Plaintiff took no title in his name, had nothing to do with the trade to Balch did not know anything about it, said nothing to Balch whatever. (a) Plaintiff made a quit-claim deed to Callahan to the west half of the section, which was notice to Balch that the plaintiff was not taking any responsibility whatever in the matter. (b) An estoppel can only operate in favor of a party who is injured by the act of another, relies thereon and which caused him to change his situation or in some way to suffer detriment or loss, by reason of such reliance. Wood v. Kansas City, 162 Mo. 311; Thompson v Lindsay, 242 Mo. 76; Kline v. Groeschner, 280 Mo. 613; Guffey v. O'Reilley, 88 Mo. 429. In order to constitute an equitable estoppel, there must be not only a false representation or concealment of the facts but they must have been made knowingly by the one to be estopped and believed and acted upon by the one claiming the estoppel. Freeland v. Williamson, 220 Mo. 231. (c) The defendant claims under a quit-claim deed and by taking such quit-claim deed she assumed her own responsibility for the title, agreeing to take just what title her grantor had to convey and nothing more. Chew v. Kellar, 171 Mo 225; Weissenfelo v. Cable, 208 Mo. 534. (2) It is also claimed by the defendant that the plaintiff is estopped from asserting that the tax title is bad on account of the fact that Humphreys was sued by his initials "A. W." because the title under which plaintiff claims emanated from Humphreys by a deed signed "A. W. Humphreys." We understand that the rule established in the case of Moseley v. Reily, 126 Mo. 124, was overruled in the case of Brown v. Peake, 177 S.W. 645. (a) The title taken by Humphreys to the land was taken in the name of "A. Willard Humphreys;" the testimony in the case shows that he was known as "Willard Humphreys" and that was his name; and a man must be sued in his correct name, the name by which he is known, even though he may have an initial placed before it. Nolan v. Taylor, 131 Mo. 229. Notice to Jeff M. Thompson is good as to M. Jeff Thompson. Nolan v. Taylor, 131 Mo. 229. The land was not conveyed by Humphreys by his initials only. The body of the deed recited that it was made by "A. Willard Humphreys;" it was signed "A. W. Humphreys," but the acknowledgment recited that "A. Willard Humphreys" came before the notary and acknowledged the execution of the deed. This makes a deed from "A. Willard Humphreys" and not from "A. W." If a grantor's name be correctly recited in the body of the deed and his correct name appears in his acknowledgment to the deed, this will cure any error made in the signing of the deed. Lincoln v. Thompson, 75 Mo. 630; Houx v. Batteen, 68 Mo. 87; 1 Cyc. 586, note 20. (b) Payment of taxes and cutting of timber on land do not constitute adverse possession. Stone v. Perkins, 217 Mo. 602. (c) The possession of one tract of land will not extend to an adjoining tract, owned by a different party. Weir v. Lumber Co., 186 Mo. 397. (d) The theory of a title by limitation is that the owner of the land is presumed to see it occasionally and to know if anybody is in actual possession of it, but they are not expected to look to adjoining lands to see if there is a possession and a consequent claim of ownership. The possession of a part of a tract of land under a claim of the whole tract as provided by our statute, means a part of the tract claimed by the plaintiff. The evidence does not show any possession by defendant to the east half of Section 21; the possession being solely on the west half.

Wm. P. Elmer for respondent.

(1) The tax sale against A. W. Humphreys is good as against A. Willard Humphreys under the many decisions of this court. Brown v. Peake, 177 S.W. 645; White v. Gramley, 236 Mo. 648, 139 S.W. 127; Mosely v. Reilley, 126 Mo. 124; Stephenson v. Brown, 174 S.W. 414. Showing the real name of a defendant in a tax suit to be different from that used by him in his deed to the land, does not effect the validity of the tax proceedings. Shuck v. Moore, 135 S.W. 59, 232 Mo. 649. (2) The whole section has been conveyed as one tract from the time it was owned by appellant in 1893, continuously, eleven times, till the title vested in respondent. Under such circumstances it was one tract and possession of part is constructively extended over the whole by the usual and customary acts of ownership. Sec. 1309, R. S. 1919; 2 C. J. 235; Schofield v. H. L. & M. Co., 187 S.W. 61. (a) A contiguous body of land conveyed by one deed under one general description constitutes one tract and actual possession of one part will give grantee constructive possession of all. Section 21 was one tract. 2 C. J. 238; Heinerman v. Bennett, 144 Mo. 113; Herbst v. Merifield, 133 Mo. 272; Schofield v. Harrison L. & M. Co., 187 S.W. 61. (b) Possession by tenant is possession of the owner. 2 C. J. 246. (c) Possession of the part of the two tenants and the exercise of acts of ownership by respondent through her husband, Wm. Durham, for the required period, constitutes constructive possession of the tract. Durham's claim of ownership of all of Section 21 was notorious. Sec. 1309, R. S. 1919. (d) The same rule as to constructive possession applies to the thirty-year Statute of Limitation. Pharis v. Bayless, 122 Mo. 123. (3) One who being defendant in a tax sale accepts the surplus money arising after payment of taxes and costs, is estopped from asserting invalidity of the sale. Hartman v. Hornsby, 142 Mo. 368; Clayburn v. McLaughlin, 106 Mo. 521. The acts of appellant in his purchasing the title to this land with Callahan and executing a quit-claim deed to Callahan, so that Callahan might execute a warranty deed thereto constitute an estoppel. Callahan was a trustee holding the title to the entire section, for the benefit of himself and Woodside, and his warranties were binding as an estoppel of both. 21 C. J. 1067, 1104.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action to determine, or quiet, the title to the northwest quarter of the northeast quarter and the south half of the northeast quarter and the southeast quarter of Section 21, Township 32 north, Range 6 west, in Dent County, Missouri. The petition, filed on October 9, 1923, is conventional, plaintiff alleging that he is the owner in fee simple of the land in controversy and that defendant is claiming title thereto, wherefore plaintiff prays the court to hear the evidence bearing upon the title to said real estate, determine the rights, claims and interests of the parties therein, and that plaintiff be adjudged to be the true, legal and absolute owner thereof and that defendant be debarred from setting up, or claiming, any right, title or interest therein.

The answer is as follows:

"Now on this day comes the defendant and for answer to plaintiff's petition admits that she has a deed of record to the lands described in the plaintiff's petition and that she is claiming title to the said lands.

"Further answering the defendant denies each and every other allegation in the plaintiff's petition.

"Further answering the defendant says that the plaintiff's cause of action, if any ever existed in his behalf, accrued more than ten years prior to the date of the filing of his petition and that the plaintiff is debarred from asserting any right, title or interest, in or to said land, by reason of the ten-year Statute of Limitations of the State of Missouri. That the defendant, and those under whom she claims title, have been in the lawful occupancy and possession of lands described in plaintiff's petition under color of title to said premises, and claiming title thereto, exclusive and hostile to the plaintiff's title, and that her claim of title has been made in good faith, believing that she had a good title to said lands and that her occupation and possession has been actual, peaceable, continuous uninterrupted, notorious and hostile to any other right or title to said lands, for a period of ten years prior to the commencement of this action, and during all that time the defendant claimed title to said lands by deeds and color of title duly recorded upon the deed records of Dent County Missouri, and over that part of said lands not in the actual possession of the defendant she has exercised the usual and customary acts of ownership as are usually exercised over that character and kind of land in the vicinity where the said lands are located. That the defendant is the owner of entire Section 21, Township 32 north, Range 6 west, and that the said section constitutes one tract of land and has been conveyed as one tract of land to the defendant and those under whom the defendant claims title and was conveyed as one tract of land prior to the date of the entrance of the defendant into the possession thereof, and that the defendant has had the actual, open, notorious, hostile, adverse and continuous possession of a portion of said tract of land for more than ten years prior to the date of the filing of plaintiff's petition, and she has exercised the usual and customary acts of ownership over the remainder of the said tract of land during the said period that are generally exercised over that kind and character of land in the vicinity where said lands are located, and that she has protected the said lands against trespassers, paid the taxes thereon and performed every other act of ownership....