Thompson v. Stilwell , 253 Mo. 89 ( 1913 )

BLAIR, C.

This proceeding was commenced by Alonzo Thompson. Since the appeal was taken he died and Alonzo H. Thompson and Hattie I. Lindley, his sole heirs and devisees, have been substituted as appellants.

Suit to Quiet Title.

This is a suit to ascertain and determine title under section 2535, Revised Statutes 1909. The land involved is the west half of the northeast quarter of section 2, township 41, range 19, .r A,. , . „ Morgan county, Missouri. The whole ot the quarter section was patented to Henry Alcorn, who executed a deed therefor to John P. Baker, who, in turn, executed a deed for the same land to H. A. Swift, which deed was filed for record September 12,1868', and on April 25', 1870, Swift executed a deed for the same land to Alonzo Thompson, and this deed was recorded April 30, 1870.

Respondent claims by mesne conveyances under Hugh Lynch who purchased at a sheriff’s sale on an execution on a transcript of a justice’s judgment against John P. Baker in St. Louis county. This execution issued April 23, 1868. The execution was levied May 7, 1868', and the sale thereunder occurred September 22, 1868, and the deed from the sheriff to Lynch is dated September 23, 1868, and was filed for record January 6,1871. Respondent also claims under the ten-year Statute of Limitation. Alonzo Thompson paid the taxes beginning with the year 1871, except for the years 1873, 1875, 1877, 1889-, 1893, 1895 and 1896. Lynch in December, 1873, executed a deed to Max Joachimi and he paid the taxes for the years in which Thompson did not pay them. Each of the two claimants knew the other was paying taxes. At the close of the evidence plaintiff’s counsel requested the court, sitting as a jury, to give an instruction to the effect that under the pleadings and the evidence the finding must he for plaintiff. This, the court refused to do. No other instructions were asked or given, and the court found for defendant .and rendered judgment accordingly.

Sec.^253g5,g

Action at Law: Appeal.

This is a simple proceeding under section 2535, Revised Statutes-1909, and there is nothing jn the petition or answer which gives it an equitable character. The rules applicable in ordinary actions at law, therefore, govern the case in this court. [Lee v. Conran, 213 Mo. 404; Cousins v. White, 246 Mo. l. c. 309.] This being true, if there is any legal theory, supported by substantial evidence, which justifies the trial court’s finding, the judgment must be affirmed.

Adverse Possession: Color of Title: Evidence.

There was evidence that Max Joachimi in 1873 paid Lynch $400' in consideration of a deed for the' quarter section including the land in suit; that in the summer or fall of 1874 he put up a cabin on the east half of the quarter section and for seven or eight years, off and on, did some mining on the west half thereof, miners occupying the cabin mentioned ; that in 1874 he leased five or six acres of the west half to one Moore and had it cleared and fenced, and Moore cultivated it as Joachimi’s tenant from 1874 until he died, about 1897; after his death Joachimi leased the same ground to Todd, who cultivated it until he died, about 1901 or 1902. During this period .Joachimi had much of the timber cut off the unfenced portion of the tract and sold standing timber to others. In his rental contract with both Moore and Todd it was agreed they should keep trespassers off of the unfenced portion and protect the timber, and there is evidence they did so, at least that Moore did.

The oonrt questioned Joacbimi as follows: “Q. Mr. Joachimi, now you say there was some four or five or six acres cleared? A. Yes, sir.' Q. The main part of the cleared tract being on the west half? A. Yes, sir. Q. Some little of it being on the east half? A. Yes, sir. Q. Now, was that fenced? A. Yes, sir. Q. Well, was it cultivated every year for as much as ten years? A. Yes, sir; more than that. Q. And continuously fenced? A. Yes, sir.”

Other witnesses corroborated Joachimi as to the fact that he leased the cleared portion of the land in suit to Moore in 1874; that Moore cultivated it continuously until his death — about 1897; and that Todd then rented the parcel from Joachimi and cultivated it until he died — about 1901.

No one bnt Joachimi and his tenants, Moore and Todd, had ever been in possession of any part of the land. In 1877 Alonzo Thompson sent to the collector of Morgan county a check for $3'.10 in payment of the taxes on the land in suit and the east half of the same quarter section. The collector returned the check and wrote Thompson that the taxes on this land for 1877 had been paid by Joachimi. March 24,1890', the collector wrote Thompson that the taxes of 1889’ had been paid by Joachimi, and in 1893 and 1897 similar letters were written by collectors to Thompson concerning the taxes of 1893,1895 and 1897. In 1893 and 1897 Thompson’s checks for taxes were returned to him.

The statute (See. 1882, R. S. 1909) provides that: “The possession, under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract. ’ ’

■ 'It cannot be donbted that Joachimi had at least color of title to the whole of the land (Dunning v. Hudson, 217 Mo. l. c. 100, 101), and there is evidence sufficient to support the finding that he entered in good faith and took and for twenty years held possession of part of the tract in the name and under claim of title to the whole. The acts of owership the evidence tends to show he exercised over the unfenced and uncleared portion of the land, were of the usual character, the nature of this part of the tract being considered. [Hickman v. Link, 97 Mo. l. c. 490; Leeper v. Baker, 58 Mo. 400.] These things were sufficient to satisfy the requirements of the statute.

There having been substantial evidence to support .a finding under the statute, this court cannot mow substitute itself “for the trier of the facts, and retry it on the evidence.” [Gaines v. Saunders, 87 Mo. l. c. 563.]

It is suggested Moore fenced the cultivated parcel of the land through mistake and that this fact introduces into the case the rule relating to a situation in which one in mistaken possession of part of another’s property claims only to the true line and not adversely. The question whether Moore fenced the land by mistake or fenced it at all, for himself, was, at most, one of fact, and a finding that he did not do so was clearly warranted by the evidence. Further, if he did so fence it, the evidence is all to the effect that from 1874 forwiard he occupied it as Joachimi’s tenant. Neither Moore nor anyone claiming under him sets up title or claim to any of the land.

In view of these considerations, it appears that the evidence warranted a finding for defendant on the theory of adverse possession, for the requisite period, under color of title. It, therefore, becomes unnecessary to go into the questions raised in the excellent brief of plaintiff’s counsel with respect to the soundness of JoacMmi’s record title. The judgment is affirmed.

Brown, C., concurs.

PER CURIAM. — The.foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.